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Child maintenance calculations were previously relatively formulaic and easy to calculate. However, there has been a recent change in Jersey case law which has resulted in a different approach by the courts when assessing child maintenance.

Below is an explanation of the case law as it previously stood together with the current position.

Parents have a financial responsibility to their children, whether they are married or not.

The parent who is not the main day-to-day carer of the children, the “non-resident parent”, has a legal and moral obligation to pay child maintenance to the main carer of the child, the “resident parent”. The purpose of these payments is to cover the child’s living costs and their needs. The resident parent will be responsible for the child’s day-to-day expenses (housing, food, clothing, etc), so regular child maintenance payments from the non-resident parent ensures that both parents are contributing towards the upkeep of the child.

There are two ways in which the resident parent can obtain child maintenance:

• through a private arrangement between both parents; or
• by Court order.

The Case Law Previously

Previously, the Jersey Family Court was assisted by the UK Child Support Agency (now Child Maintenance Service) guidelines when considering an appropriate rate of child maintenance payments. The guidance was that the non-resident parent would pay a percentage of their net income. The rates were:

• 15% for one child.
• 20% for two children; and
• 25% for three or more children.

For example, if there was one child of the family and the non-resident parent’s “take home” pay was £1,500 per month, the child maintenance payment would be £225 per month.

This was not a strict formula, and the rate could be changed depending on certain factors, such as the financial needs of the child, the affordability to the paying party, and how much time the child spent with the non-resident parent.

In addition to child maintenance, it is common that the non-resident parent makes additional contributions towards school fees, school uniforms, school activities, childcare; and medical, dental, and optical expenses. Although this is increasingly not favoured by the Jersey courts who in many cases prefer a global payment which is added to the figure for child maintenance.

The Current Position

Since the case of E v F [2019] JRC 218, the Court’s approach to calculating child maintenance shifted from the formulaic approach used in England & Wales and instead favour more of a holistic approach by analysing the financial needs of the child, the income and expenditure of the parents (as well as their financial resources generally), and the cost of providing for the child. The purpose of this is to determine primarily that the needs of the child are met but in a way which is affordable for the paying parent. Another factor the court may consider is that the child is entitled to be brought up in circumstances which bears some sort of relationship with the non-resident parent’s standard of living and current financial resources. The Court will also take into account the arrangements for the care of the child in each individual case such as how many nights the child spends with each of his/her parents.

The Court must have regard to the following checklist when considering making an order for child maintenance:

• The income, earning capacity, property and other financial resources of the parents;
• The financial needs, obligations and responsibilities of the parties and the child;
• The financial needs of the child;
• The income, earning capacity, property and other financial resources of the child;
• Any physical or mental disability the child may have; and
• The manner in which the child was being, or was expected to be, educated or trained.

After analysing the above factors, together with the cost of providing for the child and the standard of living of the non-resident parent, a reasonable figure of child maintenance can be determined. At this point, the formulaic guidelines of the Child Maintenance Service mentioned above are used as a cross-check to determine whether the assessed amount of child maintenance is fair.

For example, if, after considering the abovementioned factors, it was determined that the non-resident parent, whose income was £1,500 per month, should pay £200 per month by way of child maintenance, the court would use the rate for one child (15%) to determine whether this amount was fair. 15% of £1,500 is £225. Therefore, it may be argued that the reduction of £25 is to account for the affordability element of the non-resident parent, or that the resident parent does not need this amount.

This approach has resulted in a level of uncertainty when assessing the appropriate amount of child maintenance to be paid in comparison with the previous approach. However, it can be said that this approach may produce fairer results in comparison.

Finally, if an agreement is reached or an order made by Court, child maintenance would normally be paid until the child turns 17 years old. This could be extended but should not extend beyond the child’s 18th birthday. Child maintenance can, however, continue past the child’s 18th birthday if the child is still in full time secondary education, and would end when they finish secondary education. There is usually provision made in the event the child chooses to attend tertiary education, whereby there would be a general review of child maintenance. There can also be special cases where the child has specific needs such as a physical disability.

To account for annual inflation, child maintenance orders would usually be subject to index linking, so there is an annual increase of payments on the anniversary of the order in line with inflation. This is increasingly a controversial element of child payments as of course not all earnings increase by the cost of living each year.

Should parents like advice on child maintenance, please contact Viberts Family law department. Our dedicated team of family lawyers are available to assist you in a way that is not only discreet but will allow us to give you answers to many of your questions. The first half an hour of our initial meeting is usually  free of charge and can give you guidance in terms of the next steps that you take.