71.The new child support rates set out in Part I of Schedule 1 to the Child Support Act 1991, substituted by Schedule 1 to this Act, are intended to provide a fair maintenance calculation in the vast majority of cases. Nevertheless, the Government recognises that there will be exceptional cases where the child support rates do not properly reflect a non-resident parent’s ability to support his children. For example, a non-resident parent may need to spend an exceptionally large amount of money keeping in touch with the children, or the net income used in working out his liability may not properly reflect the resources available to him.
72.Accordingly, the Government has decided to allow for the variation (both upwards and downwards) of the rates payable under the replacement scheme in certain exceptional cases. However, the Government is concerned to avoid simply re-introducing the complexity of the existing formula by another route. The exceptional cases in which a variation will be possible will therefore be clearly defined.
73.The structure of the new legislation follows the broad lines of the departures scheme which was introduced by the Child Support Act 1995. In particular:
	the consideration of a non-resident parent’s application for a variation may depend on his continuing regular payment of maintenance (section 28C); and
	maintenance liability will only be varied if it is just and equitable to do so.
74.However, unlike the provision for departures, an application for a variation may be made before the maintenance calculation has been completed, and the revised legislation is drafted to deal specifically with an application made in these circumstances. Regulations made under section 28G of the 1991 Act, as inserted by section 7 of this Act, will provide the rules for handling an application for a variation made after the maintenance calculation has been completed. Where the maintenance calculation is made without taking account of the variation application, liability will initially be based on an interim maintenance decision. Section 12(2), substituted by section 4 of this Act, provides for this decision.
75.This section provides the general rules governing the application for a variation before a final maintenance calculation has been made, and how the application is to be considered and decided.
76.Subsection (2) replaces sections 28A, 28B and 28C of the 1991 Act.
Part 1: Child Support. Commentary on Sections Applications for a variation Section 5: Departure from usual rules for calculating maintenance