Month: February 2015

Children to have a greater say in family court cases and decisions about their future

The Government has announced that children will have a greater say in family court cases and that children involved in any type of family case, such as disputes about child arrangements following divorce or separation, will be able to have their views heard when decisions are made that will affect them.

Last year 90,000 children were involved in new cases in the family courts. The government believes that young people’s voices should be heard when decisions are made that will affect them. Under the new proposals there will be a range of new initiatives and in particular all young people aged 10 and above will have a greater opportunity to have their voice heard. The plans announced are expected to complement reforms to guidance on judges seeing children which are being considered by a judge-led working group set up by the President of the Family Division.

A range of methods are expected to be used to help make communication easier, such as letters or pictures and CAFCASS (Children and Family Court Advisory and Support Service) are beginning to develop various resources such as a ‘Court Gaming App’ to explain the court system to a young person.
However, family organisation Resolution says that this needs to be part of a wider move to put children’s needs first during divorce and separation. Resolution has developed a Parenting Charter which sets out what children should expect from their parents during and after their relationship breakdown and this will be formally launched on Monday 23rd February.

Married couples and civil partners can register online for a new tax allowance

Registration has now opened for a new marriage tax allowance. The allowance is available to those whose income is less than £10,600 in the 2015 to 2016 tax year and such individuals will be allowed to transfer up to £1,060 of their unused allowance to their partner in order to reduce their tax bill. However, the receiving partner must be a basic rate taxpayer, as of April 2015, that will mean they qualify if they earn between £10,601 and £42,385 a year.

Who can claim Marriage Allowance?

An individual will be able to claim Marriage allowance if all of the following apply:
– They are married or in a civil partnership
– They have an annual income of less than £10,600 – including pensions, savings and investments.
– Their spouse or civil partner has an annual income of between £10,601 and £42,385.
– Both persons were born on or after 6 April 1935.

How much will it save?

Up to £212 a year. From April 2015, anything you earn between £10,600 and £42,385 a year will be taxed at 20%. If you earn for example, £8,000 per year, you will effectively have £2,601 of your allowance that you are not using (as of April 2015). Of this you can transfer the full £1,060. This will increase your partner’s tax-free allowance to £11,660, and that 20% saving on the extra amount is equal to £212.
The Government has stated that the introduction of the allowance seeks to introduce the recognition of marriage into our tax system however, it has been widely criticised for not making it available to all married couples and partners and only benefitting households on low incomes. To register your interest in receiving the allowance or find out more about the scheme, click here:

Claims Could Rise For Failures In Child In Care

Claims against local councils could be set to rise if it is found that there has been a breach in any of the child’s human rights.

One case in particular is Mr Justice Keehan’s judgment in Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam) which resulted in the local authority being ordered to pay £12,000 in damages to the child, £4,000 to the mother and a further £1,000 to the grandparents to help them take care of the child.

Northamptonshire County Council had been found guilty of breaching the human rights of a new born child that had been taken into care. The council had made a catalogue of procedural errors which eventually led to the judgement against them.

This included obtaining an s20 consent without an interpreter (the new born baby’s family were Latvian) and not issuing care proceedings until nine months after the child had been accommodated. There were also delays in issuing several other documents linked to the case.

The case is significant because it will go down as the first reported domestic award for damages for achild in care proceedings.

Social care departments will need to be far more stringent on obeying human rights laws in future to prevent similar cases in the future.

How Old Does A Child Need To Be Left At Home Alone

A number of case in recent years of parents leaving children at home to go on holiday has brought the issue of how old a child needs to be to be left home alone to national attention.

It may seem like common sense to consider the children first before booking a holiday or going out for a night on the town, but there are still parents who feel that it is ok to leave young children athome for several hours or even days.

There is general confusion amongst arising from the law not being particularly clear cut when it comes to leaving children home alone. A lot depends on how mature the children are with the obvious consideration; are children able to look after themselves.

One case in Gloucester recently saw two mothers arrested for leaving their children aged six and seven at home on their own for 12 hours while they went partying. This left the children in a great deal of distress and ended with the arrest and a six-month suspended sentence for the two mothers.

So while the law on leaving children at home on their own can be fuzzy, if distress is caused and it is found that children have been neglected, then parents will end up with a criminal record or risk having their children taken into care.

DNA testing to be provided in all private family law proceedings

From September all family court judges will be able to order DNA tests to determine a child’s parentage.

This decision follows two pilot schemes in Taunton and Bristol which were set up to look into courtroom arguments leading to delays in divorce cases, particularly where parentage was in question. Findings from the pilots suggested that the tests mean judges could be more confident when making decisions about children and parents would be more likely to follow the court’s orders.

Justice Minister Simon Hughes has stated:

“I am determined that all cases involving children should be resolved quickly and wherever possible outside court.

However when they do come to court they should be resolved in a civilised way so that children don’t suffer. Unambiguous and conclusive DNA tests will prove parentage and help to end acrimonious and embarrassing court battles.”

The pilot schemes also explored whether alcohol and drug tests could be restricted without a means test to cases where their findings were determinative in family court cases. These results were inconclusive, so the Children and Family Court Advisory and Support Service (CAFCASS) will develop a new model for delivering drugs and alcohol testing over the next few months which will be affordable and provide the courts with certainty.

New figures released show Civil Partnerships in decline

The Office of National Statistics released figures today which show the number of civil partnerships formed in the UK in 2013 was 6,276 which was a decrease of 11% from the 7,037 recorded in 2012. This trend could be due to the fact that same sex marriage was made legal in the UK in 2014 and couples may have been deciding to wait for the change in marriage laws as they knew the right to marry was soon to be introduced. However, the ONS statistics also show that the number of civil partnership dissolutions granted in England and Wales in 2013 was an increase of 20% since 2012.

The Civil Partnership Act 2004 came into force in December 2005 which allowed same-sex couples to formalise their relationship under the law and since 2014, same-sex couples have been able to choose whether to enter into a civil partnership or get married.

Same-sex couples who were in civil partnerships which have broken down can separate formally in a way which mirrors the divorce process which is called dissolution. The only ground for dissolution of a civil partnership is that the partnership has irretrievably broken down. This is proved by establishing the existence of one of four facts:

  • Your partner has behaved in such a way that it would be unreasonable to expect you to continue to live with them.
  • Your partner has deserted you for a continuous period of two years or more.
  • You have been living apart for two years or more and your partner agrees to the dissolution of the civil partnership.
  • You have been living apart from your partner for five years or more.

Same-sex couples in civil partnerships have the same rights as couples in heterosexual relationships with regards to applying for financial arrangements on separation such as pension sharing, property transfer and maintenance.

For advice and guidance on civil partnerships and financial arrangements, please contact our specialist Family Law lawyers on 0161 927 3118 for a free 20 minute consultation.

Arguing over the reason for the marriage breakdown is unnecessary, hurtful and will result in time consuming litigation.

In the recent case of Lindner v Rawlins, there was a considerable amount of litigation between the parties including divorce proceedings in which each petitioned against the other on the basis of unreasonable behaviour. In this case, Mr Lindner sought to reply on the alleged ‘unreasonable behaviour’ of his wife however she denied his accusations and this caused a great deal of ongoing conflict, litigation and costs since their separation in 2012.

Before concluding the judgment in Lindner v Rawlins, Lady Justice Black attempted to point the parties in the right direction by stating:

“More than two years have now elapsed since they separated. They could now be divorced by consent without the need to engage in hurtful, time consuming and distracting litigation over how they behaved during the marriage. I encourage them to take this course in their own interest and those of their children.”

The important ground for divorce as far as the courts are concerned is that the marriage has broken down irretrievably; this is proved by establishing the existence of one of five facts. One of these facts is that your partner has behaved in such a way that it would be unreasonable to expect you to continue to leave with them. Although it matters to the parties, the reasons for the breakdown are usually of limited importance. Trying to prove that the breakdown of the marriage was due to the fault of the other party will not change the fact that the marriage has broken down. It is also extremely unlikely to affect the outcome of related proceedings such as financial applications or arrangements for the children.

Lord Justice Aikens commented on the fact that neither Mr Lindner nor Mrs Rawlins were legally represented and that this case was an example of how costs can be unnecessarily incurred and that cases such as this run the risk that ‘a correct result will not be reached because the court does not have the legal assistance of counsel that it should have’.

Dealing with marriage and relationship breakdown is incredibly difficult, and emotions run high, many people seek to gain ‘revenge’ however arguing over the reason for the breakdown will simply increase costs an unnecessarily delay the process.

Our experienced legal team can advise you of your options following the breakdown of your marriage and are here help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Schedule 1 to The Children Act 1989 applications – not just for the wealthy!

Schedule 1 to the Children Act 1989 (Schedule 1) was intended to make financial provision for the children of unmarried parents when they separated. Under this schedule the Court can make financial orders for child maintenance, a capital lump sum or a transfer or settlement of property for the purpose of providing for the children. The Court can also make orders for maintenance and lump sum for children over the age of 18 in full time education or where special circumstances, such as disability, exist.

In making a decision in relation to an application for provision under Schedule 1, the Court has regard to ‘all the circumstances of the case’ including the following factors:

  • The parents’ earning capacity, property and other financial resources
  • The parents’ needs, obligations and responsibilities
  • The financial needs of the child
  • The income, earning capacity, property and other financial resources of the child
  • Any physical or mental disability of the child
  • The manner in which the child is being, or is expected to be educated

Traditionally, many of the applications heard under this Schedule are ‘big money cases’ however, there are now examples where the Court has considered applications where the parent does not have enough assets to meet both their own needs and those of the child. In such cases, there have been examples of the Court prioritising the needs of the child over the parent. Therefore, it seems that Schedule 1 applications are no longer just for the wealthy, and that lump sums and settlements of property can be made where assets are limited and do not exceed needs. Recent cases show that the court will take into account the parents’ resources and standard of living in determining the size of the award and that in cases of limited finances, orders can still be made however, the size of the award will reflect the limited resources that are available.

Recent data produced by the Office for National Statistics shows that the fastest growing family type in the UK is cohabiting couples both with and without dependant children. Considering recent social trends and recent cases, it seems that Schedule 1 has a far wider reach than first anticipated. It is envisaged that many unmarried parents will be able make an application under Schedule 1 to meet the needs of their children, not just the rich and famous.

Our specialist team can advise on applications about financial provision for your children. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. Please contact us on 0161 927 3118 for a free 20 minute consultation.

DWP report states non-resident parents paying child maintenance hits an ‘all time high’ – does this reflect reality?

According to a recent Department for Work and Pensions report (DWP), the number of non-resident parents who are paying towards the cost of their children through the Child Support Agency (CSA) has reached an all-time high of 86.5%. The report also states that in the past twelve months, the CSA has helped collect and arrange more than £1.2 billion of payments due to tougher enforcement action against parents who have refused to pay. The DWP report highlights other enforcement methods which are now being pursued, including the use of bailiffs and in March 2015, the DWP will have the power to disclose non-payment or refusal to pay maintenance to credit reference agencies.

Although this report shows that more parents are meeting their obligations to support their children, a BBC News report pointed out that government accounts show that £2.9billion of the £3.9 billion in maintenance arrears are ‘uncollectable’. However, the DWP has responded to this stating that it is not ignoring old debts; however where a child is still being brought up or still at school they will be the first priority.

How to enforce child maintenance arrears

The Child Maintenance Service or the CSA (depending on which service you use) will take action if child maintenance is not paid. You will need to contact the CMS or the CSA to take action. Then the CSA or the CMS will contact the ‘paying’ parent to find out why they haven’t paid, arrange for them to pay what they owe and warn them about action that might be taken if they don’t pay. The ‘paying’ parent will then have a week to respond. If no response is received, the CMS or the CSA can then take action to get the child maintenance owed.

Unpaid child maintenance can be collected in 3 different ways:

  • From a paying parent’s earnings or benefits
  • From a bank or building society account
  • Court action

When a parent stops paying child maintenance or refuses to pay this can cause severe financial difficulties and unnecessary hardship towards the children. Based on the DWP report it seems that it is now easier to enforce arrears of maintenance however, it remains to be seen how effective these methods will be and whether ‘old debts’ will ever be recovered.

How we can help

The Child Maintenance Service introduced fees and charges for using the service in June 2014. Parents making a new application to the CMS will have to pay a £20 application fee. If no agreement can be reached about paying, the CMS will collect the money on your behalf but there will be further charges. It is possible to avoid all potential fees and charges by agreeing child maintenance without the involvement of the CMS.

We want to help you make the most suitable child maintenance arrangement. Amongst other services, we are able to draw up an agreement reflecting what has been agreed in relation to payment of child maintenance. We can discuss your options and work with you to decide what it the best way to proceed. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. Contact us now on 0161 927 3118 for a free 20 minute consultation.

Increase in female breadwinners in the UK and financial settlements

Over the past few years studies have shown more women than ever are the main breadwinners in their families. According to a study undertaken by the Institute for Public Policy Research two million working mothers are the biggest earners in their families and this is a rise of 80% in the last 15 years. With divorce rates increasing many breadwinners are concerned about where they stand when it comes to a financial settlement.

In a recent case, the husband of a successful accountant was awarded spousal maintenance of approximately £50,000 per year along with a lump sum of £300,000 as reported by the London Evening Standard. However, the husband is now seeking to appeal this decision as he was told that the lump sum was to be partly funded by the sale of the former matrimonial home and that his maintenance would be discounted by his earning capacity, which the Judge believed would be £36,000 a year and his maintenance was reduced by that amount. The husband has been granted permission to appeal this ruling and he is seeking to stay in the former matrimonial home and for maintenance payments to be increased to more than £85,000 a year.

The landmark decision of House of Lords in White v White held that financial settlements in big money cases should recognise the role of the partner who has stayed at home and been the primary carer and the contribution that they make to the wellbeing of the family. The Lords said that the objective is to ensure that a financial settlement is fair and that the starting point in such cases should be the principle of equality.

The objective of the court is to enable each spouse to have eventual financial independence. If you are going through a separation you will need to reach an agreement about your finances. Our experienced legal team can advise you of your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.