Money Box 2

There was another set of interesting questions about divorce and separation on BBC Radio 4's Money Box today. This time the topics covered included pensions, 'aliment', parents' financial responsibility towards over 18s in education and jurisdiction. I couldn't help feeling sorry for one caller from Milton Keynes who had cohabited for 17 years, raised her partner's children and had no financial interest in any assets. In Scotland she would have been able to make a claim based on the disadvantage suffered from giving up employment to care for the children but of course in England cohabitants still have no rights.

The panel of experts were Liz Welsh, Chair, Scottish Family Law Association, Janet Tresman, Consultant, Piper Smith Watton and Simon Piggot, Partner, Levison, Meltzer, Piggot and the podcast is available here. There is also a list of useful internet links and helplines here.

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Proposed Overhaul of Family Law

Today a major new report "Every Family Matters" was published by the Centre for Social Justice, the think-tank set up by the former Conservative leader Iain Duncan Smith, which has had a major bearing on David Cameron’s social policy-making. The report claims the recommendations are a "far-reaching overhaul of the law [in England & Wales] aimed at putting marriage at the heart of family life." Key points include;

Divorce
▪ Discussing no-fault divorce is a low priority in contrast to other family law reforms.

▪ Creation of a three month period of reflection and consideration at the outset of the divorce process, which would now be commenced only by a short written notice without any allegations.

▪ Parties should be able to petition jointly under existing law Decree absolute of divorce should be capable of being applied for after four weeks from the decree nisi, instead of the present time periods.

Cohabitation
▪ For the different reasons, we do not consider that it is appropriate to make any proposals for cohabitation law reform at this time.

▪ We oppose the present Private Members’ Bill on the basis that it provides very similar rights to marriage.

Information Provision
▪ There should be information provision before the commencement of family law proceedings.

Alternative Dispute Resolution
▪ Binding family law arbitration should be introduced.

▪ There should be mandatory attempts at resolution of children disputes before the issue of proceedings.

Legal Aid
▪ Government should clearly place on record that access to justice, like education, health care and other front-line services, is an essential facet of any civilised society.

▪ The legal aid system must attract and retain specialist practitioners in all areas of family law.

Contact
▪ An amendment to the Children Act 1989 to include explicit principles of contact and residence, incorporating equal status of those with parental responsibility and the benefit to the children of both parents having a significant involvement in their lives, with the welfare of the child remaining the paramount consideration.

Relocation
▪ A change in the law regarding relocation such that an amendment to the Children Act would apply in such cases, to take better account of the changed patterns of parenting, the considerable impact on the child of relocation away from home and other home environment features and wider family members, yet taking account of the increased movement of families.

Grandparents
▪ Grandparents should be placed in a distinctive legal position.

Ancillary Relief
▪ Marital assets are all assets acquired by the parties solely or jointly during the marriage and any pre-marital cohabitation whether through passive growth or active acquisition.

▪ In conducting its fairness exercise on distribution of marital assets and non-marital assets, the court shall follow as binding any marital agreement of the parties.

▪ The marital assets, including illiquid assets, shall be divided equally between the spouses unless there is a good reason not to do so.

▪ The family courts shall have power to make child maintenance orders where both parties are not in receipt of or claiming welfare benefits and the court is making other orders between them concerning income or capital and in any event where are arrears of more than 6 months.

▪ Spousal maintenance shall continue to end automatically on remarriage but should be reduced to a nominal maintenance order after periods of six months’ cohabitation.

Full Report Source Centre for Social Justice 14 July 2009

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Child Support & Tax Credits

Despite any other failings of the the Child Support Agency I find the website of is generally very good. When the non resident parent has children living in their household their net income is reduced by an allowance before the child maintenance assessment is calculated. Information about what happens if the non-resident parent has other children living with them is on page 15 of the CSA leaflet How is child maintenance worked out? available to download here;

If the non-resident parent pays the basic rate, we will not take
into account:
• 15% of their net weekly income, if there is one child living
with them
• 20% of their net weekly income, if there are 2 children living
with them, or
• 25% of their net weekly income, if there are 3 or more
children living with them.

However one piece of information parents seem to have difficulty accessing is that when the non resident parent has children living in his/her household and he/she earns more than their new partner the household's working family tax credits are added to their net income before the CSA assessment.

The Child Support (Maintenance Calculations and Special Cases) Regulations 2000 set out the position in Rule 11, Part IV TAX CREDITS, Schedule , Statutory Instrument 2001 No. 155;

(2) Where working families' tax credit is payable and the amount which is payable has been calculated by reference to the weekly earnings of the non-resident parent and another person -

(a) where during the period which is used by the Inland Revenue to calculate his income the normal weekly earnings (as determined in accordance with Chapter II of Part IV of the Family Credit (General) Regulations 1987[42]) of that parent exceed those of the other person, the amount payable by way of working families' tax credit shall be treated as the income of that parent;

(b) where during that period the normal weekly earnings of that parent equal those of the other person, half of the amount payable by way of working families' tax credit shall be treated as the income of that parent; and

(c) where during that period the normal weekly earnings of that parent are less than those of that other person, the amount payable by way of working families' tax credit shall not be treated as the income of that parent.

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Pay Up or Else

... has the Child Support Agency become too punitive?

Lying about income, assigning assets to a new partner and changing jobs to avoid deduction-from-earnings orders are common tactics for men seeking to escape child support obligations. The Child Support Agency has until recently lacked the firepower to counter such dodges. But the tables have turned and solicitors and MPs say that most of the complaints they now get about the agency come from non-resident fathers shocked at its punitive approach.

Almost 70,000 earnings deduction orders were taken out in 2008-09, at rates of up to 40% of pay; some 30 men have been imprisoned for non-payment and 500 given suspended sentences. In one case, a family received a record single arrears payment of £57,000 after the agency took a legal charge on the father's new property.

Full story Source The Guardian 10 May 2009

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CSA Quarterly Statistics

On 1 November 2008, the Child Maintenance and Enforcement Commission took over responsibility for the Child Support Agency functions and the first summary of quarterly figures since the takeover became available at the end of April 2009.

Main Findings

• At the end of March 2009, the CSA caseload stood at 1.28 million.

• The volume of uncleared current scheme applications has fallen by 57,700 since March 2008 and at 49,200 (including clerical cases) is at its lowest since May 2003. This represents a fall of 54% since March 2008. At the end of March 2009, there were 64,900 uncleared applications across both schemes (not including clerical performance), a fall of 52% over the previous twelve months.

• In the quarter ending March 2009, 71% of all cases in which maintenance was due had either received maintenance via the CSA collection service, or had a maintenance direct arrangement in place.

• In the three months to March 2009, maintenance had been collected or arranged by the Agency on behalf of 779,800 children.

• In the year to March 2009, the Agency collected or arranged £1,132M in child maintenance (regular and arrears), of which £158M was arrears.

• In the quarter ending March 2009, on average, where maintenance had been charged and then paid via the collection service, the Agency had collected 91% of the amount due.

• Of those current scheme applications where the Agency has made a calculation and set up a collection schedule on which payments were expected from the non-resident parent, 92% of cases have made at least one payment to the parent with care.

• At the end of the 2007/08 financial year (latest available), the total amount of outstanding money owed by non resident parents to parents with care stood at £3.8 billion, whilst this represented an increase of £120 million since 2006/07, the average monthly rate of increase has slowed from £16 million to £10 million.

• At the end of March 2009, the average current scheme maintenance calculation was £23 per week (including zero calculations), and that for old scheme assessments was £18.

• At the year ending March 2009, the Agency had answered 99% of telephone calls available to staff to answer. The average waiting time was 13 seconds. This is up from 98% answered with a waiting time of 20 seconds in the year ending March 2008.

• In March 2009, there were 9,200 staff employed by the CSA (measured on a full-time equivalent basis) this is down from 9,500 in March 2008.


Full summary Source Child Maintenace and Enforcement Commission 29 April 2009

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Justifying CSA Enforcement Measures

Yesterday Janet Paraskeva, chairman of the Child Maintenance and Enforcement Commission that assumed control of the CSA from the Department for Work and Pensions last November, put into context the tough measures going through the Lords to recover child maintenance. The Welfare Reform Bill, which received its second reading yesterday, would allow C-MEC to suspend the driving licences and passports of persistent non-payers.

By the time the Child Support Agency (CSA) seeks the withdrawal of a parent’s driving licence under existing powers, the ordinary tools of CSA enforcement — deduction from earnings orders, civil liability orders, the bailiffs — will already have been exhausted. Days in court will have come and gone. In one recent case it took six years and no fewer than seven court appearances to separate one particularly evasive debtor from his driving licence.

These powers will shift the heavy procedural burden away from the State — which will already have satisfied the courts about the nature and extent of the liability — and towards the defendant. He or she will have to engage more promptly with the system or find life much less convenient.

On more than 900 occasions in 2007-08 hearings where the CSA applied for the most serious sanctions presently at its disposal — imprisonment or driving disqualification — on 695 occasions the defendants did not even turn up. That represented a fifth of all such hearings that year and a significant cost to the taxpayer.

The agency must, in these circumstances, endure further delay and the expense of taking out an arrest warrant to bring the defendant forcibly before the court. What a waste of public money and unnecessary further delay to the parent caring for the child without his or her maintenance.

We want to more effectively target the people, relatively few in number, who lie, move house, change jobs or put assets in the name of new partners in order to keep one step ahead of the law and avoid paying for their children.

More than 55,000 non-resident parents in Britain owe £30,000 or more in maintenance debt.

Full story Source The Times 30 April 2009

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Lawyers Warn of CMEC Bullying Tactics

Non- compliance with child support has become widespread in Scotland claims The Scotsman and The Child Maintenance and Enforcement Commission (the organisation replacing the Child Support Agency) is threatening some blameless Scottish parents.

Family solicitor, John Fotheringham, described the CMEC powers draconian and said some people are so frightened by the prospect of jail they pay up even though they owe nothing.

"I have no sympathy for those who wilfully refuse to pay when they owe it. But they are not making proper checks to verify who owes what. This organisation is not competent to use the powers it has. The running of the agency is woefully inefficient."

Non resident parents were warned earlier this year that their driving licences would be confiscated for failing to keep up with child support payments.

A CSA spokesman said the agency has been determined to collect unpaid maintenance arrears and in 2008 there was a 68 per cent increase in recovery on the 2006.

Full Story Source The Scotsman 1 April 2009

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Money Box

Following an earlier programme answering questions about mediation, the Child Maintenance and Enforcement Commission, splitting assets, benefits and pensions BBC Radio 4's Money Box progamme took more calls earlier today on divorce and separation.

As well as John Fotheringham, consultant in family law at Fyfe Ireland, this time the panel included Jane Craig, family partner at Manches, and Kirsty Marshall, senior advice worker at Gingerbread.

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Bypassing Courts

Polly Toynbee's article about the Welfare Reform Bill in The Guardian on Tuesday seems to have caused rather a stir. There are 900+ comments and the numbers are still rising. I think the point has been missed that the CSA/CMEC already can confiscate driving licences and passports so all the new measures would mean the courts would be bypassed.

The expropriation of driving licences and passports is a much better way of enforcing child support than sending non payers to prisons which are already bursting at the seams. However, sanctions are only imposed after all other measures have failed and the time saved bypassing courts is very small compared to the overall time spent getting to that stage. Given the CSA/CMEC are not the most efficient organisation and make many errors it makes sense to me that the responsibility for ordering confiscation would be best left with the courts.

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Welfare Reform Bill

The CSA could apply to court for the expropriation of driving licences and since last year the new Child Maintenance and Enforcement Commission (CMEC) has the power to apply to court for the confiscation of passports when non resident parents refuse to pay child support for their children.

Today The Times reports the Welfare Reform Bill, due for its second reading in the House of Commons tomorrow, will enable CMEC to bypass the courts and order non compliant parents to hand over their driving licences and passports.

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Review 2008

The last three weeks I've been busy with the seasonal festivities, daughter visiting from Australia, son's birthday and I even managed to get away for a short break. I've only just got around to reflecting events of the past year.

January My very first blog ever setting out a wish list and there have been some moves in the right direction. C-MEC came into operation this year although it remains yet to be seen how effective the change over from the Child Support Agency will be. Relationships Scotland was formed from Relate Scotland and Family Mediation Scotland and with the support of the Scottish Collaborative Law Group pilots of parenting classes were initiated throughout Scotland.


February The first of three damning regional Ofsted inspection reports into the Children and Family Court Advisory and Support Service, the organisation that provides a social work service to children and families who are involved in family court proceedings in England & Wales.


March The Court of Session ordered three children to be returned to their mother in France. Subsequently the father was extradited to face charges of child abduction.

April The Glasgow Bar Association voted for industrial action in protest against the Scottish Government's plans to reform legal aid. Justice Secretary Kenny MacAskill was to announce an increase in the level of civil legal aid payments and a new scale of payments for complex family law cases a month later.

May The launch in Edinburgh of Scotland's first specialist legal service, Cl@n, for children and young people who need legal advice and representation.


June In SS v Childen's Reporter Sheriff Stoddart ruled that an interim contact order did not "vest" any parental rights and responsibilities in the father, but did relate to the exercise of such rights. the case sent back to the children's hearing to reconsider.


July Sheriff Nigel Murray Paton Morrison set out a list of factors to consider in cases when permission to remove a child from the jurisdiction permanently is sought.


August Thousands of drivers, including holidaymakers on their way to Heathrow, were left stranded after police were forced to shut part of the M25 when Fathers 4 Justice campaigner, Geoffrey Hibbert, dressed as Batman and climbed on to a gantry. In September Fathers 4 justice was disbanded and then relaunched??

September In Scotland's first 'palimony' case a mother was awarded £14,460 representing a half share of a tax bill and a half share of the estimated £26,000 to cover childcare.

RAB v MIB overturned decisions by sheriffs in Aberdeen and an English Court that the child residency case should be heard in English courts.

Nigel Don tabled a motion, Family Law Disputes, in the Scottish Parliament.

That the Parliament recognises that current arrangements for settling family law disputes could be improved and that current law still discriminates against parents who are not married; notes that parents can find it difficult or impossible to enforce contact orders where the other parent is unco-operative and that disputes where broken families live in more than one jurisdiction within the United Kingdom are unnecessarily difficult to resolve; further notes that these issues are particularly relevant due to recent cases in the north east; encourages current moves by Scotland's legal profession towards collaborative dispute resolution, and notes with interest the new system of less adversarial trials being developed in Australia.

October Launch of the Scottish Legal Complaints Commission.

November Scottish Justice Secretary Kenny MacAskill announced the upper disposable income threshold for civil legal aid is to increase from £10,306 to £25,000.

December New measures for the enforcement of child contact orders introduced in England& Wales.

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Footprint

About this time last year Mike Smith of Durham Legal Services was enthusiastically telling me about a new development, Footprint. It was designed in anticipation of the child support reforms to help parents make their own child maintenance arrangements without involving the the Child Support Agency. Footprint records details of contact arrangements and keeps a diary creating a record which maybe accessed by lawyers and used to resolve disputes. There is "an absolutely unique interface where messages about the children can be exchanged in a neutral way, cutting down on those angry email exchanges and telephone calls." There is charge of £75 that includes a written Private Maintenance Agreement plus 12 months' use of the Footprint online system.

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Child Maintenance and Enforcement Commission

As I mentioned in my earlier post there are changes in child support coming into force. From today parents with care can choose to leave the CSA and make their own arrangements for child maintenance with the other parent of their child(ren). Information on the choices for arranging child maintenance are available from Child Maintenance Options, a new service set up to support parents in setting up the most effective maintenance arrangement for them.

Summary of the changes from today

* If parents stay with the CSA any child maintenance collected on their behalf is paid directly to the parent with care.

* When the parent with care is on benefit, it is their responsibility to inform Job Centre Plus of the amount of maintenance received whether or not you stay with the CSA.

* Parents with care are able to keep up to £20 a week of any child maintenance paid before it affects the amount of benefit they may receive.

* The Child Maintenance Bonus is coming to an end. Parents with care must satisfy the qualifying criteria and have stopped claiming benefit by 26 November to be entitled to any bonus that may have built up. They then have a further four weeks to claim the bonus.

The Child Maintenance and Enforcement Commission take on legal responsibility for the CSA’s work on 1 November.

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Child Support Concerns

The charity One Parent Families/Gingerbread claim that the changes to child support which come into force today, may result in one in four single parents 'dropping out' because they will now have to choose whether to continue using the CSA, make their own arrangements for child maintenance or do without child maintenance. See The Herald article.

Last week Marilyn Stowe, former chair of the CSA Appeals Tribunal Panel, appeared in BBC 1’s The One Show, to discuss the imminent introduction of the Child Maintenance and Enforcement Commission (CMEC). Marilyn thinks CMEC is just window dressing and what parents really need is accountability and the organisation to be local, answerable and fair. The video is available here.

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The 12 Month Rule

Since March 2003 the courts normally have no jurisdiction to impose child maintenance except in certain circumstances such as one parent living abroad, maintenance for over 18s in education or training and when there are step children. Divorcing couples may enter into an agreement either in the form of a registered minute in Scotland or consent order in England & Wales. After one year either party may ask the Child Support Agency to carry out an assessment (the 12 month rule.) At this point the CSA should notify the courts and the minute of agreement or consent order should cease to have effect. However, the CSA staff frequently say they can not handle an application when the parent with care doesn't consent.

This is completely wrong. The problem originates from a staff handbook which was available on the CSA website but has now been removed. In an article in The Journal John Fotheringham, solicitor and former Chair of Child Support and Social Security Appeal Tribunals, recommends demanding to speak to someone more senior and better trained if a member of staff at CSA says the application can not proceed for this reason.

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Conspiracy

Thanks to The Odyssey who emailed me a link to David Aaronovitch's article in The Times about the spread of conspiracy theories on the internet. Sir Timothy John Berners-Lee, the British computer scientist who is credited with inventing the World Wide Web, was quoted as being worried by that through using the net “a cult which was 12 people who had some deep personal issues suddenly find a formula which is very believable - a sort of conspiracy theory of sorts and which you can imagine spreading to thousands of people and being deeply damaging”.

By shear coincidence I stumbled on such a conspiracy theory this morning. It is claimed those running the CSA are mostly graduates of Common Purpose (aka the New World Order!), and that Common Purpose has infiltrated business, government, health services, the police and the legal profession throughout the UK. Furthermore Common Purpose holds secret meetings, brainwashes it's members and receives millions of tax payers money. Allegedly some people have died and some are surving prison sentences for trying to expose this.

So what is this subversive organisation? Common Purpose is an accredited Government training provider delivering leadership development programmes and the organisation adheres to the international Chatham House Rule of confidentiality (secrecy?) to encourage openness and the sharing of information. Neurolinguist Programming (brainwashing?), used widely in business communication and management training, is adopted. Common Purpose is a non profit making organisation. The conspiracy theory would be laughable if it wasn't so damaging and the Common Purpose Trustees felt it necessary to issue a statement.

Updated 22/9/08; Common Purpose have informed me of this site they have produced to set the record straight.

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CM Options

The Child Maintenance and Enforcement Commission, the organisation that is replacing the Child Support Agency, has introduced a service to provide information and support for separated parents to help them make private arrangements for child suport. On the service's new website, Child Maintenance Options, there is a calculator, a budgeting tool, private agreement form and a benefits table as well as leaflets and guides.

Sadly the CSA staff and advisers guide have been removed and there are no replacements. I hope this is just a temporary  state of affairs because these documents were in fact very useful.

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Child Maintenance Bill

The Office of Public Information has published the Child Maintenance and Other Payments Act 2008 available here.

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Child Support & Credit Ratings

Thanks to a poster on the Ondivorce forum for providing this link to an item on the New Law Journal website regarding the report ‘Child Maintenance and Other Payments Bill: Disclosure of information to credit reference agencies — exploratory analysis’

This paper examines the feasibility of sharing child maintenance payments with Credit Reference Agencies to provide additional incentives to non resident parents to meet their legal obligation. Firstly child maintenance compliance and compliance with financial products (such as bank loans or credit cards) is examined before looking in more detail at customers credit history when they have and do not have arrears registered.

It sounds a good idea but can the organisation replacing the Child Support Agency, C-MEC, be more efficient and well enough administered to target the right people?

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Absent Fathers & Child Support

This story in the Guardian on Saturday tells how a father came to abandon his son for 10 years and how the son now has an 'incendiary' relationship with his mum. I really wish that parents with care who deny contact would realise that a very intense relationship between them and the child is not a healthy attachment and will almost inevitably backfire one way or another. Children ideally need two parents.

On Sunday the Observer highlighted the concerns over the Child Maintenance and Other Payments Bill which received its final reading in the Lords last week. This legislation is to replace the discredited Child Support Agency and will enable parents on benefits to come to voluntary arrangements rather than using the CSA or its replacement C-MEC. Charities including Resolution, the family lawyers group, warn this could result in parents getting inadequate advice, and single parents not receiving the level of financial support they need.

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