CHILD MAINTENANCE CHANGES

Child Maintenance veterans will no doubt be rolling their eyes at this latest change which began its early stage of implementation in December 2012.

There will be more emphasis on "Family Based Arrangements" - which is absolutely fine if everything is amicable, but of course most people resort to the CSA precisely because that simply isn't possible.  It seems the Government thinks that absent parents would rather hand over the money they should rightfully pay to the resident parent of their children rather than any Government agency.  However the determined non-paying parent seems to be characterised by a willingness to pay anyone but the resident parent - whether that is a Government agency or an expensive lawyer.

Those who need to pursue an absent/non-resident parent (NRP) for maintenance if they are reluctant, sporadic or non-payers will probably have the same problems they always had.  However, the move to a Gross Income Calculation (GIC) may make a difference to some NRP's who deliberately hide their real income by providing a misleading net income figure.  The whole reason for the move to the GIC is that a record of gross income can be checked through HMRC returns.

The new 'Gross Income' scheme will work as follows:-

• For gross income between £200 and £800 per week 
  • 12% - for one qualifying child 
  • 16% - for two qualifying children 
  • 19% - for three or more children
• For gross income between £800 and £3,000 per week
  • 9% - for one qualifying child 
  • 12% - for two qualifying children 
  • 15% - for three or more children
• Flat rate for non-resident parents in receipt of benefits or earning less than £100 per week - £7
• Reduced rate for non-resident parent earning between £100 and £200 per week

Contributions to an occupational pension scheme will be excluded, but not if they are at a rate which is deliberately extortionate to avoid the payment of Child Maintenance.

As the percentages have also been changed, there is little difference to the actual amount of CM which will be payable, so the CM Calculator on the CM Options site still asks for net income, and points out that it is a guide only.

So, from 10 December 2012 if you are a new applicant with four or more children who have the same parents, you will be one of the first to "enjoy" the benefits of the new scheme.  You apply to the CSA (Child Support Agency), and if you are an "appropriate" case, you'll be referred on to the CMS (Child Maintenance Service).

The existing and new schemes will run alongside each other for about 3 years, during which time the CSA will be closing existing cases under the old scheme and gradually transferring them to the new.  Eventually, when all the software/IT issues are ironed out (if indeed that's possible) the scheme will cover all applicants, old and new.

At that point, it is anticipated that further changes will be introduced.  New applicants will be charged a fee for the service, and attend an interview to show what steps you have taken between you to try to agree a "Family Based Arrangement" and resolve any issues between you.

You can read about the campaign against charges for CSA assistance, and find out how to get involved here on the Gingerbread website

ARRANGEMENTS FOR CHILDREN

Always seek the advice of a specialist Family Lawyer – word of mouth recommendation is best, but if you’re at a loss for ideas try contacting Women’s Aid or Rights of Women to see if they can recommend anyone in your area.

 

This Gov.UK page provides a link for legal advice and to check your eligibility for Legal Aid.

If you cannot reach agreement between you, or through mediation, on residence and contact arrangements (either during a divorce or during discussions about revising contact arrangements), an application for a Residence and Contact Order may be made to the Family Court by either parent.  (In future this is likely to be renamed “Child Arrangements Order”).

It is important to note that each case is judged on its own circumstances. The Judge may direct Cafcass to investigate the issues and decide which are relevant for the court to decide. The Cafcass officer will investigate within the framework of the Children Act 1989, taking these factors into account:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
(b) physical, emotional and educational needs of the child;
(c) the likely effect on the child of any change in his circumstances;
(d) the age, sex, background of the child and any characteristics which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the parents are, and any other person in relation to whom the court considers the question to be relevant, of meeting the child’s needs;
(g) the range of powers available to the court under this Act in the proceedings in question.

This kind of consideration Cafcass will give to issues around contact can be seen from their own publication “Time forChildren”.

Amongst other helpful advice in “Time for Children”, pages 12 and 13 set out the following in relation to children and contact issues:

“Children under three may find staying contact more difficult than older children, so particular care and sensitivity is needed when making arrangements at this age

Your parenting plan must be for the benefit of your children and not about parental time-shares. If you do not focus on your children’s needs, they may feel like parcels being moved between addresses.

Your children’s wishes need taking into account. Older children have friends they want to keep and interests that are important to them. They will want parenting plans that allow for their social activities.

Children mature at different rates so do not expect your children to manage similar arrangements to others of the same age; some children are confident and independent, others are shy and clinging. 

Young children may need much reassurance to be away from the place they usually see as home without getting distressed. 

Younger children usually manage frequent, short periods of contact
best; older children may prefer longer, less frequent periods.

Be flexible and update your parent plan over time. As children grow older their needs and circumstances will change, so will yours.

If there is any violence, alcohol and drug misuse, or psychiatric illness in the family, the parenting plan will need to take account of this to ensure the safety of your children. In order to benefit from contact, children must be safe and need to feel safe. Occasionally the risk of harm to the child will be greater than the possible benefits of contact and it may be best for it not to happen at all or to take place where risks to the child and possibly a parent can be kept to the minimum.”

If there is any reason at all why you might be worried about your children in the care of a former partner, even if it is simply a lack of experience which concerns you, you might want to look into supervised contact at a Contact Centre - at least initially.  These can be helpful for imparting parenting skills as well as putting your mind at rest.  Health Visitors at your GP surgery are also a good source of advice.  If you baby is very young, share your concern with your Midwife.

Here are some examples of contact arrangements which cater for the age and needs of of the child. 

Baby: a couple of hours each Saturday morning,

Young toddler: a day each weekend: with very young children who have a short memory span frequent shorter contact is better than longer periods further apart.

Young children: alternate weekends with one night overnight and maybe an evening each week

Older children: alternate weekends with overnight contact, maybe from Friday night to Sunday night; there could be additionally one night overnight contact a week; some parents agree Thursday nights, which would then provide a continuous long weekend every other weekend.

11 and up: often have sport or other weekend activities and contact must be planned around those. The court will not force a teenager over 14 to have contact with the other parent and at least from the age of about 12 the court takes the child’s wishes strongly into account.

Holiday contact during school holidays can be shared, but would depend again on practical issues such as the parents’ working pattern and leave entitlement.

Arrangements for general and family holidays such as Christmas, other religious holidays (if they are important) and the birthdays of the child, the parents and siblings need to be agreed – it is better if you can do this well in advance.

Special family occasions such as weddings will require some flexibility.

Contact orders or arrangements should always take into account the situation immediately beforehand. If both parents were actively involved in caring that is a different situation to one where one parent has done all the caring and the other is unknown to the child (to give an extreme example). In the first example, overnight care might be possible from the beginning. A parent who has had little to do with day-to-day care, or the reintroduction of an unknown parent will take much more gradual and careful handling. It always depends entirely on the circumstances.

The above guidelines were established in the document “A Guide to Contact Arrangements for Children - THE ASSOCIATION OF FAMILY COURT WELFARE OFFICERS” (which predates Cafcass).  It is still relevant today, as we can see from this law firm’s website.

See also Maypole which is a brilliant organisation – a charity – which can provide useful advice leaflets for a small charge, and will respond to email enquiries.

SEPARATION AND DIVORCE - WHERE DO I START?

It's really important to get familiar with the language of family law and procedure, and an understanding of your rights, before you see a solicitor. If you are well prepared you will save time and money.

Firstly here is some helpful advice, and the dedicated Divorce/separation Talk topic on Mumsnet. 

Not all of the following will apply to everyone, but these are the main issues you need to be aware of and think about.  

CHILDREN 

The welfare, needs and interests of children are paramount. Parents have responsibilities, not rights, in this regard. Shared residence means both parties having an equal interest in the upbringing of the children. It does not mean equal (50/50) parenting time - children are not possessions to be “fairly” divided between separating parents. 

A divorce will not be granted where children are involved unless there are agreed arrangements for finance, and care of the children (“Statement of Arrangements for Children”). It is obviously quicker and cheaper if this can be agreed between you but if there is no agreement, the Court will make an Order - “Residence and Contact” regarding children, “Financial Order” or “Ancillary Relief” in the case of Finance. Residence and Contact Orders are likely to be renamed Child Arrangements Orders in future.

You can also read about issues relating to child contact and get advice from Gov.uk, Rights of Women, Maypole, and Cafcass publications.

Parenting advice also be found at Family Lives and The Parent Connection. The Gingerbread single parent freephone helpline is 0808 802 0925 Monday 10am- 6pm, Tuesday, Thursday, Friday - 10am to 4pm, Wednesday 10am-1pm and 5pm-7pm.

The Government has recently updated its information on all aspects of divorce, separation and child maintenance, here. Download the Sorting out Separation web app or go straight to Tools and Leaflets.

ALWAYS SEE A SPECIALIST FAMILY LAWYER!

Get word of mouth recommendations for family lawyers in your area if possible. If you have children at school or nursery, ask mums you are friendly with if they know of anyone who can make a recommendation in your area. These days there are few people who don’t know of anyone who has been through a divorce or separation – there’s a lot of knowledge and support out there!

Many family lawyers will offer the first half hour consultation free. Make use of this. Don’t just stick with the first lawyer you find – shop around and find someone you feel comfortable with. You may be in for a long haul, so it helps if you can find a solicitor you’re happy with.

If you can’t find any local recommendations, always see a solicitor who specialises in Family Law.

If you take legal action to protect yourself or your family from domestic violence, you may qualify for legal aid without having to meet the normal financial conditions. The income of an abusive partner will not be taken into account when deciding whether you qualify for legal aid. See below for further links in relation to DV.

Whether or not you case involves DV, you can find out about Legal Aid and get advice on the Community Legal Advice Helpline on 08345 345 4 345, and search in your area for Community Legal Advisors.

See also the Govt guide to divorce and access CAB advice.

Rights of Women have lots of helpful advice on their website, or you can telephone their Family Law helpline on 020 7251 6577 (Mondays between 11am-1pm, Tuesdays and Wednesdays between 2pm-4pm and 7pm-9pm, Thursdays between 7pm-9pm and Fridays between 12noon-2pm).

Co-operative Legal Services offer DIY/Self-Help Divorce packages, as well as a Managed Divorce service. Their fee structure is more transparent and they have a telephone advice line as well as offering really good advice on their website. Take a look at the recent Mumsnet Q&A with Christina Blacklaws, their Director of Family Law.

Resolution is an organisation of 5500 family lawyers in England and Wales who are committed to resolving divorce and separation disputes constructively. Through their website you can search for a Resolution Lawyer in your area. 

DivorceAid is another useful website with lots of advice and a search facility for specialist family lawyers.

Take a look at Wikivorce, a Government sponsored charity which has a very informative website. However, be always be wary of “DIY low cost divorce”, but few divorces are amicable and straightforward enough for this to work. Good legal advice may seem costly but it is usually a worthwhile investment.

I found these family law firm guides informative and easy to read – Terry and Woolley & Co. There are others of course.

Some family law solicitors publish online feedback from clients – Google solicitors by name to see if they publish recommendations or feedback.

MEDIATION

You will be encouraged to attend mediation. This can help by facilitating discussion about arrangements for children and finance in a structured way in a neutral setting. However, it only works if both parties are willing to reach agreement. If there has been violence or emotional abuse, mediation is unlikely to be appropriate or useful – so make sure your solicitor knows your concern. Often solicitors will be able to recommend a Family Mediator in your area who they have worked with in the past.

Always get legal advice, and make a note of what you want from the process, before you begin mediation. This is important because while a Mediator should have knowledge of family law, and will often explain family law, they are not there to give tailored legal advice to either party - so it’s important to have that first.

You can find a Family Mediator through National Family Mediation or the MoJ Family Mediation Helpline. 

FINANCE

Before your appointment with a family law solicitor, get hold of every single piece of financial information you have access to, and take copies or make notes. Wage slips, P60s, tax returns, employment contracts, pensions and other statements – savings, current account and mortgages, deeds, rental leases, utility bills, council tax bills, credit statements. Are there joint assets such as a home, pensions, savings, shares?

This is the useful Gov.uk Divorce and Separation calculator.
You can calculate Child maintenance using this calculator, and Tax Credits here.
MoneySavingExpert has a handy 5 minute benefits and tax calculator, so does the CAB.

MARRIED OR LIVING TOGETHER?

This is a key question. If you are married, generally speaking you have greater protection when a relationship breaks down.

You can find useful guides to the differences in legal issues here in the CAB Advice Guide and also at Advice Now. This page on the Child Maintenance Options website also refers.

IF YOU ARE MARRIED

When it isn’t possible to access financial information, or you are aware that assets are being hidden from you, then obviously you will not be able to reach agreement on finances and need to discuss this with a solicitor.

If there are children, as you cannot divorce without adequate arrangements being agreed on finance and children, you will have to apply for a financial order anyway. 
If there are no children, and you are unable to agree on finances, you will also have to apply for a financial order. 
During this process, parties have to declare financial information going back 12 months. So it is in your interests to act quickly once you have made the decision to divorce.

The main considerations of the Family Courts where parties are unable to agree a settlement are (in no particular order of priority):

1.The welfare of any minor children from the marriage.
2.The value of jointly and individually owned property and other assets and the financial needs, obligation and responsibilities of each party.
3.Any debts or liabilities of the parties.
4.Pension arrangements for each of the parties, including future pension values and any value to each of the parties of any benefit they may lose as a result of the divorce.
5.The earnings and earning potential of each of the parties.
6.Standard of living enjoyed during the marriage.
7.The age of the parties and duration of the marriage.
8.Any physical or mental disability of either of the parties.
9.Contributions that each party may have made to the marriage, either financially or by looking after the house and/or caring for the family.

IF YOU ARE LIVING TOGETHER

If you are living together (cohabiting) you don’t have the above protection when a relationship breaks down - however you may be able to secure housing for yourself and your children. If you are not married or in a civil partnership with each other and you have helped pay for the home, the other parent may not be able to sell it or prevent you living in it without a court order. But you must get legal advice and will need to give as much evidence as possible to support your case. 

If you have not helped pay for the home you may not be able to stay, even if you are the parent with the main day-to-day care of the child. 

If you are not married to each other and the home is in your name alone, you can apply to the court for an order to exclude the other parent. (You can’t do this if you are married to each other or civil partners, unless there has been domestic violence against you by the person who is to be excluded). Read this and talk to a housing adviser to find out your rights and discuss your options (telephone contact for Shelter in the linked leaflet and also below).

OTHER SUPPORT: DOMESTIC VIOLENCE, HOUSING

If you are in immediate danger of domestic violence always call 999. 

Otherwise, call The National Centre for Domestic Violence on their 24 hour helpline 0844 8044 999, or text NCDV to 60777 and they will call you. 

Women’s Aid and Refuge have a 24 hour freephone helpline, 0808 2000 247.

Shelter also has a freephone helpline 0808 800 4444 8am-8pm Monday-Friday, 8am-5pm Saturday and Sunday.

For Local Authority Housing advice, look at your LA website. If you have problems getting help with emergency housing from your local Council this can sometimes be resolved by taking the matter up with your local MP.

NB some of the above websites will have different advice and contacts for England, Scotland and Wales where the law or services may differ. If so they will provide the correct link for you on the website.

(V6 Dec 2012)