Child Support Act 1991

The basic principles

The duty to maintain

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• (1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.

• (2) For the purposes of this Act, a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

• (3) Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.

Welfare of children: the general principle

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Where, in any case which falls to be dealt with under this Act, the Secretary of State ... is considering the exercise of any discretionary power conferred by this Act, the Secretary of State shall have regard to the welfare of any child likely to be affected by the decision.

Meaning of certain terms used in this Act

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• (1) A child is a “qualifying child” if—

• (a) one of his parents is, in relation to him, a non-resident parent; or

• (b) both of his parents are, in relation to him, non-resident parents.

• (2) The parent of any child is a “non-resident parent”, in relation to him, if—

• (a) that parent is not living in the same household with the child; and

• (b) the child has his home with a person who is, in relation to him, a person with care.

• (3) A person is a “person with care”, in relation to any child, if he is a person—

• (a) with whom the child has his home;

• (b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and

• (c) who does not fall within a prescribed category of person.

• (4) The Secretary of State shall not, under subsection (3)(c), prescribe as a category—

• (a) parents;

• (b) guardians;

• (c) persons named, in a child arrangements order under section 8 of the Children Act 1989, as persons with whom a child is to live;

• (d) in Scotland, persons with whom a child is to live by virtue of a residence order under section 11 of the Children (Scotland) Act 1995.

• (5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

• (6) Periodical payments which are required to be paid in accordance with a maintenance calculation are referred to in this Act as “child support maintenance”.

• (7) Expressions are defined in this section only for the purposes of this Act.

Child support maintenance

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• (1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children.

• (2) Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care ... applies to the Secretary of State under this subsection, arrange for—

• (a) the collection of the child support maintenance payable in accordance with the calculation;

• (b) the enforcement of the obligation to pay child support maintenance in accordance with the calculation.

• (2A) The Secretary of State may only make arrangements under subsection (2)(a) if—

• (a) the non-resident parent agrees to the arrangements, or

• (b) the Secretary of State is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation.

• (3) Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever the Secretary of State considers it necessary to do so, the Secretary of State may act accordingly.

• (4) A person who applies to the Secretary of State under this section shall, so far as that person reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State ... being provided with the information which is required to enable—

• (a) the non-resident parent to be identified or traced (where that is necessary);

• (b) the amount of child support maintenance payable by the non-resident parent to be assessed; and

• (c) that amount to be recovered from the non-resident parent.

• (5) Any person who has applied to the Secretary of State under this section may at any time request the Secretary of State to cease acting under this section.

• (6) It shall be the duty of the Secretary of State to comply with any request made under subsection (5) (but subject to any regulations made under subsection (8)).

• (7) The obligation to provide information which is imposed by subsection (4)—

• (a) shall not apply in such circumstances as may be prescribed; and

• (b) may, in such circumstances as may be prescribed, be waived by the Secretary of State.

• (8) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—

• (a) there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order made before a prescribed date, in respect of that child or those children and the person who is, at that time, the non-resident parent; or

• (aa) a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or

• (ab) a maintenance agreement—

• (i) made on or after the date prescribed for the purposes of paragraph (a); and

• (ii) registered for execution in the Books of Council and Session or the sheriff court books,

is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Child support maintenance: supplemental provisions

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• (1) Where—

• (a) there is more than one person with care of a qualifying child; and

• (b) one or more, but not all, of them have parental responsibility for ... the child;

no application may be made for a maintenance calculation with respect to the child by any of those persons who do not have parental responsibility for ... the child.

• (2) Where more than one application for a maintenance calculation is made with respect to the child concerned, only one of them may be proceeded with.

• (3) The Secretary of State may by regulations make provision as to which of two or more applications for a maintenance calculation with respect to the same child is to be proceeded with.

Applications by those receiving benefit

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Right of child in Scotland to apply for assessment

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• (1) A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the Secretary of State for a maintenance calculation to be made with respect to him if—

• (a) no such application has been made by a person who is, with respect to that child, a person with care or a non-resident parent; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) An application made under subsection (1) shall authorise the Secretary of State to make a maintenance calculation with respect to any other children of the non-resident parent who are qualifying children in the care of the same person as the child making the application.

• (3) Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care or the child concerned applies to the Secretary of State under this subsection, arrange for—

• (a) the collection of the child support maintenance payable in accordance with the calculation;

• (b) the enforcement of the obligation to pay child support maintenance in accordance with the calculation.

• (3A) The Secretary of State may only make arrangements under subsection (3)(a) if—

• (a) the non-resident parent agrees to the arrangements, or

• (b) the Secretary of State is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation.

• (4) Where an application under subsection (3) for the enforcement of the obligation mentioned in subsection (3)(b) authorises the Secretary of State to take steps to enforce that obligation whenever the Secretary of State considers it necessary to do so, the Secretary of State may act accordingly.

• (5) Where a child has asked the Secretary of State to proceed under this section, the person with care of the child, the non-resident parent and the child concerned shall, so far as they reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State ... being provided with the information which is required to enable—

• (a) the non-resident parent to be traced (where that is necessary);

• (b) the amount of child support maintenance payable by the non-resident parent to be assessed; and

• (c) that amount to be recovered from the non-resident parent.

• (6) The child who has made the application (but not the person having care of him) may at any time request the Secretary of State to cease acting under this section.

• (7) It shall be the duty of the Secretary of State to comply with any request made under subsection (6) (but subject to any regulations made under subsection (9)).

• (8) The obligation to provide information which is imposed by subsection (5)—

• (a) shall not apply in such circumstances as may be prescribed by the Secretary of State; and

• (b) may, in such circumstances as may be so prescribed, be waived by the Secretary of State.

• (9) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

• (10) No application may be made at any time under this section by a qualifying child if

• (a) there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order made before a prescribed date, in respect of that child and the person who is, at that time, the non-resident parent or

• (b) a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or

• (c) a maintenance agreement—

• (i) made on or after the date prescribed for the purposes of paragraph (a); and

• (ii) registered for execution in the Books of Council and Session or the sheriff court books,

is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made.

Role of the courts with respect to maintenance for children

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• (1) This subsection applies in any case where the Secretary of State would have jurisdiction to make a maintenance calculation with respect to a qualifying child and a non-resident parent of his on an application duly made ... by a person entitled to apply for such a calculation with respect to that child.

• (2) Subsection (1) applies even though the circumstances of the case are such that the Secretary of State would not make a calculation if it were applied for.

• (3) Except as provided in subsection (3A), in any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and non-resident parent concerned.

• (3A) Unless a maintenance calculation has been made with respect to the child concerned, subsection (3) does not prevent a court from varying a maintenance order in relation to that child and the non-resident parent concerned—

• (a) if the maintenance order was made on or after the date prescribed for the purposes of section 4(10)(a) or 7(10)(a); or

• (b) where the order was made before then, in any case in which section 4(10) or 7(10) prevents the making of an application for a maintenance calculation with respect to or by that child.

• (4) Subsection (3) does not prevent a court from revoking a maintenance order.

• (5) The Lord Chancellor or in relation to Scotland the Lord Advocate may by order provide that, in such circumstances as may be specified by the order, this section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

• (a) a written agreement (whether or not enforceable) provides for the making, or securing, by a non-resident parent of the child of periodical payments to or for the benefit of the child; and

• (b) the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.

• (5A) The Lord Chancellor may make an order under subsection (5) only with the concurrence of the Lord Chief Justice.

• (6) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

• (a) a maintenance calculation is in force with respect to the child;

• (b) the non-resident parent’s gross weekly income exceeds the figure referred to in paragraph 10(3) of Schedule 1 (as it has effect from time to time pursuant to regulations made under paragraph 10A(1)(b)); and

• (c) the court is satisfied that the circumstances of the case make it appropriate for the non-resident parent to make or secure the making of periodical payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the maintenance calculation.

• (7) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

• (a) the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment); and

• (b) the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training.

• (8) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

• (a) an allowance under Part 4 of the Welfare Reform Act 2012 (personal independence payment) or a disability living allowance is paid to or in respect of him; or

• (b) no such allowance is paid but he is disabled,

and the order is made solely for the purpose of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of any expenses attributable to the child’s disability.

• (9) For the purposes of subsection (8), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.

• (10) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if the order is made against a person with care of the child.

• (11) In this Act “maintenance order”, in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under—

• (a) Part II of the Matrimonial Causes Act 1973;

• (b) the Domestic Proceedings and Magistrates’ Courts Act 1978;

• (c) Part III of the Matrimonial and Family Proceedings Act 1984;

• (d) the Family Law (Scotland) Act 1985;

• (e) Schedule 1 to the Children Act 1989; ...

• (ea) Schedule 5, 6 or 7 to the Civil Partnership Act 2004; or

• (f) any other prescribed enactment,

and includes any order varying or reviving such an order.

• (12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

Agreements about maintenance

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• (1) In this section “maintenance agreement” means any agreement for the making, or for securing the making, of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of any child.

• (2) Nothing in this Act shall be taken to prevent any person from entering into a maintenance agreement.

• (2A) The Secretary of State may, with a view to reducing the need for applications under sections 4 and 7—

• (a) take such steps as the Secretary of State considers appropriate to encourage the making and keeping of maintenance agreements, and

• (b) in particular, before accepting an application under those sections, invite the applicant to consider with the Secretary of State whether it is possible to make such an agreement.