Monthly Archives: May 2014

Lots of new enforcement rules for the new Child Maintenance Service, so why did they drop the word “Enforcement” from its name?

The Child Support Agency (CSA) will close and is being replaced by the Child Maintenance Service – but they’ve dropped the words “and Enforcement” from its title – because that’s what it will do. So we can’t say what it’s to do on the tin, it might upset people! There will be changes to the child support calculation. The old basic formula (15% of the paying parent’s net income for one child, 20% for two and 25% for three or more children) is being replaced by rather less memorable percentages of the gross income.

 

  1. There will be a £20 application fee and collection charges. There will be additional charges if the child maintenance service has to collect money from the paying parent and that will be 20% on top of the child maintenance amount and the receiving parent will have their maintenance reduced by 4%, so those are quite significant payments, particularly for the paying parent.  However, if you make the arrangements for payment direct between you these charges do not apply, so it’s very much in everyone’s interest to avoid using the CMS if they can.

 

  1. Transfer of CSA cases to CMS. Over the next few years everyone using the CSA will have their cases closed, so once the new service is working well, parents will be given six months notice their CSA cases are closing and you then have the option of applying to the CMS if you need to BUT you can always contact out and a agree yourselves direct.

 

  1. CSA Arrears. If you’ve got to arrears of maintenance of the CSA those stand and they can still be enforced, so they’re not going to disappear, but you may have the same problems you’ve got now – though the CMS and can help setting up and collecting maintenance and its new powers are likely to make it very effective at this.

 

  1. HMRC to tell CMS paying parent’s income  Perhaps the most effective change is that the CMS will use information from Her Majesty’s Revenue and Customs (HMRC) to access information about the income of the  paying parent’s income and this will be checked with HMRC each year to make sure the calculation is still correct. This is a really practical development, as previously some people who might not want to defraud the HMRC,  might still play games with the CSA, now they can’t.

 

  1. Family-Based Arrangements – DIY  Before you can apply to the CMS you will speak to the Child Maintenance Options Service to talk about whether you can make a Family-Based Arrangements instead. Although they will try and encourage you to make your own arrangements where possible (as this will save the CMS money) you can apply to the CMS.

 

  1. Process If you apply the CMS will contact HMRC and find out the paying parent’s income, then using information given to them by the parent with whom the children live – the CMS will just assess the paying parent and tell them what to pay.  This information includes how many children are in each household and how many overnight stays the children have with the paying parent.  HMRC will use people’s National Insurance numbers to try and find them if they have disappeared, so it should be harder to escape paying.

 

  1. Once the maintenance is calculated there are two payment options:
  • Direct pay, where the calculation is done but  you sort it out between yourselves
  • Collect and Pay, where the CMS will collect the money from the paying parent and can enforce arrears, but charge you.

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The CMS calculates child maintenance using the paying parent’s gross income before deductions, to work out the payment – previously pension contributions tax and national insurance could be deducted. Other income such as interest on savings, income from a company, or on rental property is ignored in the initial calculations. Assets such as savings and property are also ignored. If the paying parent has other income or savings you can ask the standard child maintenance calculation to be varied so that these are taken into account. An important note – income of the paying parent’s partner is not included in the calculation, never has been, no change. Details of special rules are beyond the remit of this article.

 

The rates; there are different rates of child maintenance depending on the paying parent’s income.

 

There are nil, flat and reduced rates for none or low income parents, but for most parents paying maintenance the situation is set out below:

 

  • The basic rate of child maintenance: the paying parent pays the basic rate if none of the other rates apply. It’s a percentage of the paying parent’s gross income calculated in two stages:
  • Stage one –  the paying parent’s gross income is reduced depending on the number of children living with them, if any, this includes the children of the new partner living with them.

So –  Stage one example:

If there’s one child living with the paying parent the percentage gross income is reduced by 11%  two children  it’s 14% reduction and three or more it’s a 16% reduction.

  • Stage two

Maintenance is a percentage of the amount left from the gross income after any deductions are made in stage one. The percentage depends on the number of children that need to be paid for. The amount is rounded to the nearest pound.

 

Number of children applied for Percentage of gross income up to £800 Percentage of gross income over £800
One 12% 9%
Two 16% 12%
Three or more children 19% 15%

 

If you share care of your child – and this does mean overnight stays – then the child maintenance award can be reduced by a seventh if on average of the child or children spends 52 -103 nights of the year with the paying parent, and so on and so forth.

If the paying parent has other children they don’t live with from another relationship, then that will reduce the amount of maintenance paid to both families.

 

Useful sources of information:

www.gov.uk/child-maintenance                 There is an online calculator

 

Remember if you are or have been married there may be spousal maintenance due in addition, so worrying overmuch about the CMS may be pointless.

 

Enforcement:

 

The CMS has a range of potentially draconian powers to enforce payment – they can:

  • Take money directly from your earnings.
  • Take money directly from your bank, building society and post office accounts
  • Use enforcement powers through the courts to get  child maintenance paid and
  • Get orders you pay these court costs as well
  • This can affect your credit rating and make it difficult to get loans or mortgages
  • The CMS can apply to court for a Liability Order and then
  • Send bailiffs to go to your home and seize belongings
  • Put a charge against your property or other assets so you can’t sell or re-mortgage
  • Force the sale of your property or assets
  • Take away your driving licence and
  • Send you to prison.

 

If people try to avoid paying child maintenance by giving the wrong information or none, or don’t tell CMS their circumstances have changed or have disposed of assets so they can’t enforce maintenance – there is a long list of rules getting tough evasion and collection action. There may be some rather sad cases, especially if they get it wrong.

 

What are the changes intended to achieve?

 

The gargantuan cost of the CSA has been out of all proportion to the value of maintenance it collected. It has struggled to get it right and to collect money from determined non payers. The changes are intended to bring about a huge change as follows:

  1. Reduce the costs to the tax payer of collecting child maintenance
  2. Increase accuracy of assessment by using HMRC information about income
  3. Collect more child maintenance with better enforcement powers
  4. Make people see they will have to pay so
  5. They calculate the payments themselves and pay without using the CMS, so see 1 above!

 

Will it work? Probably in most cases . . . . but we shall see what effect the Law of Unintended Consequences has this time. . . ..

The Importance of rodents in my decision to become a mediator

I qualified as a solicitor in 1979 and most of my professional life was spent working as a family lawyer.  In the late 1990s I was handling the usual caseload of mainly financial cases and some children work.  A male client came to my office distraught one Monday morning. His two children had come to him for the weekend as usual and were refusing to go home to their mother with whom they lived.  The problem was caused by the mother’s new husband. He had bought the children’s father out of his share of the house and was beginning to assert his own house rules. I advised that the client the children had to go back immediately to their mother, he could not unilaterally change the children’s residence without the court’s approval or their mother agreeing. The mother most definitely did not agree and urgent faxes arrived threatening immediate court proceedings for restoration of residence, which were subsequently issued and faxed to us as well.
The father became more and more agitated. The children, who were not little, were in the car outside.  They wanted to be heard, but no one could listen to them. They were refusing to go to their mother’s home. They were going to run away and keep running away until they were allowed to stay with their father.  Could they see the judge – no they couldn’t – I knew the judge would not want to see them so they could not tell the judge they were not going to go home.
Whatever could’ve happened to make these children refuse so adamantly to return home to their mother when they had lived with her for so many years, apparently quite happily? The catalyst for their departure was their step-father.  The advent of the stepparents can often completely destabilise an otherwise harmonious home.  Territory can become an issue, we are all, after all, little furry mammals and we do like our nests to feel the way we want them.  There is a big difference between the adult view of the world and the view of children.  These children wanted their hamsters to remain in their bedrooms. They were their hamsters and their bedrooms. Their stepfather was insistent that the hamsters should live in the garage. I suspect this may have been the tip of quite a big iceberg, but it was the presenting factor we solemnly discussed at the door of the court, after the mother had issued her emergency application that Monday morning. I can’t remember the detail, it was a long time ago, but I think that the mother spoke at length with the children. She came to realise that there was no way they were going to go back to live with her. They would come and see her – they wanted a reversal of the arrangement they had had with her and their father for so many years. They wish to live with their father and have regular and generous contact with their mother.

The mother fought through the day. To say she was distraught was an understatement. In the end she had to accept that the children would stay with their father – the case and could not end any other way, as they had told their mother (from the car) and indirectly everyone at court, even the judge, that if they were made to return to their mother’s home, they would keep running away to get back to their father’s until they were allowed to stay there.

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There then remained the issue of the hamsters, at that time living in the mother’s and stepfather’s garage. It took a long time to negotiate the release of the hamsters, who were clearly hostages inextricably linked in the mother’s mind with having her children and she did not want them to go. I spent some time negotiating the release of the hamsters.   I returned to the office convinced that I had participated in a procedure which was insanely unsuitable and unfit for the purpose it was being used for.  I did not regard this as a sensible way of solving this family problem, nor was it a sensible use of expensive court time and legal expertise. Indeed no legal expertise was required, it was completely irrelevant.

I then discovered Mediation – how much kinder and how much more humane would a meeting have been to discuss all these issues outside court? There might have been a direct consultation with the children, to ascertain their wishes and feelings so that could inform parental decision-making. There was simply no question in my mind, mediation was the future for so many cases that were currently, at that time, being resolved judicially. That was many years ago now and I’m pleased to say that case would today probably be mediated. Things have improved a great deal, but we still have a way to go.

Defusing Arguments

Why argue? The instinct is to try and persuade the other person you are right and they are wrong. In return they are likely to try and persuade you they are right, so the debate begins. Sometimes issues are clarified and a shared understanding emerges, that is a good outcome, but often the opposite happens.  Commonly the dispute is more about the relationship and not wanting to back down, than reaching a shared understanding. Sometimes the original issues are forgotten or changed as the conflict mounts, especially if the debate becomes personal (“that is so typical of you, you don’t give a stuff about anyone . . .’)

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Once the dispute gets personal, the scene is set for the conflict to escalate and damage  or even destroy the relationship. Sometimes the reason for the conflict IS the relationship, which may involve toxic dynamics that cause endless conflict. The problem is the conflict, not the apparent issue, you know this for sure if there are constant or repeated arguments about anything and everything.

So the argument is the outlet for the conflict, which has a life of its own. One person may try to stop the argument, but the other may block this, arguing relentlessly, expanding the area of disagreement, dragging up old grudges and inventing new ones. Mediators know about conflict, they start where the conflict is, not with the presenting disagreement, as that is often incidental.

How can you defuse arguments?

Well, first of all start where the other person is. Listen to them, understand what they are saying, show that you understand by summarising to them what they told you. Then ask them a question about it, make them think, perhaps they might not be exactly right? Always focus on the issues and speak calmly and precisely, preferably don’t sound as though you are laying down the law. Better to be questioning as people always believe things they work out for themselves. Carefully avoid personal attacks and adopt logical explanatory reasoning, never blowing things out of proportion or attacking the other person.  Suggest adjourning the discussion to another time, when everyone has calmed down. Say you want to ‘think’ thus introducing the idea that people can change their minds thoughtfully without loss of face and power.  Try not to tell or boss  the other person, instead ask them relevant questions, which may begin ‘What if . . ‘ or ‘do you think that . . .?

Fighting Over Nothing

When is disagreement about something and when is it about nothing?

Perhaps it may help to rephrase that… Often conflict causes disagreements about not very much or even nothing at all! The problem is the conflict, not the issue.  We see this all the time in mediation. It’s why mediation is so much better at resolving disputes than litigation. The legal system can only deal with the legal basis of disagreements, even if there isn’t really a legal basis, it cannot help with the non legal conflict drivers, even when that is the problem that needs sorting out.

Let’s look at a typical example. Two children are deeply jealous of their mother’s attention for the other child.  They grow up and courteously dislike each other. They always compete for parental time and attention and resent the time the mother spends with their sibling. If challenged they would deny this, but the conflict is deeply embedded in their sub conscious minds, it will never go away and informs all their exchanges in relation to their mother. That mother becomes ill and develops Dementia. One of them starts to look after her. The other has difficulty seeing the mother and is sometimes denied access. There are huge control issues and a legal dispute may well emerge. On the face of it that dispute will be about the Power of Attorney, who controls the mother’s money or makes decisions about her health and welfare. There may be a dispute about her jewellery all the terms of her Will, whether she had capacity to make the Will or Power of Attorney, particularly if it favours one sibling over the other. Was it fair, was it right or was undue influence brought to bear on the elderly parent?

In reality, assessing the capacity of someone with dementia is notoriously difficult, as it comes and goes. So legal proceedings on this can be fraught with difficulty and be a bit of a gamble. Also, the dispute originates in the sibling relationship and entrenched conflict. The legal dispute is an expression of that. Hence settling that litigation will be really hard, because it isn’t just about the legal rights and wrongs. Costs will mount and relationships worsen and all the time the cure would be mediation. Mediation is the medicine that reaches the parts litigation can’t reach. Mediation deals with the root cause, not the symptoms. Litigation in cases like this is akin to amputation for an infection. Treat the infection and you may well preserve something precious and save great suffering and stress. Litigate and the losses can be incalculable. It certainly rarely improves the situation!

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It’s the same in the workplace, in the work team. If people can’t get along they quarrel and precious work time and energy is wasted in their conflict.  If the the conflict is bad enough then stalemate can result, paralysing your business. Yet the reason you may have recruited two very different people and asked them to work together may be good.  They may have a complimentary skills and you want to stop the conflict between them and harness their different skills to produce useful outcomes for your business. The legal remedy is disciplinary or grievance procedures and finally termination or redundancy. This is an incredibly expensive gamble and diverts you and your team from what you want to be doing – running the business. A workplace mediator can often help teams work together, solving your problem so amputation isn’t necessary.

So when you seem to have an intractable problem between people, ask yourself is it ‘them’ or the presenting issue? If you solve this issue, will there always be something else? Might a chat with a mediator be the most use to you?
You have nothing to lose and quite a lot to gain.