As well as our own Surviving Separation course (Surviving Separation Course- Putting the Children First), please find details of a new paid course (with reduced rates for parents on benefits) offered by our partner organisation, Shared Parenting Scotland, across the UK, called New Ways For Families www.newwaysforfamilies.uk.
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The Hague Convention of July 2019 is a series of rules between supporting countries to recognise and enforce foreign court judgements. Most countries follow these to the letter whilst others, whether due to poor infrastructure e.g. poor police and border security, slow and inefficient court processes, differing domestic rules, or lack of political will e.g. the previous Polish government, do not. For FNF members whose children have been abducted to Hague countries, it is a small blessing that their children may be returned to the UK by their host’s government.
The significance of the Hague 19 Convention is that our government has agreed to ratify it and implement it into domestic law (LINK). Although only 19 countries have signed up to date the number is growing with Uruguay being the latest.
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Response to consultation on changes to CMS
Despite widespread speculation that this review would bring some relief to the many parents for whom the stress caused by the pattern of inaccuracies, demands for random arrears, lack of affordability, administrative denial and punitive sanctions from the Child Maintenance Service, may be alleviated, our hopes have not been met. Despite the National Audit Office failing to regularise their financial statements in any year-end report since 2012, the CMS remains largely unchanged. The response in fact even denies any statistical link between suicides and inability to pay raised by some of those consulted and pursues a strategy of maximising payments and enforcement on the non-residential parent.
The new proposals remove the requirement for CMS to apply to the court for a liability order when seeking sanctions for nonpayment, such as bailiffs, forcing the sale of property, driving license or passport disqualification and ultimately, prison. The paying parent will get a 7-day notice period of the issue of the Liability Order. You can appeal against these administrative liability orders, now through the Family Court and you do not need permission of CMS to do so, but 7 days is little time to obtain legal advice or even review the financial implications of such an order. The rationale is to make the process faster, but in practice it will mean many paying parents will simply pay up to prevent further family court trauma and put themselves into further financial difficulty. Unfortunately, jurisdiction of your appeal against a liability order will not include consideration of the CMS calculation which will need to go through CMS as it does now.
If these proposals are enacted in any future legislation the implication for paying parents is onerous but still very unclear. Will the liability order be suspended if you inform CMS of your intention to appeal or will CMS go ahead and only change their order after a successful appeal? Will there be an express route for appeals or a wait 2 – 3 months even for a court date as currently? Why does the government not see the connection between the suicide statistics of paying parents and CMS?
The government have not committed to reviewing the 25% change to a paying parent’s income before a reassessment of maintenance payments will be made. This 25% limit has been in place for 18 years and takes no account of changing wages patterns, particularly the gig economy. A 25% change in wages, when they are already very low, can mean the difference between somewhere to live and destitution. Many FNF members report the difficulty they face paying for alternative accommodation and CMS.
We will continue to raise these concerns on the government’s child maintenance external policy group (on which we sit) as well as in meetings with the relevant minister and CMS officials.
Finally, for paying parents, who are by far the greatest proportion of our membership…don’t delay reading those CMS emails when the proposals become law!
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Although MIAMS (Mediation Information and Assessment Meeting), will not be compulsory in April, the planned changes to the procedure rules are a nod towards this. They also recognise the enormous pressure family courts are under. CAFCASS have reported the average length of private law proceedings was 61 weeks, which was 22 weeks longer respectively than reported for the same period in 2020. The proposed changes are an attempt to get more cases resolved out of court through NCDR (non-court Dispute Resolution) mediation in the first instance.
The changes we are expecting are for Judges to take more interest in the numerous tick boxes used for an exemption from MIAMs in the C100 form and require both parties to explain to the court, on a new form, what their position is. In other words, you will no longer be able to simply say NO to mediation. Judges will be able to adjourn hearings to obtain these forms. The court will no longer simply accept the mediator’s exemption form as proof of the inappropriateness of mediation but that both parties must explain on these forms why.
One exemption that has changed is the way that any past domestic abuse exemption remains valid for all future applications. This will no longer be the case and will assist parents making repeat applications for a change to their CMO allowing mediation first.
Exemptions based on lack of knowledge of the other parties contact details has been removed too. FNF found this is the most common excuse used to avoid mediation.
The new rules also take account of the fact that mediation can now take place online between parents some considerable distance from each other, even other countries, online, and safeguarding issues can be easily addressed by the use of different Zoom rooms for each party.
The government voucher scheme for mediation remains (£500). (LINK). How far these rule changes will be interpreted and implemented remains to be seen. For FNF mentors, at least initially, using the right form after April 29th will be an issue. It would not the first-time forms are returned many weeks later simply for the applicant to copy the data onto the latest form!
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There are several changes to look out for that may or may not improve the family courts in 2024 and beyond.
• Resolving family matters out of court – the government has responded to the consultation on earlier resolution of family law arrangements, which FNF inputted on as well as having a meetings with Ministry of Justice officials - Supporting earlier resolution of private family law arrangements (LINK). The government has stopped short of mandating that separating parents attend parenting programmes or mediation and there will therefore be no use of costs orders for failure to engage with either. There will though be new early legal advice pilots, planned to launch by summer 2024 in specific regions, to test if providing early free, government-funded legal advice can help parents reach agreement at an early stage without the need to resort to court. There will be improved information and signposting to set out the available options for separating parents, more encouragement to attend parenting programmes earlier in the process and continued support of the mediation voucher scheme. The pathfinder pilots, with the aim to make proceedings more investigative and less adversarial, will be extended to South-East Wales and Birmingham in April and June 2024 respectively with the intention to eventually roll them out to all courts in England and Wales.
Whilst we were arguing for a more radical overhaul, we do believe these are steps in the right direction and are supportive of all efforts to avoid separation ending up in court whenever possible.
• Presumption review – FNF is an integral member of the panel feeding into the government’s review of the Presumption under the Children Act 1989 that parental involvement will further the child’s welfare (unless there is evidence to suggest that involvement parent would put the child at risk of suffering harm). This has been subject to delays but is planned to report in November. The review has been instigated by the 2020 Harm Report, which had no involvement with, and considered no evidence from any groups representing dads.
• Financial Remedies on divorce. Reporting in November, the Law Commission is carrying out an analysis of the current laws on financial remedies on divorce, to determine whether there are problems with the current framework that require reform, and what the options for reform might look like. FNF was invited to and is participating in the scoping report which will be provided to the government. The full terms of reference can be found on the project’s web page, here.
• Proposed amendment to Victims and Prisoners Bill affecting parental responsibility – currently at committee stage, this will automatically remove parental responsibility for parents convicted of murder or voluntary manslaughter – there will be exemptions for victims of domestic abuse.
• Family Court Fees to rise -The government is consulting on increasing most court fees by 10%; this would mean a C100 will rise from £232 to £255. Users of His Majesty’s Courts and Tribunals Service (HMCTS), including the family court, currently contribute to the cost of the justice process by paying fees. Court fees generated £727 million of the total £2.3 billion cost to run HMCTS in 2022/23, with the remainder funded by the taxpayer. Please note the Help with Fees Remission scheme to assist those on low and middle incomes with paying for court and tribunal fees.
• General Election – Whilst we await the date of this (which must be before 28 January 2025), we will scrutinise the manifesto of each main Party as to whether they progress or push back the cause of shared parenting in this country.
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Whilst we’re on the subject, we also contributed to this excellent research carried out by Katherine Hill and Donald Hirsh of Loughborough University for the Joseph Rowntree Foundation, looking at the needs and costs of non-resident parents Minimum Income Standard for non-resident parents with some responsibilities for children | Joseph Rowntree Foundation (jrf.org.uk). The conclusions include:
“Based on providing a minimum acceptable standard of living, a single person needs to increase their budget by around a quarter to look after a school age child every other weekend and during holidays, and by around a sixth in the case of a pre-school child.”
and that:
“A key policy issue is that the social security system treats a non-resident parent with responsibilities for a child as a single person, which ignores the additional costs highlighted in this study. Potential consequences for non-resident parents on a low income are the risks that children who visit do not have their needs adequately met, or that they are prevented from visiting, with implications for the extent of shared responsibility in their upbringing.”
It provides recommendations for government to make additions to Universal Credit and other social security to alleviate these issues. We will be sharing the report in discussions with the CMS and with our network and we encourage you to reference it when writing to your MP about the financial struggles of being a non-resident parent.
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