28 - Parentage disputes and child support – court proceedings and alternatives
As a party boy, Mills loves a night out. When Mills lived in Blackpool, he was frequently seen out with social media influencer Tasha and there were rumours of a romance between them although Mills strongly denied this. However, since Mills moved to Paddington United the rumours have died down.
One morning Mills gets a text from Tasha telling him she is 3 months pregnant with his child. Mills rings Tasha and tells her the baby can’t possibly be his, after all they only slept together a few times and she told him she was taking contraceptives. He tells Tasha if she keeps the baby then it is her problem and nothing to do with him.
6 months later Mills gets a letter from Tasha’s solicitor inviting him to take a DNA test to confirm he is the father of Tasha’s newborn son, Mills Junior. Tasha’s solicitor also invites Mills to attend mediation with Tasha to discuss financial support for Junior.
Mills immediately goes to see celebrity lawyer Candice. Candice is well known for her aggressive no-holds barred approach to family law issues. Candice tells Mills she does not believe in resolving matters out of court and anyway Tasha does not have the money to make a court application. Mills agrees to sit tight and for Candice to send a letter to Tasha confirming he will not take a DNA test.
A few weeks later Mills receives a letter from the Child Maintenance Service (CMS) explaining Tasha has applied for a maintenance calculation on the basis he is Junior’s father, asking him to confirm whether or not he accepts he is Junior’s father and to provide evidence such as a negative DNA test. Mills refuses to take a DNA test and the CMS respond with a maintenance calculation for Mills to pay Tasha £1,274 pcm. Mills promptly changes his mind and takes a DNA test but it only proves he is Junior’s father.
Mills then receives a court application explaining Tasha is seeking financial support from him for Junior and has made an application for Mills to immediately pay additional maintenance for Junior and meet her legal fees. Candice tells Mills not to worry – they will fight it all the way.
The court hearing for Tasha’s application quickly comes around. On the day of the hearing the paparazzi are outside court and photograph Mills who storms past them. Inside the court building Mills finds out the press want to attend the hearing!
At the hearing the judge orders Mills to make payments to Tasha’s solicitors to enable her to meet her legal fees for her application for financial support for Junior and for Mills to pay additional maintenance to Tasha for Junior.
Outside of court and furious about the outcome Mills tells Candice that Junior needs to come to live with him – he’s more than capable of taking care of his son and he knows Tasha took Class A drugs on a night out with him so she cannot be suitable to look after their child. He wants to issue an application for a child arrangements order.
So, breaking down the issues what can and might happen?
Disputes about parentage
A dispute about parentage can ultimately be resolved by an application to the court that someone is or is not a legal parent, called a declaration of parentage. Unless a child has been conceived through fertility treatment using a donor or surrogate then the court will usually direct DNA testing. However, the court cannot force someone to take a DNA test if they refuse. If someone refuses to take a DNA test the court can consider other available evidence and may draw conclusions from the refusal to take a DNA test.
If an application is made to the CMS (see further below) and there is a dispute about parentage the CMS will consider evidence from both parties and can invite the parties to complete a DNA test. Where someone refuses to take a DNA test then the CMS can assume that person is a parent until it is proven they are not.
Maintenance through the Child Maintenance Service (CMS)
The Child Maintenance Service (CMS) is a statutory service which deals with applications for a parent to pay maintenance for a child. There is a formula the CMS use for working out how much child maintenance a person should pay which takes into account the paying person’s income up to a maximum of £156,000 gross taxable per annum, the number of nights the child stays with the paying person on a regular basis and if that paying person is supporting other children.
The technical definition of income the CMS take into account is complex but for someone like Mills who is employed on a PAYE basis the CMS will take information about his income directly from HMRC from his last filed tax return or P60. The CMS will only take into account changes to Mills’ income (upwards or downwards) since the last filed figures for him if the changes are 25% or more.
Even where the CMS is used to calculate the maintenance that should be paid, most parents will arrange to directly pay maintenance to the other. However, either parent can opt for the CMS to collect the maintenance – this means the paying parent will have to pay an extra 20% collection fee and the receiving parent will pay 4% of the maintenance they receive as a collection fee. If someone does not pay child maintenance through the CMS then there are a range of powers they can use to enforce the payments such as taking payment directly from someone’s salary.
So, if Mills did not pay the maintenance the CMS calculated was due to Tasha he could end up paying an extra 20% collection fee and find the CMS take the payments directly from his salary from Paddington United.
Financial support for children
Even if parents have never been in a relationship together or if a parent does not have a relationship with the child the court can make a range of orders for financial support for children including:
(i) Additional child maintenance if the paying parent’s income is in excess of £156,000 gross taxable per annum or in some circumstances where the CMS does not have jurisdiction to make a maintenance calculation such as where the paying parent lives outside of the UK;
(ii) Payment of school fees and other educational expenses;
(iii) Expenses arising if a child has a disability;
(iv) Financial support for young people aged 20 and over if they are still in full time education;
(v) Lump sums for specific needs;
(vi) Provision for housing although funds ordered to be paid for this purpose will be returned to the payer when the child finishes full time education.
This means although Mills and Tasha were never in a relationship together Tasha can still make an application to court for financial support for Junior. This can come as a surprise to clients who may think that they do not have any financial obligations because they were not married to the other parent.
If Tasha needs somewhere suitable to live with Junior she could ask the court to order Mills provides funds to purchase a property for her and Junior to live in until he finishes his full time education. This might include a property in keeping with the sort of property in which Mills lives and which, if Junior spends time with him, he will enjoy living in.
As Mills’ income is over £156,000 gross taxable per annum the court can make an order for him to pay additional child maintenance (often called a ‘topping up’ order) over and above the CMS calculation. The court would consider Junior’s needs which will include items such as costs of running the property Tasha lives in to holidays. Tasha is likely to argue Junior is entitled to be brought up in circumstances which bear some resemblance to Mills’ resources and standard of living. The maintenance should not be to meet Tasha’s needs but may include an element of a carer’s allowance for her.
Maintenance is always variable so in the future Tasha or Mills could apply to vary the amount he pays, for example when Mills finishes his playing career and his income drops he may apply to vary the maintenance downwards.
Junior is too young to be at school but in the future Tasha might seek an order for Mills to pay school fees for him to be privately educated. If she has a nanny or sends Junior to nursery she may seek for Mills to pay for this as part of the maintenance he pays for Junior.
Tasha might also seek other lump sums for Junior’s needs, for example to pay for a car for her to transport Junior, to suitably furnish a property for him and to pay debts she has incurred or will incur for example for legal fees to bring her application for financial support for Junior and the child arrangements proceedings.
In deciding what order to make a court will consider all the circumstances and Junior’s welfare including:
Mills and Tasha’s income, earning capacity, property and other financial resources that they have and are likely to have in the foreseeable future.
The financial needs, obligations and responsibilities Tasha and Mills have and are likely to have in the foreseeable future.
Junior’s financial needs.
Junior’s income, earning capacity (if any), property and other financial resources.
Any physical or mental disability Junior has.
The manner in which Junior was or was expected to be educated.
Ultimately the financial provision ordered by the court for a child may be very substantial depending on the circumstances.
Press attendance at family proceedings
Family proceedings, such as cases involving financial support for children and child arrangements are private proceedings. This means that members of the public cannot attend. However, accredited media representatives may attend private hearings (there are some exceptions for certain types of hearings) unless they are excluded from doing so by the court.
The court can exclude the media from all or part of private proceedings where it is necessary to do so in the interests of a child connected with the proceedings, for the safety of a person connected with the proceedings or for orderly conduct of proceedings or justice would be prejudiced by the media’s attendance.
If the media do attend then they may report information from the hearing subject to restrictions which depend upon the particular type of case – for example any children involved in the proceedings should not be identified and information provided by compulsion cannot be reported unless it is in the public domain. The court may also make reporting restrictions for example to protect sensitive commercial information.
High profile clients should therefore be warned that the press may well attend family hearing and seek to report the proceedings.
It’s easy to see that with Mills’ profile the press are likely to want to attend and report the proceedings.
Child arrangements proceedings
A child arrangements order is an order about where a child should live and what time they should spend with each party.
If Mills did apply for a child arrangements order then the court would have to consider what was in Junior’s best interests taking into account:
Junior’s wishes and feelings;
Junior’s physical, emotional and educational needs;
The likely effect on Junior of a change in his circumstances;
Junior’s age, sex, background and other characteristics;
Any harm Junior is at risk of suffering;
How capable Tasha and Mills are of meeting Junior’s needs;
The range of powers available to the court.
The focus will be on ensuring Junior has a safe relationship with both of his parents. If Mills made allegations Junior was at risk of harm in Tasha’s care then the court would have to consider whether or not a finding of fact hearing was required to decide if these allegations were true before then considering how they should impact on the arrangements for Junior. Unless there is evidence Junior is at risk of harm in Tasha’s care it is unlikely the court would order Junior should live with Mills and not Tasha. The court might be persuaded it is in Junior’s best interests to live with both of his parents and make an order about the time he spends with each of them.
Other options to going to court
If Mills had gone to a lawyer who promoted alternative dispute resolution methods such as mediation, collaborative law or arbitration then matters could have been kept out of court.
Mediation and collaborative law can help parties reach an agreement even where it initially appears they might not be able to do so.
In mediation, Mills and Tasha would meet with an independent mediator who is there to facilitate the discussions to try and reach an agreement. In some cases the mediation could take place on a shuttle basis and/or with lawyers present. It is private and enables creative solutions to be found and for emotional issues to be addressed, which will not happen in court. It can be used in tandem with court proceedings if necessary, so that if agreement can’t be reached, then the court can decide.
In collaborative law, Mills and Tasha would agree to work together with their lawyers to negotiate an agreement without going to court usually through a series of 4-way meetings where the lawyers facilitate the discussions and help Mills and Tasha reach a solution together.
Even if Mills and Tasha were not able to reach an agreement then arbitration could be used to impose a decision about the appropriate amount of financial support for Junior, where he should live and what time he should spend with Tasha and Mills. Arbitration is a form of private judging and allows parties to appoint an expert arbitrator to decide the issues either on paper or at a hearing. The process is private.
Alternative dispute resolution has the benefit of allowing parties to keep control of the process and reach solutions which meet their family’s needs and which might be different to a solution a court would impose. It is more flexible, generally much quicker (court proceedings could easily last 12-18 months), overall more cost-effective than court proceedings and entirely private – usually taking place at lawyer’s or mediator’s offices rather than court.
Mills & Reeve’s family and children team are experienced dealing with disputes over parentage, financial support for children, and offer all forms of dispute resolution.