Feeling in a generous mood, I thought I would again respond to some of the search queries that have recently found their way to Family Lore. Once again, my Disclaimer (see the sidebar) applies to what follows.

how do i get a court order to stop my wife from taking the net proceeds from sale of house

Presumably, the house has already been sold and is/was owned solely by your wife, in which case you can apply to the court for an injunction order restraining her from taking the money. If it has not been sold yet then you can register a matrimonial home rights notice at the Land Registry, which will have to be removed before the sale can be completed - you will only agree to its removal once you are satisfied that the net proceeds will not be distributed until their division has either been agreed, or determined by the court. If the house is or was owned jointly, then the conveyancer dealing with the sale should not distribute the net proceeds without the agreement of both parties, or a court order.

what is a draft consent order

And, by the same searcher:

is a draft consent order legal document

A consent order is simply an order, the provisions of which have been agreed by the parties. The term most commonly refers to financial/property orders in divorce proceedings. A draft order is usually prepared by one of the parties' solicitors, agreed with the other party's solicitor, and then sent to the court for approval. If the court approves the draft, then it will make an order in those terms. The question then arises: is an agreed draft consent order enforceable? The answer is that it probably is, unless it states that the agreement contained in the order will only be binding upon the parties in the event of the court making an order in its terms.

who killed shafilea ahmed

We don't yet know, but the police are investigating a number of possible leads, following a recent appeal on the BBC Crimewatch programme.

lawyer deliberately makes it worse for their client

Oh dear. Sounds like this could be a matter for the Legal Complaints Service.

csa liability order can't pay

A liability order enables the Child Support Agency to take action to enforce payment of child support. What happens next depends upon what type of enforcement action the Agency decides to take. For example, they could instruct a bailiff to take possession of the non-resident parent’s belongings and sell them to raise the money the non-resident parent owes, they could take enforcement action in a county court, or they could apply to a magistrates court for the non-resident parent to be committed to prison. Note that on a committal application the court must consider the non-resident parent's means, and whether there has been 'wilful refusal or culpable neglect' on their part.

what to do if you have been named as the person involved in adultery

If you have been named as a 'Co-Respondent' in divorce proceedings, then you will have been served with a copy of the divorce petition, together with a form of acknowledgement, which you should complete and return to the court, stating (amongst other things) whether or not you admit the alleged adultery. If you do, then the court could order you to pay all or part of the Petitioner's costs of the divorce. You should seek legal advice if you are not sure how to complete the form.

i want to change the arrangements for our children

The first thing you should do is to try to agree any change in arrangements with the other parent. If this is not possible, would they agree to discuss the matter with you and a mediator? If all reasonable efforts to agree fail, then you may make an application to a court for an appropriate order (which will depend upon the nature of the arrangements which you would like changed).

taking advantage family court

Huh? Who's taking advantage of who, and how?

remarriage legal advice child support

Remarriage by itself does not affect liability for child support, but if the non-resident parent's new spouse has dependent children, then the liability is reduced when the NRP and his/her spouse live together.

english family law wife equal

Yes - of course.

county court procedures decree absolute

The procedure on applying for the decree absolute depends upon whether you are the petitioner or the respondent. The petitioner may apply after six weeks have elapsed since the date of the pronouncement of the decree nisi, by completing a simple application form and paying the court fee, currently £40. The court will then send out the decree absolute. The respondent may apply three months from the date when the petitioner can first apply, but the procedure is considerably different, and may involve a court hearing. Note that if either party applies after 12 months have elapsed since the date of the decree nisi, then they will need to explain the reasons for the delay, whether there has been any resumption of cohabitation since the decree nisi, and whether the wife has given birth to any child since the decree nisi.

what to dress in law court

Well, I wouldn't recommend a black cocktail dress, fishnet stockings and high heels, as an American judge was found wearing recently (albeit not in court), even if you're a woman. I assume that the query comes from a non-lawyer (hopefully lawyers know what to wear), in which case there is no dress code, but I would recommend wearing something smart, such as a suit.

set aside consent order for material non disclosure

I suspect that this query may have come from a lawyer, so I'll be brief (look it up yourself!). Any order, made by consent or not, can be set aside for a material non-disclosure, but before you make the application ask yourself: would the court have made a substantially different order if the disclosure had been made?

grandparent's rights in divorce

Grandparents (presumably of the children of the divorcing couple) have no rights in connection with the actual divorce proceedings. If the query relates to contact with the grandchildren, see this post. Otherwise, the only other scenario in which grandparents may be involved is in any property settlement on the divorce, where they claim to have an interest in the property.

application for an order for disclosure of child's whereabouts

See this post.

application for ancillary relief for dismissal purposes only

These are required with applications for ancillary relief (i.e. financial/property) consent orders (see above) - the financial claims have to be made, so that the court can dismiss them. They are made by completing a Form A, and heading it with the words 'For Dismissal Purposes Only'.

complaints about mediators divorce

The mediation service should have its own complaints procedure. If you are not satisfied with the outcome, then you may make a complaint to the UK College of Family Mediators.

Lastly, a question that I can't answer:

why marry?

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I received a letter this morning from Resolution, requesting examples of cases in which the child support '12 month rule' has caused difficulties, either in respect of settling cases, or where there have been problems because of a subsequent approach to the Child Support Agency.

For those who are not au fait with the arcane mysteries of the child support system, the 12 month rule is part of the peculiar interface between the old court-based system of child maintenance and the child support system. Contrary to popular belief, the child support system did not do away with the court-based system, just took jurisdiction away from it, in most cases. One instance in which the court can still make a child maintenance order is where the maintenance is agreed as part of a divorce settlement. However, after 12 months have elapsed from the date of the order, either party may then apply to the CSA for a child support assessment, which may obviously be for a different amount to the order, and the assessment will replace the order. As Resolution state, this 12 month rule has caused considerable difficulties, either in settling cases, or "where after a carefully negotiated agreement, one year later, one parent then takes matters to the CSA and 'all hell breaks loose'".

The Child Maintenance and Other Payments Bill, reforming the child support system, has just entered into the House of Lords, who have requested anecdotal evidence from Resolution as to why they state that the 12 month rule does not work, hence the letter that Resolution has sent to members. I certainly don't like the rule, and have often feared for its consequences in my own cases, but I am presently struggling to think of an instance where it has actually caused a problem. Perhaps I have been lucky.

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I think it is highly significant that Professor Patrick Parkinson, the architect of the Australian child support system, "is so alarmed at Britain’s plans to overhaul the Child Support Agency that he has flown to London to voice his concern", as reported by The Times on the 19th January. According to the report his concerns include the following:

• That child maintenance in Britain will now be seen as voluntary, so that non-resident parents can decide whether or not they want to support their children.
• That the parent with care will end up acquiescing to the first offer made by the non-resident parent, on the grounds that at least they will get it.
• That £40 a week will soon be regarded as the only sensible amount of money non-resident parents should pay to parents with care on benefits, as anything more will go to the state.

These all seem to me valid points, and I certainly agree with this telling quote from Professor Parkinson: "Closing down one agency and starting up another to carry out similar functions is a desperate measure by any standards". Quite.

[Thanks to Family Law Week for pointing out this article.]

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So, under-fire Work and Pensions Secretary Peter Hain has found time between scandals to appoint the first Commissioner of the shiny new Child Maintenance and Enforcement Commission, which will replace the failed Child Support Agency. Will it be a new man/woman, with radical new ideas to make the system work? No, it is none other than Stephen Geraghty, who has been the Chief Executive of the Child Support Agency since 2005. Really makes you confident that the new system will be better than the old.

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Thankfully, I've not been tagged by the latest blawg meme-virus, unlike both authors at reductio ad absurdum and Nearly Legal. Nevertheless, on this first day of the New Year I would still like to set out some things that I hope will happen in the area of family law:

1. Reform of the divorce law, to bring in a proper no fault divorce system. My thoughts on this were set out in this post.

2. Reform of the system for resolving private law children disputes regarding residence and contact, with a starting-point of equality between the parents. Under such a system there would be a rebuttable presumption that children should share their time equally with both parents.

3. That the child support system will be reformed so that it is fair and it actually works. (I realise that this is pretty unlikely.)

4. That clear statutory guidance is provided to determine financial/property settlements on divorce, possibly including a formula. This would provide far more certainty, and therefore dramatically increase the number of cases that are settled without having to go to court.

5. That the new rules on cohabitee property rights (see this post) are fair, reasonable, clear and workable.

6. (Another forlorn hope.) That the legal aid system will be reformed so that everyone will have equal access to the law, and legal aid lawyers will all earn a decent living.

One can only hope...

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Thanks once more to Family Law Week, this time for pointing out this recent press release from Resolution. In it, Kim Fellowes, Chair of Resolution's Child Support Committee states that the Government’s plans to reform the Child Support Agency are an 'accident waiting to happen'. She says that "despite consulting widely on its proposals, the Government is refusing to take on board the concerns raised by many different agencies. As a result, the Government’s plans look set to continue the pattern of failure that has dogged the CSA. Worse, they look set to create a new system that will be even more unfair and ineffective than the present one". She then goes on to particularise failings with the proposed new system.

I couldn't agree more. There is nothing whatsoever in the proposals as they stand that gives me any reason for optimism - quite the contrary. Unless the Government listens, C-MEC will be no more than another re-branding exercise, in the forlorn hope that the new agency will not be tarred with the same brush as the CSA.

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I've touched previously upon the issue of child support and equal shared care arrangements, and the unfairness of one parent, usually the father, still being required to pay child support to the other parent even though the children spend half of their time with him. Now Carl Bridge has created an E-Petition addressing this issue:

We the undersigned petition the Prime Minister to remove the child support liability in the new 'child maintenance and other payments bill' for 'non-resident parents' where equal shared care arrangements exist.

I initially hesitated to sign the petition as I did not think that it was necessarily fair that the 'wealthier' parent should have no child support liability just because there is an equal shared care arrangement. The details in the petition do suggest that parents be forced to enter into a private arrangement, but this would require them to agree a child support figure, which obviously they may be unable to do. Perhaps there should be a formula that takes into account the incomes of both parents and the time the children spend with each parent? However, I realise that it would be too much to ask the government to include such a reform in the Child Maintenance and Other Payments Bill 2006-07, so for now I think we should settle with the terms of the petition, which I recommend readers to sign.

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Whilst checking out the new (and much improved) Families Need Fathers website I came across a news story that I don't think I've mentioned before: the suspension of the Child Support Agency's 'naming and shaming' policy. As I have stated previously, I felt that the policy was pointless (save for showing that the government was 'doing something'), and John Baker, the the Chair of FNF, went further: "For a body whose purpose is essentially to protect the child, it is hard to see how public humiliation of one of its parents could possibly be appropriate". Just a few weeks after the policy started, the CSA acknowledged its ineffectiveness and did a U-turn.

It seems that rather than humiliating parents who fail to pay child support, the policy has only succeeded in humiliating the government.

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As we all know, the child support system is rife with unfairness. Yesterday I received an email from a father aggrieved that "even if the courts have decided the parents have equal responsibilities, the CSA still define one parent as the 'parent with care' and take money from the other as a consequence". He concludes:

I presume that the 'parent with care' has responsibilities over and above those of the other parent, and is required to pay more towards the care of the child as a consequence. Can you tell me where I can find information about what the requirements are of a 'parent with care' and what action is taken if they fail to fulfil those responsibilities?

The answer is that the term 'parent with care' is simply one used by the child support system to define the 'payee', and has no bearing upon the responsibilities of that parent. Anyone with parental responsibility has a duty to maintain the child, but subject to this once child support is paid to them they are free to use that money as they see fit. The 'parent with care' is the parent with whom the child spends most nights, or if this is equal, the parent in receipt of Child Benefit (which is more likely to be the mother).

It has, of course, long been complained that the child support system actually works against the principles of child law, for example in the way it encourages the parent with care to restrict the number of nights per week that the child spends with the other parent, irrespective of what is best for the child, in order to maximise the child support that the absent parent should pay. In this instance, the system is discouraging shared residence arrangements (despite the courts nowadays being far more likely to consider that such arrangements are in the child's best interests), by financially penalising one of the parents, even though he/she is sharing all expenses for the child equally with the other parent.

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Following my last post, I received an email from a mother in Australia complaining that the child support system there isn't any better than here. She says her children's father died owing some seven thousand dollars to the Child Support Agency.

This set me wondering - if the system is also not working elsewhere, is the whole concept of non-court child support simply an experiment that failed? If it is, then it has had devastating consequences for many of the guinea pigs involved.

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The other day I received the following comment on this post:

I have an ex self employed partner who in 2000 decided being a father wasn't his cup of tea, and disappeared, called in the CSA from 2000- 2004 not a word or penny from the ex, then he sold his house and we got some off the arrears through a charging order, then suddenly he contacts them, I'm no longer working as a builder and Im not claiming any benefits so could you kindly reasses me , certaintly the CSA said, here have a nil assessment, (note the sarcasm) hold says I , this is a self employed builder who for 15 years fiddled his tax returns and is known for working cash in hand, sorry says the csa, nil assessment stands , enter tribunal, no response for information from NRP and i win, NRP asks for it to be set aside and it is, 1 yr later tribunal heard how he bought a £340,000.00 house for he and his partner and how he gave up work to work for himself on his "6 bedroom dream house" for 2 people why ? "because I can" ! he wins second appeal because on grounds of deprivation of income a self employed NRP cannot deprived themselves of an income, so he lives in a 6 bedroom house, claims not to have done any cash jobs in 4 years,even though tribunal agreed his tax returns were false and he had worked cash in hand, has a mercedes van, an alfa romeo car, and a boat in the drive.. and a nil assessment !!... yep I hold the CSA and the tribunal service in high regard !!

I haven't verified the facts, but if we have a system that can allow an able father who lives in a £340,000 house to pay nothing for his children, then we have a system that is broken. What's more, I can't see that the proposed reforms to the system (C-MEC), will help people like Debbi. The only chance that she would have for justice is a return to the old court-based system, perhaps only for those cases considered inappropriate for the child support system, or its successor. Only a court can properly examine the facts and, where it is clear that the absent parent has the means to pay, even if he/she claims to have no income, the court can infer that he/she has an income, put a figure to that income, and make a maintenance order. For example, the court can look at any income figure given in a mortgage application, or look at lifestyle compared to disclosed income, such as in a tax return - if it is clear that that lifestyle is of a far higher standard than the disclosed income would allow, then the court can adjudge that the true income is higher.

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Lynne Bastow of DivorceSolicitor has received abuse and even threats in response to this post, apparently from members of fathers' rights group Fathers 4 Justice. If so, and if F4J wants to be respected (and therefore listened to), then it needs to eradicate this sort of behaviour from its membership.

Jacqui Gilliatt of bloody relations has written an informative article for Family Law Week, on the law relating to relocating children to other countries, and within the UK.

Lastly, The Landlord Law Blog is not the place you'd expect to find advice about marriage, but Tessa Shepperson recommends the institution, and advises how to keep the costs of 'getting hooked' to a minimum (I did much the same when I got married). Just one thing Tessa: it's 'Register Office', not 'Registry Office'. Grr.

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Last week Resolution published a briefing setting out its concerns about the catchily-titled Child Maintenance and other Payments Bill (I've been trying to think of an acronym for the Bill - the best and most appropriate I've come up with (with apologies to our ape cousins) is 'CHIMP'). The briefing goes through the five key areas addressed within CHIMP (private agreements between parents, maintenance calculation, shared care and maintenance, enforcing payment and historic debt & compensation), outlines the Government’s proposed approach, and sets out Resolution’s concerns and recommendations for reform.

One of Resolution's key recommendations is that parents with care should be permitted to take their own enforcement action through the courts, should they so choose. At a stroke this would drastically reduce the workload of the CSA/C-MEC, would empower those parents by giving them control of the enforcement process, and would no doubt reduce the huge amount of unpaid child support. Of course, the government will have two objections, both based upon fiscal considerations rather than creating a better system: that it would overload the courts system, thereby requiring substantial investment in our overworked courts, and that it would lead to a substantial increase in the legal aid budget. However, as Resolution point out, in many cases the court is already examining the family's finances for the purposes of divorce - "the most cost effective and practical course would be to enable them also to cover arrangements for child support payments". Otherwise, if the parent with care does not require legal aid, why not let them finance enforcement proceedings themselves if they wish? Even if legal aid is required, it would surely only be granted if there was a good chance that the enforcement would be successful, and if it is, then the court would also order the paying parent to pay the costs of the proceedings, thereby reimbursing the legal aid fund.

Of course, a cynic may say that as a solicitor I'm just looking to acquire new business (or, to be more accurate, to re-acquire old business that was lost when the Child Support Act came into force), but surely it is more important that we have a system that works?

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According to a Fathers 4 Justice press release, 'Guantanamo Dad' Michael Cox was freed last night, after a successful appeal. Interestingly, he was represented at the appeal by solicitor advocate David Burrows, who I have mentioned here before.

Since he was jailed, Fathers 4 Justice has been running a campaign for Mr Cox's release, including a protest outside the prison, a 'Don't pay the CSA' campaign (including the suggestion that all correspondence with the Agency be in yellow ink, so that they can't photocopy it) and an action plan, which included this somewhat cryptic instruction:

4) Apparently purple prison doors, CAFCASS doors, solicitors doors and post boxes are all the vogue this summer.

I'm not sure what post boxes have done wrong, but there you go.

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Today the Public Accounts Committee publishes its report Child Support Agency: Implementation of the Child Support Reforms. It (unsurprisingly) makes damning reading, with Chairman Edward Leigh MP calling the reform of the Agency "one of the greatest public administration disasters of recent times". He goes on:

The facts speak for themselves. More than one in three non-resident parents fail to pay any of the money they owe, amounting to £3.5 billion in uncollected maintenance. Around 230,000 of the almost 250,000 cases where a parent isn’t complying have not been handed to the enforcement arm of the Agency. And 275,000 cases are stuck in the system and so going nowhere.

He calls the agency's IT system "a turkey from day one", which still had 500 defects three years after it was introduced. Most damningly of all he says:

It took thirteen years of failure for the department to reach the conclusion that the Agency was not fit for purpose. During this time, thousands of children suffered; as thousands of absent parents have neglected their duties.

It is hard to think of a body in which the public has less confidence: in 2005-06 alone, there were 55,000 complaints about the CSA.

Of the future, he somewhat worryingly says:

In 2008 the Child Maintenance and Enforcement Commission will replace the CSA. But it is by no means clear how this will benefit citizens or regain the confidence of those the Agency was intended to help. The government must keep an iron grip on this new organisation to ensure that the lessons have been learned from the CSA debacle.

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So, the Child Support Agency has published the first names it wishes to shame. The pages on their website show the names of some of those who have been successfully prosecuted each month for either failing to provide information, or for providing incorrect information to the Agency, with the latest appearing here (previous months can be found from the menu on the left, under 'Recent prosecutions').

It seems to me that these people will only be shamed if someone who actually knows them happens to visit the site, but what are the chances of that? OK, the recipients (or should I say non-recipients) of child support will no doubt tell their friends and family that their former partner has been named, but these people will already be aware of the story.

You may, therefore, think that naming and shaming is pointless. Wrong. Its true purpose is to give government ministers something else to say when asked the question: What are you doing about the child support problem?

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In yet another example of the absurdities caused by the complete inflexibility of the child support system, barrister Michael Cox was jailed yesterday for non-payment, despite his ex-wife pleading with the court not to jail him because she would then be forced to give up work and go onto benefits. Cox owes £43,000 to the CSA but is refusing to pay because his three sons spend half of their time with him and accordingly, he argues, he should not be treated as an absent parent.

Cox apparently gives legal advice to fathers' rights group Fathers 4 Justice, who believe he has been made a scapegoat because of his involvement with them. They state: "In effect he has become a political prisoner jailed by the CSA in a secret court for discharging all his responsibilities to his children - He has become a Guantanamo Dad".

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I've not seen the logo for the new Child Maintenance and Enforcement Commission (C-MEC) yet, so I thought I'd save the taxpayer £400,000 and design it myself. Can't think where I got the idea from...

I'm sure the public's response to the logo will be similar to its response to C-MEC.

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With reference to this post, it came as no surprise to me that Denise Rowley lost her case against the CSA in the Court of Appeal. She intends to appeal to the House of Lords, but I don't hold out much hope. It is appalling that parents and children can have no recompense for the severe hardship they have suffered as a result of the failure of a government body to do its job. For an example of this hardship and an eloquent criticism of the system I recommend reading Lisa's comment to my previous post.

[Edit: Lisa has since commented upon a number of other posts in the Child Support section of this blog, for example here and here. Her comments speak far more eloquently than any platitudinous government minister of the reality of the utter failure of the child support system.]

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I mentioned the publication of the Child Maintenance and Other Payments Bill in a post last week. I've now had a chance to look at it. There are a number of provisions that I will no doubt comment upon in due course, but for now I'll concentrate upon the proposed new basis for calculating maintenance liability. Instead of the old basis of the net income of the non-resident parent (NRP), it is proposed that in future gross income should be used - see section 16 and Schedule 4. The aim here seems to be to reduce the opportunities for that parent to 'play with the figures', and also to speed up assessment. This seems to me to be a very sensible proposal (I never thought I'd hear myself saying that), although whether it will result in unfairness to the paying parent remains to be seen, particularly where he or she has high pension contributions (which are currently taken into account when calculating net income).

Of course, using gross figures will mean that the percentages of income to be paid will have to be reduced. The 'basic rate' figures change from 15% to 12% for one qualifying child, from 20% to 16% for two and from 25% to 19% for three. The rates reduce still further (to 9%, 12% and 15%) if the NRP's gross weekly income exceeds £800, presumably to take into account higher rates of income tax. I've made some rough calculations and it seems to me that the new percentages will result in higher maintenance liability than under the present scheme, even assuming no pension contributions are paid by the NRP. If I'm right, then many NRP's are in for an anxious wait to see if the Bill makes it on to the statute book.

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