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CHILD MAINTENANCE AND CHILD CONTACT ARE TWO SEPARATE ISSUES - AGREE OR DISAGREE?
By Karen Chapman, Peter Vassila and Rene Panayiotou
We are repeatedly told by the family court that child maintenance and child contact are two separate issues but for many parents the two issues are not so easy to separate. In practice we see and experience both sides of the coin; the frustrated parent, often the mother who facilitates and supports the time the children spend with the other parent, knowing full well they are dodging their financial responsibilities; conversely the parent, usually the father who is being held to ransom over unreasonable financial demands because of fear that time with their children will be withheld.
We put this debate to our two trainee solicitors Peter Vassila and Rene Panayiotou to consider the arguments for and against:-
AGREE - “The Time a Child Spends with Each Parent has Nothing to do with Child Support”
Having children is the biggest responsibility you will have in life. An important part of this responsibility involves making financial provision for your children’s maintenance. This is not a responsibility that you are absolved from once you have separated from your partner. For the purposes of this article, the parent that the child lives with is referred to as the resident parent (RP) and the parent the child does not live with is the non-resident parent (NRP).
The amount of child support that the NRP is required to pay is calculated by the Child Maintenance Service (CMS). A number of factors are taken into consideration when calculating this amount including the number of children you have, whether you receive any benefits, your weekly income, how many other children live in your household and how many nights a year the children stay over with you.
Whilst the amount of contact you currently have with your children influences the amount of money you are required to contribute (i.e. the more overnight contact that they have with you, the less you will need to pay), the payment of child support should not dictate the amount of contact that results. That is, you are not buying your children’s time. Paying more (or offering to pay more) does not entitle you to having more contact with your children. Similarly, being unable to meet the costs of child maintenance payments does not disentitle you from having contact with your children. This is an important point to bear in mind. If you have a loss of income, the amount the CMS requires you to pay will be reduced accordingly.
When considering contact arrangements (or making any decision on a matter that will affect a child), the Court’s paramount concern is that of the welfare of the children. The Court will consider what is best for the children and to do so they will take into account a number of criteria these include consideration of the ascertainable wishes and feelings of the children as well as their emotional needs and what the likely effect on the child would be as a result of a change in their circumstances. The Court will consider the capability of the parents at meeting the child’s needs. This will of course include the ability to provide financial means but it is not the case that the better the standard of living you can provide, then the more contact you will be entitled to.
These are examples of how the payment of child support is unrelated to contact. However, perhaps the clearest example of where the payment of child support does not influence contact is in situations where the NRP pays child support but is prevented from having contact with their children usually in extreme cases and often for complex reasons. Clearly, in such a situation, the payment of child support does not control contact and vice versa.
DISAGREE - “Child Maintenance and Child Contact are Intrinsically Linked”
Whilst we all want to believe that the financial maintenance of a child has got nothing to do with the contact that an NRP has with their child the reality sadly paints a different picture:-
The most obvious connection between maintenance and contact is evident in the CMS calculation itself. For those of you who have conducted the calculation you will already be aware that one of the questions asked is ‘on average, how many nights a year do the children stay over with you?’ From the outset it is abundantly clear that the less nights the NRP spends with their children the more maintenance they will be required to pay to RP and vice versa.
Although it is more common than ever to have two working parents who juggle work and childcare responsibilities, when parents separate, shared care is not the natural starting point. If a father does have the children 50% of the time then no maintenance liability arises. This approach acts as a big incentive for mothers to oppose an equal shared care arrangement.
Regardless of the parents, the children or the situation, whilst the CMS calculation remains the same the intrinsic connection between maintenance and contact will not be broken.
Looking at the reality of the situation where there has been a relationship breakdown between two parents and the family unit has split with one parent now having primary care of the children whilst the other parent has moved out of the family home. If the separation has not been amicable, parents have an axe to grind against each other which plays out time and again.
Scenario A: The NRP withholding maintenance to the RP who as a result restricts/prohibits contact from happening.
Scenario B: The NRP paying over and above the required maintenance to the RP for fear of contact being prohibited or restricted by RP.
Scenario C: In extreme cases, the RP alienating the children from the NRP by prohibiting all contact and using financial maintenance as the leverage. The NRP will either have to cave into the demands of the RP to see their children or alternatively, begin expensive and lengthy proceedings in an attempt to settle the matter by an application to Court.
The common thread running through all the above scenarios is the link between maintenance and contact. The result of one parent moving out of the family home often means the children are used as a pawn for financial gain.
In theory the Court uses the Welfare Principle as a foundation when considering a parent’s application for child contact arrangements. The welfare principle states that the child’s welfare must be the court’s paramount consideration whenever the upbringing of a child is being determined. The Court will apply a checklist when dealing with applications for contact which includes looking at the ascertainable wishes and feelings of the child, the likely effect on the child of any change in the child’s circumstances, the child’s age, sex, background, any harm which the child has suffered or is at risk of suffering, the capability of each of the child’s parents and any other person to whom the Court considers to be relevant.
At first glance these factors do not appear to directly relate to child maintenance. But failing to acknowledge that the issue of maintenance often has a significant role to play in these disputes is like failing to acknowledge the elephant in the room. In the most extreme cases where parental alienation is a factor courts often fail to adequately support fathers who find themselves the victim of a parent who is determined to cut them off from their children permanently. One father commented “the system is biased against anyone who doesn’t have ovaries”. Conversely Gingerbread, the organisation set up to help single parents suggests that following the introduction of the Child Maintenance Service less than half of separated parents are actually receiving the support that they should be getting. With such dimly held views and statistics around the organisations designed to help separated parents enjoy a relationship with their children and receive the financial support they are entitled to, it is deeply regrettable but perhaps unsurprising that parents resort to more desperate measures such as withholding maintenance or “no pay no see”.
Unfortunately, whether it is direct or indirect, child maintenance and contact are intertwined. The extent of the connection between the two will undoubtedly differ depending on the parent’s situation however there is no denying the connection exists.
The issue of children spending time with both parents post separation, should ideally be resolved with the children’s best interests at the heart of the decision making, rather than conflated with issues around money. However until we have a more efficient and effective family justice system that has some teeth and improved systems for the fair assessment and collection of child maintenance it is likely that these issues will continue to play out for some time to come.
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