Family Law

Melanie Barnes, Assistant Solicitor, Family Law Associates LLP

The recent case of Secretary of State for Work and Pensions v Wincott [2009] EWCA Civ 113, [2009] 1 FLR 1222 may well increase the number of applications for variation of child maintenance to the Child Support Agency (CSA) as the Court of Appeal has made clear that dividends received by the non-resident parent (NRP) qualify as income for the purposes of variation within the Child Support (Variation) Regulations 2000, reg 19(1A) (the 'variation regulations'). This balances the unfairness of the current system which allows the NRP, typically self-employed, to reduce his basic salary to a minimum in order to achieve a lower child maintenance assessment. In order to include any additional income in any assessment, it will still be necessary for the parent with care (PWC) to make an application for a variation to the CSA.

This article gives an overview of the procedure for variation of child maintenance so that clients can be advised of the process of application to the CSA as well as their rights to appeal if they do not agree with the decision. It should be noted that the rules in respect of variations have not been amended by the Child Maintenance and Other Payments Act 2008 (CMOPA 2008) and it is therefore assumed that the current system will continue with the exception that the powers previously conferred on the Secretary of State will now be vested in the Child Maintenance and Enforcement Commission (CMEC).

It should be noted that the CSA is to be replaced in the future by the Child Maintenance and Enforcement Commission, which is colloquially known as CMEC or the Commission. CMEC became an entity in the latter part of 2008 and effectively, since that date, CMEC has assumed responsibility for child maintenance policy and the CSA from the Department of Work and Pensions. However, at present, the CSA currently operates under the umbrella of CMEC but as a separate entity, at this time, until the organisation is effectively phased out between 2001 and 2013. Therefore to avoid confusion in this article, the statutory child support system is referred to as the CSA.

To read the rest of this article, see October [2009] Family Law journal.

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