Child Maintenance - Changes ahead.

This month saw a new child maintenance formula introduced for the CSA to calculate child maintenance. There has been little detail published about the new scheme so I thought I’d do a bit on this.

Initially, the scheme will apply to all new cases where there are 4 or more children and will be opened up gradually, with all cases falling under the new formula from early 2014.

The new formula uses gross income instead of net income, which has been used for some time to form the basis of the calculations by the CSA.

It is hoped that in using gross income figures this will avoid delays and make it easier to establish self-employed income, by using tax returns and information submitted to HM Revenue & Customs instead of relying on documentation and information from the parent themselves. It should also help to make it more difficult for parents to minimise the income assessed in order to reduce their child maintenance liability.

The new formula is to be applied in 2 parts, one for the first £800 of gross weekly income (12% for one child, 16% for 2 children and 19% for three or more) and the second for any gross weekly income over £800 (9% for one child, 12% for two children and 15% for three or more). There is a cap of £3,000 per week gross income, beyond which parents shall have to apply to the Court.

There will continue to be reductions in maintenance if the paying parent is financially responsible for other children, is a step parent to other children in his/her household or to take account of overnight stays.

Controversially, there will be a charge for using the CSA to assess and collect child maintenance, whereas at the moment this is free. The charge is likely to come in once the new formula is being applied to all cases.

Consultations on the level of that charge shall end shortly but some critics say that charges may not be affordable for all parents and will see money effectively taken from the children it was meant to support.

Existing cases will not be affected until late 2013 but when they are it will mean that all currently paying parents will be given an opportunity to establish a direct payment to the other parent (even those parents who are paying through the CSA at the moment because of their history of non-payment). The CSA has a direct payment scheme, which would mean that the paying parent can make their payments direct but without the receiving parent having to disclose bank details etc.

Failing any agreement or direct payment, a fresh application will have to be made to the CSA by the parent with care of the children.

Critics of this part of the scheme have suggested that this may allow perpetrators of domestic violence to manipulate or financially control their ex-partners by making direct payments but changing the dates or missing payments, the only other option for the victim to be to apply to the CSA once again and be charged.

The move to use gross income figures is likely to help with accurate assessment and enforcement of child maintenance but the proposed charges may, for many, be an obstacle to obtaining a secure financial future for their children, which ironically is exactly what the child maintenance scheme is supposed to achieve.

As with many of these things, the devil is in the detail so I think we’ll have to wait and see how it all works in practice.

A stable future?

It has been recently reported that by 2047 families headed by married couples will be in the minority, at just 49.5%, if the current rate of decline in marriages continues. The think tank calls for additional government focus and support to ensure family stability, the breakdown of which costs society an estimated £44billon per year.

The proportion of families headed by a married couple has declined by 5% in the last 10 years and cohabitation has increased by some 3%. I have posted earlier about the marriage foundation, which extols marriage as the gold standard. There certainly are studies to support that cohabiting relationships are less stable than married ones.

And yet, I wonder how much impact any government schemes or proposals would really have in turning the tables and encouraging people to marry. There is talk of need for a Government department for families to tackle family breakdown and introduction of a transferable tax allowance for married couples to promote marriage.

Financial incentives to marriage are not, in my opinion, likely to make a difference. I cannot think that the vast majority of people marry for tax or any other financial benefit that they might receive from the state and if they do, how stable is their relationship likely to be in the future?  Are those people then to be discouraged from separation even in the most distressing of circumstances because to do so would be financially disadvantageous? Is that how we see our future?

The CSJ comments that more must be done to strengthen families in the poorest communities to ensure social recovery and economic growth – will financial incentives such as transferable tax allowances make marriage more appealing in these communities? How does this sit with cuts to state funded benefits impacting on many families up and down the country and increasing the pressure on them?

If stability of marriage, or any other relationship, is the goal then I do think there needs to be more done on a deeper level – to encourage people to work through problems or communicate more effectively – how or if the government is placed to do that is questionable.

The real difficulty may be that society as a whole has changed and that future generations view their lives very differently. Relationships now take on many forms and I wonder whether younger generations will hold marriage to be the “gold standard” whatever incentives or support there is?

The fact is that, unless and until sufficient is done and public opinion is swayed, cohabitation will continue to increase, leaving many people in precarious positions on separation and without any real understanding of their legal rights.

Following the logic of the CSJ, perhaps education on cohabitation and its various potential legal/financial pitfalls might persuade more into marriage instead?!

Real life drama – Part 2

Following on from my last post here’s the next storyline….

 1. The non-biological mother and Residence

Ashley is Gaby’s biological father, her mother not being around (although if she were matters might be different again). Ashley and Laurel (his wife and Gaby’s step-mother) have separated and Gabby and her half-brother (Ashley and Laurel’s son) Arthur have remained living with Laurel and have had Contact with their father until recently.

Gaby expressed a wish to stay with her father and, although he does not have appropriate housing at the moment and has suffered anger management issues, which manifested themselves in him physically attacking his own father and controlling his money, he has taken Gaby to live with him.

Much as with Paddy’s situation, the fact that Laurel married Gaby’s father does not provide her automatically with PR for Gaby – I must confess that I cannot remember far back enough to know whether there was some PR agreement made between Ashley and Laurel so I assume that there is not. Ordinarily that would mean that Gaby’s school might be in difficulty providing information about Gaby to Laurel without Ashley’s agreement. In addition, it means that technically Ashley is able to decide the big issues in Gaby’s life without consulting Laurel, including where she resides. Ashley should be consulting with Gaby’s biological mother.

Ashley is perfectly able to remove Gaby from Laurel’s care but of course he must consider Gaby’s best interests. If Laurel wished to prevent Gaby’s removal from her care or seek her return then she would need to make an application to the Court for a Residence Order in her favour – as she is Gaby’s step-parent.

In determining Gaby’s Residence, the Court would need to have regard to the “welfare checklist” under the Children Act 1989, which includes the child’s wishes and feelings (considered in the light of their age and understanding), the child’s physical and emotional needs, the likely effect of any change of circumstances, how capable each party is of meeting the child’s needs and any harm or risk of harm to the child.

Gaby, as I understand it, is about 10 years old and is clearly capable of expressing a view. Her wishes will not be the overriding factor, given her age, and although she is aware of the difficulties that her father has had as regards his anger she is probably not old enough to understand any on-going risk to her – if indeed there is any, on the basis that he has been having unsupervised Contact with the children.

The Court would have to assess any anger management issues that Ashley continues to have and any risk that he might pose. In addition, they would have to weigh into the balance Arthur’s best interests and whether it would be appropriate to split the siblings or whether this is likely to cause them more harm. If it is decided that to split the siblings is not appropriate, and it is unusual, then the Court will need to balance the needs of both children in coming to a solution.

The fact that Ashley is Gaby’s biological parent is a factor that the Court will have to consider but it is not determinative. It is certainly a contributor to the Court’s balancing exercise, as will be the length of time that Gaby has been with her father by the time any Court application is made. Laurel has, however, parented Gaby for some significant time and her relationship with Laurel will also need to be considered.

So…..we’ll see what action Laurel decides to take - will the children continue to grow up in separate households, will Arthur move also to reside with his father or will Gaby have to return to Laurel’s care…you never know, although far less appealing as a soap storyline than a Courtroom battle, the show might favour an amicable resolution in the children’s best interests as the real world does!

Real life drama – Part 1

Ok, so I admit it – I do watch soaps at home – Emmerdale and Coronation St are my guilty secrets – I still struggle to believe that so much drama can happen in one small village/street…

Anyway, for those of you not aware, recently Emmerdale has seen its fair share of family breakups – children caught in all of them – and Coronation St. sees an abusive relationship play out, baby in tow.

The current storylines highlight issues that we see frequently when families separate and so I shall go through them and the legal points they raise over a couple of posts…

1. The Step-family and removal from the jurisdiction

Marlon fathered baby Leo with his then partner Rhona – they separated when she was pregnant and she formed a relationship with Paddy, whom she married. All was well and Marlon was seeing Leo (who has Downs Syndrome) regularly. Paddy was offered a job in New Zealand and they all agreed to go with Leo. Marlon changed his mind and wanted baby Leo to stay in the UK – all hell broke loose….

There are several issues that this potentially throws up. Firstly, Marlon and Rhona were not married when Leo was born – unless Rhona named Marlon on Leo’s birth certificate (which from memory she did) he would not have Parental Responsibility for Leo and she would be the only person to have this. This would have meant that there would be nothing legally to prevent her changing his name, removing him from the jurisdiction or taking other important decisions in his life without consulting Marlon.

Paddy’s status in Leo’s life as his step-father is also an issue. Simply marrying Leo’s mother does not of itself provide Paddy with Parental Responsibility for Leo. Marlon (assuming he has PR) and Rhona could have agreed to execute a PR Agreement to provide Paddy with PR for Leo but unless they did that he would have to apply to the Court for an Order to obtain PR.

This doesn’t affect matters day to day because Rhona has PR for Leo and it is unlikely that Paddy would ever have to make any important decision for Leo alone – consider though if Rhona were to die – Paddy would almost certainly need PR were Leo to remain with him.

Marlon commenced Court proceedings for Residence of Leo when he changed his mind about leaving for New Zealand and the Court granted an interim order to prevent any removal called a Prohibited Steps Order. Rhona left the jurisdiction with Leo anyway. Not only has Rhona breached the terms of the interim Order that the Court made, she also has committed an offence under the Child Abduction Act if Marlon has PR and she removes Leo for more than a month.

She also is potentially is liable to be prosecuted for “child abduction”.

To some that seems odd on the basis that Leo is her child but “child abduction” is the wrongful removal or retention of a child. That removal or retention is considered “wrongful” where it breaches the rights of custody of the other person, institution or other body under the law of the country in which the child was habitually resident immediately before the removal/retention.

Where that has happened, the Hague Convention will come into play – assuming that the other country, where the child has been removed to or retained in, is a signatory.

New Zealand is a signatory of the Hague Convention and, as Marlon had Parental Responsibility for Leo (being named on his birth certificate) his rights of custody had been breached. The term “rights of custody” do not necessarily refer to who the child was living with – there has been case law on this point that has established that it is a wider term that can encompasses both rights given by Court Order, PR and where care is being given on a daily basis and for all intents and purposes a person is exercising PR and caring for the child, irrespective of any Court Orders.

The other argument in this case could be that Rhona had in any event breached the Court’s rights of custody – as there were pending proceedings for Residence of Leo in front of the Courts here and in removing the child, she has interfered with the Court’s right to determine Leo’s residence.

Marlon’s correct course of action would be to approach the Central Authority for Child Abduction, who will in turn contact the Central Authority in New Zealand to secure Leo’s immediate return to England….whether he has done so or not is something I am not clear on, having missed a few episodes recently!!

………

Irreconcilable Differences?

Several clients of mine have recently spoken to me about divorcing on the basis of “irreconcilable differences” and even one of my colleagues mentioned the concept (his area is not family law).

I was forced to explain to all that the only ground for divorce in England and Wales is the irretrievable breakdown of the marriage. I also explained that this ground must be supported by one of several “facts” – behaviour, adultery, 2 years separation with the other’s consent, desertion or 5 years separation.

Whilst going through the explanations and answering the questions that ensued, it stuck me that their misconception about the divorce process and the ground for divorce in this country had almost certainly come from watching US dramas/reading articles about celebrity divorces in the papers – almost all of which mention one party “citing irreconcilable differences”. Fine if you are divorcing in the US.

Of course no-one should or would have reason to know the ins and outs of the divorce process in this country unless they were practising family law or had been through the process before but it did make me wonder where people seek out information when they are faced with separation or divorce – especially given that these clients were adamant that the information was correct and that their planned course of action was the right one.

At such an important and emotionally charged time in their lives, are clients prepared to avoid UK solicitors at all costs and instead rely on pieces of information picked up from friends, TV, the media etc.

I can only say what I said when faced with those clients and my colleague – you wouldn’t have a look around online to obtain bits of information and then have a go at extracting a tooth, plumbing in a bathroom or fixing a car – at the very least you would obtain some expert advice.

It is perhaps our fault as a profession that we have not appeared approachable enough, have not educated sufficiently and have not done enough to change the perception that people have about the costs involved.

That is surely now coming to an end with the entrance of ABS and certainly costs and accessibility are becoming a point of difference between firms.

Fixed fee options, free initial consultations, DIY divorce packs, factsheets etc. are all services we have developed to educate people and enable them to regain control of costs and action at a time when most feel that they are spiralling out of control.

I believe that many in the profession are doing what they can to make access to information and advice easier and less intimidating for clients but, for things to get better, there must be some change of culture… some general consensus that it is better to obtain expert advice before taking action and that Solicitors are not all smoke and mirrors and actually have some expert knowledge and value to give.

Without that change, I fear that people will continue to shy away from seeing a Solicitor and take action on the basis of the piecemeal (often incorrect) information that they pick up or are given by well-meaning friends – lessons might be learnt when things go wrong and legal advice and action is needed to right it but that is far too late and can be more costly in the long run.

So…. don’t struggle alone or worry about what you are or are not doing….contact Solicitors’ firms and I am prepared to bet that the majority will offer free initial consultations or a fixed fee initial appointment….get the correct legal advice before taking action and ask solicitors whether they do fixed fee services….some already do and in the long run I suspect that this will become more common.