If you are involved in court proceedings to divide assets following a divorce, dissolution of a civil partnership or separation of non-married parties, maintenance for children is most likely to be a factor where children are involved.
The parent who does not live with the child full time and who does not have day-to-day care of the child is known as the non-resident parent. They have a responsibility to pay child maintenance up until the child is a minimum of 16 years old or a maximum age of 20 years old if the child decides to stay enrolled in full time education.
Full time education is defined as being more than 12 hours per week and includes A-levels. Child maintenance is still payable during school breaks and if a child turns 16 years old and leaves school in the summer, child maintenance is usually still payable up until the first week of September of that year.
Non-resident parents do not have to pay child maintenance if the child decides to continue education to advanced study after A-levels, such as college or university. At that point, children are deemed able to work and pay for themselves.
Child maintenance can be agreed privately by the parties directly or through solicitors. Private agreements can be recorded on a private agreement form through the Child Maintenance Options.
This is a flexible option whereby both parties can agree on the amount payable and can change the maintenance rates by agreement if their circumstances change. In addition neither party will have to pay the Child Maintenance Service fees.
However, privately agreed maintenance agreements are not legally binding. If the non-resident parent decides to stop paying the child maintenance agreed, the resident parent cannot enforce the agreement.
If an agreement cannot be made between the parties, the resident parent can make an application to the Child Maintenance Service. There is an online calculator available to help calculate the amount that the non-resident parent will have to pay a month.
The resident parent can apply to the court to have the private agreement or application to the CMS turned into a consent order to make the agreement legally binding.
If the court makes the order and the non-resident parent fails to pay the maintenance agreed in the consent order, the court will have the power to enforce the order.
Under the Children Act 1989 the non-resident parent or resident parent can apply to the court for child maintenance to be paid by way of periodical maintenance payments, a lump sum or by a transfer of property into the sole names of one of the parents.
When deciding an application the court will consider all information in the case and in particular the welfare of the child and will look at the following factors:
Any financial provision that the court orders will last until the child reaches 18 unless they are still in full-time education or there are special reasons why the child maintenance should be continued, for example if the child has a disability.
Please be advised that before the parties apply to the court as above, the parties are expected to try and resolve their issues through negotiation and mediation.
At McMillan Williams, our mission is “To make quality legal services accessible to everyone” including those families struggling with Child Maintenance issues.
If you are going through a separation or wish to talk to one of our specialist family solicitors dealing in Child Maintenance issues please call us on 020 3551 8500 or email us at firstname.lastname@example.org
With primary school offers being sent out on 16 April, parents may be concerned about what to do if their child doesn’t get offered a place at their preferred school.
Louise Tunstall, an Associate Solicitor at McMillan Williams, explains what parents can do if they are disappointed with the place offered.
Parents have the right to appeal if their child is not offered a place at their chosen school. The offer letter should set out the right to appeal and will generally give parents 20 school days to submit any appeal.
Often a place if refused due to oversubscription of that particular school. Each school must have an oversubscription policy which sets out the criteria against which places will be allocated. Parents can request a copy of this from the school or relevant admission authority. Common oversubscription criteria will include, but not be limited to, a policy where priority is given to :
The relevant Admission Authority will set a hearing date to consider the appeal which must take place within 40 school days of the deadline for submitting the appeal, which will happen in 2 stages:
The panel will consider whether or not the school complied with the relevant admission policies and procedure and whether those policies comply with all the relevant legislation. The panel will then consider whether the admission of additional children would prejudice the provision of education or the efficient use of resources. This involves a thorough review of a number of factors including:
Where the school receives a number of appeals and individually, the school could accommodate one additional child but collectively it would cause a prejudice if all were admitted, the panel must proceed to stage 2.
The school will seek to balance the prejudice to the school against your case for admitting your child. This will involve consideration of why you feel that particular school is better suited than others. This could include evidence from independent parties such as doctors and youth workers.
Parents can attend the appeal hearing although decisions will be sent out in writing in any event. There are very limited rights to appeal the decision of the panel.
McMillan Williams can draft the appeal on your behalf, making all appropriate representations including locating the relevant school data regarding capacity and can guide you through the whole process through to the final hearing.
It takes courage for parents to turn to Local Authorities for help when things are going wrong.
A Local Authority may suggest “accommodating” children for a period of time. But what happens if parents don’t agree? And what happens if parents agree for a short time but then Children’s Services refuse to return their children? Who determines how long is long enough where there are no Court proceedings, no Judge and crucially no Guardian or representation for the child? What rights do parents and children have in these situations?
Section 20 Children Act 1989 places a duty on local authorities to provide accommodation for children in need. However, s20(8) is very clear that “a person who has parental responsibility for a child may at any time remove the child …”. The reality is that in practice, this fundamental right of parents is often ignored by local authorities.
Following judicial concern in recent cases where children have been accommodated for in excess of 2 years and where there have been questions over whether a parent has truly “consented”, the President of the Family Division, Sir James Munby, set out guidance in Re N  EWCA Civ 1112 [paras 157-171] - http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html.
The President highlights four problems:
Regarding the fourth point, the President is clear:
“This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence.
A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority.
I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right”
The message to local authorities is clear
“The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop”.
At MW, our mission is to make quality legal services accessible to everyone including families affected by Section 20 misuse and abuse. We have a team of specialist family solicitors waiting to help.
McMillan Williams are proud to announce that our Head of Family Law, Nicola Jones-King has been shortlisted for the Family Law, Partner of the Year Award 2015.
This prestigious award, sponsored by Goldsmith Chambers, recognises the effort and dedication that Nicola puts in on behalf of her clients and the MW Family Law Department.
Family Law has been making headlines this week with runaway mother Rebecca Minnock being accused of “Manipulating the press”. Ms. Minnock disappeared with her three year old son after a District Judge in the Family Courts concluded that the child should reside with his father under a “lived with” Child Arrangements Order.
The decision by the Supreme Court in the case of Wyatt v Vince has received a lot of press in recent days.
The case concerned a couple who at the time of their divorce some 20 years ago had no financial assets at all, they had been living what was described as “a hippy lifestyle” with no assets and no income. At the time of their divorce no application was made to the Court to dismiss their financial claims against one another, a relatively simple procedure, which protects the divorced spouse from claims cropping up in the future.
Although the couple had no assets at the time of the divorce the husband has subsequently built a highly successful green energy firm, now worth many millions, all of which was acquired after the divorce. However, because the financial claims were not dismissed the wife has now made an application to Court seeking a financial settlement. It is her case that she was left destitute whereas her ex-husband went on to develop and grow this highly successful business.
Nicola Jones-King, Partner and Deputy Head of our Family and Children Law Department gave evidence to the House of Commons Justice Committee as part of their enquiry into the effects of the Legal Aid and Sentencing of Offenders Act. This Act introduced significant changes to Legal Aid in family cases but was intended to ensure Legal Aid remained available for vulnerable people and children. Legal Aid was taken away from divorce, residence and contact (now Child Arrangement Orders) and financial order proceedings. Unless the individual had been the victim of domestic abuse or the child is said to be at risk of harm. These two exemptions are established by producing specific documents to the Legal Aid Agency and only certain documents will do. Legal Aid remains for mediation, for children who are parties to a case or applications brought by Social Services. The concept of exceptional funding was expanded all allowing individuals (or solicitors on their behalf) to seek Legal Aid, if without it they would be unable to access justice and their human rights would be infringed.
The Ministry of Justice have produced their own short video explaining the thinking behind some of the key changes brought in by the Children and Families Act 2014 involving some of the younger people who have experienced the previous system.?rel=0
MW are very proud of Vijaya Sumputh who has written an insightful article on same sex marriages in the Expert Guide Divorce Law 2014.
The article sits alongside articles written by well known and esteemed colleagues in the profession and finance practitioners. The piece is reflective of Vijaya's analytic and practical approach to rapid changes in our legislation. Vijaya in her article scrutinises the question of potential challenges to the new legislation and her informative piece takes you through the recent Marriage Act 2013 and high lights important provisions as well as potential shortcomings in the legislation. This succinct commentary is an informative guide to the Marriage Act 2013 and will be invaluable to those practitioners who do not have the time to wade through the legislation. Vijaya states that she is delighted to be involved in an interesting area of practice which is continually evolving to reflect the needs of our modern society.
Click here for PDF version
"MW welcome the ongoing changes to encourage, speed up and support adoption and more enduring family placements" - Neil Perot, MW Partner, Family Department
From September 2014, two-year-old children adopted from local authority care or who left care under a Special Guardianship (SG) Order or Child Arrangements (CA) Order (formally known as a Residence Order*), will be entitled to 570 hours a year of Government funded early education over no fewer than 38 weeks of the year (which equates to 15 hours per week). The Government is extending the entitlement to free early education to these children in recognition of the difficult start in life they have endured and the real benefit early exposure to high quality early education can have in improving their life chances. There is strong evidence to show that good quality early education at the age of two supports children’s development. If you are a parent of an eligible child and you would like to take up the offer of a free place, you should contact your local authority’s Family Information Service for information about eligibility and the process for securing a place. Information can also be found on the Government’s website GOV.UK at https://www.gov.uk/free-early-education
*From 22 April 2014, residence orders and contact orders are replaced by Child Arrangements Orders (s8 Children Act 1989). Child arrangements orders are orders making arrangements about the person with whom a child lives or has contact. Only Child Arrangement Orders relating to a child’s living arrangements immediately after they leave local authority care (looked after children) are relevant for the purpose of the 2 year old free entitlement.