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Archive for the ‘Children’ Category

The Children & Families Bill – What Separating Parents Need To Know

H.M. King George VI and Queen Elizabeth in the...

There are a lot of Bills that do not become law but the Children & Families Bill is one that is very likely to be given Royal Assent soon, no doubt with a number of recommended amendments after it has been scrutinised by both the House of Commons and House of Lords. To have a better understanding of how Bills become law, please visit the Parliament Website.

The Bill sets out to make provision for vulnerable children and support for strong families. It will reform the current systems for Adoption, Family Justice, children with special educational needs (SEN) and looked after children.

Of particular importance to separating parents is the reforms proposed to the Family Justice System to help deliver better outcomes for families and children facing family break up or where children may have to be taken in to the care of the local authority.

The proposals are made as a direct result of the Family Justice Review to improve our Family Justice System. The key areas that will concern you if you are contemplating separation or you have already separated and you have dependant children are:

  1. The Bill proposes to replace the current ‘residence and contact orders’ with a new ‘child arrangements order’. This means that the Court will be asked to regulate arrangements for the child/ren and make decisions on whom the child should live, spend time or have other types of contact with if you cannot reach your own agreements either directly, via family mediation or other forms of dispute resolution. This should encourage both separating parents and the Court to focus on the content of any agreements/Orders, rather than the title/labels given to the arrangements.
  2. There will be a presumption of joint parental involvement (shared parenting) unless such involvement will put the child/ren at risk of suffering harm. It is hoped that this proposed amendment will reinforce the principle that both parents should play a key role in their child’s life/upbringing after separation subject to it being safe and consistent with the child’s welfare.
  3. Making it a mandatory requirement to attend a mediation information and assessment meeting (MIAM) with a regulated family mediator to find out about family mediation and other out of Court options to resolve disagreements about the child/ren’s arrangements before going to Court. Research studies have shown that family disputes resolved via mediation are less acrimonious than those that are settled through the Court system. Also, decisions made by agreement are more likely to be kept as opposed to Court imposed Orders.
  4. Introduction of a 26 week limit for cases to be concluded when an application has been made by a local authority to take a child/ren into its care. This to avoid the current unacceptable delays in such cases.

Please read the fact sheet provided on the Department of Education website for more information on the proposed changes. It is intended that this Bill will become law by April 2014.


Child Maintenance – More Changes!

The Government has introduced a new scheme for the calculation and enforcement  of child maintenance that will be managed by a new organisation, called the ‘Child maintenance Service’ (CMS). This service will in time replace the current or old system that we have all become familiar with, the Child Support Agency (CSA).

The scheme will be phased in over the next few years with the aim of converting all cases into a single system by 2015.

The calculation under the new scheme will based on the non-resident parent’s gross income as opposed to net income (as per the CSA scheme) to make the calculation simpler. There is in turn, changes to the percentages to be applied.

For a gross annual income of up to £41,600 (or £800 per week) the percentages applied will be:

  • 12% for one child;
  • 16% for two children; and
  • 19% for three or more children.

However, any excess of income over £41,600 per annum will be subject to the following extra rates:

  • 9% for one child;
  • 12% for two children; and
  • 15% for three or more children.

Gross income above £3,000 per week (£156,000 per annum) will be outside of the jurisdiction of the CMS and in these high income cases you will  need to seek Court intervention in the event that you cannot reach your own agreements.

If you are unable to agree terms of voluntary child maintenance then you may have to invoke the services of the CMS. The Government plans to introduce fees for using this service for calculating the assessment and requesting payment through the service/enforcement. For more information please click here.

The idea behind the new scheme is to encourage separating parents to agree their own arrangements outside of the statutory system by entering in to ‘Family Based Arrangements’ (FBA’s).  Most parents who are able to communicate and agree arrangements think this is a better option as it allows for flexibility, remains private and no one else gets involved. FBA’s are quicker and easier to set up, with no other costs. For for more information please click here.

Parents are encouraged to use family mediation services to reach agreement on all issues relating to the breakdown of their relationship/marriage and often mediators can help separating couples reach  agreements on child maintenance issues avoiding the bureaucracy of statutory systems, delays and costs.

Shared Parenting

There has been much debate about the Government’s plans to introduce a new clause to the Children Act 1989 to provide a presumption in statute for shared parenting. The explanatory notes to the proposed change in the law states that the amendment is intended to reinforce the importance of children having an ongoing relationship with both parents after their separation subject to

  1. it being safe and
  2. in the child’s best interests. 

Those groups supporting the change believe that it is long over due and that a change in the law will secure equal rights for both parents when the Court considers applications under the Children Act .

However there is grave concern from other groups that the change in law will lead to more litigation with separating parents becoming concerned about their own rights under the proposed  new terms as opposed to what arrangements will best serve their children’s needs.

Currently, the main focus is on the welfare of the child. The key concern with the proposed amendment is that separating couples will have competing claims under the Children Act about their right to shared parenting verses the welfare of the child, which should be paramount.

Having practiced as a family solicitor for over 20 years, my experience has been that the starting point for most professionals involved in family break down, including the Judiciary,  is to strive for arrangements that will allow the children to spend quality time with both parents and to allow for an ongoing, meaningful relationship with them. This has always been subject to the two proviso’s as set out above.

Usually the parents agree to this unwritten principle except they do not always agree on how to share the time with their child/children, which  has then lead to Court applications for Contact and Residence Orders under the Children Act .

It seems to me that by adding the wording proposed to the existing statute that is already implicit, is not going to reinforce equal parenting rights but will unwittingly lead to more conflict and confusion, thus more cases in Court as opposed to settling out of Court, which was supposed to be the Government’s main aim with the pre action protocol on family mediation issued in April 2011.

I hope that those of you  facing family breakdown do not get caught up in the drama of competing rights to shared parenting and that instead, you focus on agreeing arrangements for your children  with your ex partner that will best serve the children’s needs and in turn, will allow for ongoing communication between you and your ex partner and a better working  parenting relationship.

If you are unable to agree arrangements directly and you and your ex partner need help with communication, with the support of a family mediator, you may be pleasantly surprised at what you can achieve and agree on moving forwards. Why not give family mediation a go?  For more information visit the Family Mediation pages on my website.

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