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Child Support: Value for Money?

February 2nd, 2012 by Rachel Osgood

In 1993, the Government of the day removed the right for single parents to seek maintenance for their children through the courts.  Instead, it provided the infamous Child Support Agency, the purpose of which was to calculate, collect and (if necessary) enforce maintenance assessments from the non-resident parent. 

Parents had little or no control.  If they could not agree, then their only option was to apply to the Agency, which would calculate the amount of maintenance due (according to a hideously complicated and almost wholly incomprehensible formula), regardless of other financial arrangements the parents may have made and without the flexibility of the court system to take individual circumstances into account.  Parents who had been left to rely on the State for support following the departure of the other parent by and large had no choice:  they either applied to the Agency to assess and enforce payment, or their benefits were cut.

 Unpopular with resident and non-resident parents alike, and woefully inadequate, the Agency failed to fulfil its purpose.  By 2007, it was costing the taxpayer £520m to run, but despite the cost it had failed to collect maintenance totalling about £3.7b.  Some amendments had been made along the way (eg simplification of the calculation, recognition in limited circumstances of additional payments made by the non-resident parent towards joint debts and travel costs; power to depart from the statutory formula where, for example, the non-resident parent was living a lifestyle incompatible with his or her declared income), but by 2007 the Agency was in its dying days.

In 2008, the Agency was subsumed into the Child Maintenance and Enforcement Commission (CMEC), which took over responsibility for the functions of the Agency.  According to its annual report (2009/10), CMEC “will not be burdened with the historical problems of the CSA, but the Commission will also continue to improve the existing schemes in the meantime”.  Legislation was passed which changed the formula once again and provided a “gateway” through which parents must pass before they are allowed to apply for an assessment.  The gateway is also referred to as “Options”, but rather than providing genuine choices, it imposes a requirement to agree maintenance with the other parent or at least to take “reasonable steps” to do so.  Parents are to be “supported” in this respect. 

 So far, so good.  Except that only a tiny part of the legislation has come into effect.  The Child Support Agency is still, in reality, lumbering like a wounded beast after its quarry.  The old formulae still apply.  Administrative costs have increased to £572m (although reduced from their 2008/9 high of £605m).  Arrears still stand at about £3.7b.  In its 2011 Green Paper[1], the Government stated that for each £1 of maintenance recovered the cost was 40p, which was not good value for money for the taxpayer.

Even worse news for the taxpayer was the abolition of the old provisions which reduced a recipient’s benefits by £1 for each £1 of maintenance collected.  One of the Agency’s original purposes was to shift responsibility for the financial support of children from the State back to the non-resident parent.  However, we now find the megalithic Child Support Agency, funded by the taxpayer to collect maintenance, working alongside the Department for Work and Pensions – also funded by the taxpayer -  to provide maintenance in addition to benefits.  Thus, those parents who were able to recover maintenance from the non-resident parent were in a significantly better position than those who could not, all at the expense of the taxpayer and – more importantly – leaving at a disadvantage those children whose non-resident parents could not or would not pay.

 Against this backdrop was the news last week that the Lords have rejected the Government’s proposals to charge people to use CMEC.  In fact, these proposals are not new, and appeared originally in the 2008 legislation from which CMEC was born[2].  They are now being discussed as part of the hugely controversial Welfare Reform Bill[3], and it is suggested that the charge should be £100 (£50 for people in receipt of benefits).

 On the face of it, charging people to use the service provided by CMEC appears to be commonsense.  People expect to pay for services.  Why should this be different?

 The Lords objected on the basis that it was unfair to charge lone parents who had tried and failed to get their ex-partners to pay maintenance.  These people, it was argued, are amongst the most vulnerable in society.  Left without support for their children, often reliant on benefits and living on a severely restricted income, they are already at a disadvantage compared to their counterparts who are receiving maintenance in addition to benefits, but who may now be forced to pay for a service which is at best patchy, and at worst wholly unreliable.  Not only this, but in the event that CMEC does manage to recover maintenance, it is proposed that the recipient will be obliged in the future to pay ongoing charges of 7 -12% of any maintenance recovered – a double whammy for the unfortunate families of reluctant payers.

 So, under these proposals, a parent left with the care of the children, and dependant on benefits, would have no choice but to stump up £50 (£20 up front and the balance by instalments, but no doubt a significant proportion of the weekly income nonetheless) before being allowed access to a system which was created to force non-resident parents to support their children.  In these circumstances, if it is reasonable for the parent to pay for the service, it must also be reasonable to expect the service to deliver.  If it cannot deliver, then genuine “options” should be available.

 In these challenging times, it is of course incumbent upon the Government to seek value for money in all things.  It is however difficult to understand the basis upon which the most vulnerable families whose hands (in the words of Barnados’ chief executive) are tied by poverty should be penalised for being forced to use a system which has never been fit for purpose and is even now struggling under the weight of its unfulfilled obligations.

 

 

  Rachel is a specialist family lawyer with many years’ experience dealing with divorce and related issues, including substantial experience of complex and/or large money cases.  She deals with both collaborative and more traditional cases, and her cases include a significant proportion involving pensions, large-scale property interests, trusts, family companies and partnerships.  She is also experienced in dealing with cases where assets need to be protected or traced – sometimes urgently – and the particular and often difficult financial issues arising from the breakdown of an unmarried relationship, such as the future of jointly owned property.  Rachel has experience in dealing with cases involving an international element, both in relation to financial issues and in relation to children.

Rachel is particularly well respected for her ability to deal with complex cases and in relation to her attention to detail.  Perhaps even more importantly, her clients value her sympathetic approach and personal touch:  they know that each of them matters.  Rachel welcomes enquiries from anyone suffering the consequences of a relationship breakdown, whether that relationship is a marriage, a civil partnership or simply living together.

  

[1] ‘Strengthening Families, promoting parental responsibility: the future of child maintenance’ (Cm 7990)

[2] Child Maintenance and Other Payments Act 2008, section 6(1)

[3] Section 137(3)

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Rachel Osgood chairs Collaborative Law event

January 16th, 2012 by Paris Smith News

Rachel Osgood, Associate in Paris Smith’s Family Department, and Chair of the local Collaborative Law Group, played host to an audience of 60 local professionals at an event on 12 January.

The Collaborative Group of Southampton, Lymington and Winchester comprises a group of family lawyers from a number of firms across the region, all of whom are qualified to practise collaborative law, and all of whom are committed to it as the “no court alternative” for couples who are separating or divorcing.  Over the last few years, the Group has pooled its time and resources in order to establish a shared body of experience, expertise and good practice in this relatively new form of dispute resolution.  Its members work together in order to promote collaborative law and to raise awareness of it as an option for couples who are separating, but who wish to do so with dignity and respect.

The event took place at The Mayor’s Parlour at the Civic Centre in Southampton, and was attended by the Worshipful Mayor himself, Councillor Terry Matthews, and the Mayoress, Mrs Lesley Matthews.  Presentations were given by several members of the group, illustrating the way in which the process works, and Karen Morley – a life coach – spoke about the ways in which she can help people and couples who are going through a divorce or separation, and how her work dovetails with the collaborative law process.

Collaborative law relies upon a commitment by all parties – including the lawyers – to openness and respect, and to putting the children first.  The process takes place via a number of round table meetings, so that issues are discussed openly and constructively.  There is little written communication between meetings, so that the opportunity for misunderstandings and brewing resentments is more limited.  In that environment, trust begins to flourish once more, and the couple is free to explore solutions in a co-operative and often creative way.  If – which is unusual – they can’t reach agreement, then the lawyers are bound to withdraw from the process – an incredibly powerful incentive to keep talking.  The combination of openness and commitment with direct communication is extraordinary – what Rachel described as “a kind of magic”.

The event was attended by a capacity crowd of accountants, barristers, life coaches, solicitors and other professionals.  To those who had not previously heard of collaborative law, it seemed like the obvious way forward.  No-one wants to get divorced.  But if divorce is inevitable, then a “good divorce” is surely more likely if everyone is talking to each other.

Rachel is a specialist family lawyer with many years’ experience dealing with divorce and related issues, including substantial experience of complex and/or large money cases.  She deals with both collaborative and more traditional cases, and her cases include a significant proportion involving pensions, large-scale property interests, trusts, family companies and partnerships.  She is also experienced in dealing with cases where assets need to be protected or traced – sometimes urgently – and the particular and often difficult financial issues arising from the breakdown of an unmarried relationship, such as the future of jointly owned property.  Rachel has experience in dealing with cases involving an international element, both in relation to financial issues and in relation to children.
Rachel is particularly well respected for her ability to deal with complex cases and in relation to her attention to detail.  Perhaps even more importantly, her clients value her sympathetic approach and personal touch:  they know that each of them matters.  Rachel welcomes enquiries from anyone suffering the consequences of a relationship breakdown, whether that relationship is a marriage, a civil partnership or simply living together.

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Mapping Paths to Family Justice

December 5th, 2011 by Rachel Osgood

New research being carried out jointly by the Universities of Exeter and Kent aims to provide detailed insight into the means by which disputes arising from the breakdown of a family relationship are resolved and the positive (or otherwise) effects of those means.

The research will concentrate on 4 main questions:

  1. How widely used is each process, and how embedded has it become in the public mind as a means of resolving family disputes?
  2. How positive or negative have peoples’ experiences of the different processes been in the short and longer term?
  3. What norms of family dispute resolution are embedded in the different alternatives?
  4. Are particular alternatives more or less appropriate for particular kinds of cases of parties?

The research will be split into 3 phases.  The first has already been completed, and involved identifying and interviewing a sample of 3,000 adults representative of the population as a whole in order to assess awareness of the “alternative” forms of dispute resolution and interviewees’ experiences of the different processes.

The second phase will involve interviewing lawyers, mediators, and parties who have experienced family dispute resolution, and will concentrate in greater detail on finding the answers to questions 2 – 4.

Finally, the interviews will be transcribed and analysed, with due consideration given to differences in age, gender, geographical location, socio-economic groups, ethnicity, relationship status etc. 

Findings  from the 3 phases will be synthesised in order to arrive at an overall “map” of experience, and the map will be used to advise and inform lawyers, mediators, policy-makers, legislators and training bodies.

The preliminary findings from the first phase are intriguing.  For example, 20 years after its widespread introduction into family law practice, only 44% of the sample had heard of mediation as a form of dispute resolution.  Compared to that statistic, collaborative law – in its relative infancy and at 14% awareness – doesn’t seem too bad, although it highlights the need for continued effort in this regard.  Depressingly, 45% of the sample had heard of neither mediation, collaborative law nor solicitor-led negotiations.

From the sample, 292 people had experienced divorce since 1996.  Of those, only 7% had been offered collaboration.  The good news for the collaborative movement is that, of the 80% who took up the offer, 66% were either satisfied or very satisfied.  This compares favourably to mediation:  28% were offered mediation, of which 58% took up the offer, but only 41% were satisfied or very satisfied.  It would be interesting to understand the difference between the two levels of satisfaction, but perhaps feelings of control (or lack thereof) might play a significant part in the participants’ experiences.

In any event, there is clearly much to be done in promoting both mediation and collaborative law, and thereafter in ensuring that clients exit the experience more positively.  By way of contrast, solicitor-led negotiation was found to have been offered in 31% of cases, of which 78% had taken up the offer and 65% were either satisfied or very satisfied.  Solicitor-led negotiation is often viewed with scepticism by practitioners who fear spiralling costs, never-ending timescales and inability to reach and/or enforce agreement.  Yet these results show that, not only is it offered more frequently than mediation and collaborative law, satisfaction levels are broadly equivalent to those experienced in collaborative law.

Again, could this be explained by participants feeling that they – with the partisan support of their lawyers – are in control of an otherwise confusing and sometimes frightening experience?

The final results of the project will be disseminated at a conference to be held in 2014.  In the meantime, it is intended that articles and training resources will be developed, and a website is already in the course of construction.

The research is being funded by the Economic and Social Research Council, which is a non-departmental public body funded primarily by the Department for Business, Innovation and Skills.  Notwithstanding the eminently sensible reasons behind the research, perhaps the biggest question arising is who is going to pay to implement any policies developed as a result?

If you wish to discuss any of the issues raised in this blog please contact rachel.osgood@parissmith.co.uk

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Kernott v Jones – ‘Legal title is not necessarily the be-all and end-all’

November 15th, 2011 by Bindu Bansal

On 9 November 2011, the Supreme Court handed down the judgment on Kernott v Jones, 7 months after it was heard (on 4 May 2011). 

The case involved Mr Kernott (K) and Ms Jones (J) who met in 1980 and had 2 children.  They purchased their property (1995), jointly, with J providing the deposit and the remainder by way of a mortgage.  The legal title showed them as 50/50 owners and no other documents were prepared to show that one had a greater share than the other.  Later (1986), they obtained a joint loan for an extension to the property (with K doing some of the labouring too), enhancing the value of the property.

After some difficultly in the relationship, K moved out (1993) and J remained at the property with the children.  J paid for all expenses with no contribution from K, even towards the support for the children. 

In 1996, K and J tried to sell the property but unfortunately were not successful.  Instead, they surrendered one of their joint policies and divided the proceeds, equally.  K then purchased a property in his own name with his share of the policy proceeds. 

Proceedings were issued years later (2007) and after a number of appeals, finally reached the Supreme Court. 

The judges decided that post-separation, the beneficial interests of the K and J, had changed and restored the decision of the earlier court (the county court), stating that K had a 10% interest in the property and J, 90%. 

The judges found that there was enough evidence to suggest that K’s interest should be crystallised at the point he left and set up home for himself.  Had the property sold in 1996, K would have received his interest and there would have been no further argument.  As the house did not sell, they had to opt for Plan B.  From the splitting of the policy and the actions surrounding it, it was reasonable to infer that K would no longer have an interest in the property and what they had intended in relation to their respective shares, changed.

The decision was long-awaited but was divided (3:2), showing that the law governing this area is far from straightforward and a change may be needed.

Some points of principle are to be noted from the decision, where respective interests are not clear in a jointly owned property:

• The  presumption is that the shares in a property follow the legal title.  For example, parties having an equal share in a jointly owned property.
• This presumption, though, can be displaced, by showing that what the parties had intended at the time of registration of title was different to this, and/or that they later formed a new intention that their respective interests would change
• To work out what they intended, consideration is needed to what they said and did.
• If it is not possible to work out what they intended from this, then a court will have to look at what is fair when considering how they conducted their whole course of dealings.

There isn’t a specific statute that dictates how cohabitees financial affairs are to be resolved when they separate, as there is for married couples (the Matrimonial Causes Act 1973) and civil partners (the Civil Partnership Act 2005). This judgment has given judges more discretion and some will say, hasn’t helped the current situation, making it likely for further cases to end up at court, where the matter is entirely ‘in the hands of the judges.’

Leaving things to chance (or letting a judge decide) is risky, costly and can take months to determine.  While the law is still unclear on this area (and particularly when the Government doesn’t have any immediate plans to look at the law governing cohabitees), cohabitees are advised that preparing written documents and specifying what share each party has at the outset is vital and can save a great deal of time and money.  Care should be taken to set out, what if anything, should happen to the shares in the event of changes in circumstances such as separation, as this should help avoid the court imputing an intention to the co-owners, they may never have had.

Advice on this area including preparation of cohabitation agreements (living together agreements), can be sought from any one of the family lawyers at Paris Smith.   Please contact bindu.bansal@parissmith.co.uk

“For advice on the implications of this judgment for trustees in bankruptcy or others affected by this judgment following the bankruptcy of one of the parties, please contact mike.pavitt@parissmith.co.uk“.

To read the full case: http://www.supremecourt.gov.uk/docs/UKSC_2010_0130_Judgment.pdf

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Declarations of Trust – Co-ownership of properties by unmarried couples

November 10th, 2011 by Elaine Padbury

You may have heard on the news this morning that the Supreme Court have ruled on a case where an unmarried couple owned a property jointly.  Following the breakdown of the relationship, the couple could not agree how much each was entitled to receive. 

After a relationship has broken down, many unmarried couples discover that they have very few rights in relation to property which they own together.  The same may apply where one of them owns the property but the other has contributed to the purchase costs.

The routine conveyancing process deals with the legal formalities for registration of the property in the names of the couple at the Land Registry, but does nothing to reflect the shares in which they contributed to the purchase price, nor the shares in which the eventual sale proceeds should be paid.  If the property is owned as joint tenants or tenants in common without any other clarification, the net sale proceeds would be split equally between the co-owners, regardless of who paid the deposit, who paid the mortgage or the other purchase costs.  

Parents may have contributed to the deposit paid by their child, and would wish to ensure that the money is retained by that child in the event of a breakdown in the relationship.
 
A Declaration of Trust is a statement of interest in an asset, such as a house, which makes it clear how much is owned and by whom. Two or more people may be included – the document could relate, for example, to the purchase of a house by a couple, or by a group of friends. It should clearly set out the agreement between them, including how much of the purchase price was paid by each person and how any proceeds of sale should be split in the event of a breakdown in the relationship or the death of one of the parties.  It would also cover matters such as who has responsibility for the mortgage payments, maintenance and utility costs and so on,

Declarations of Trust are very cost-effective and useful documents.  They may be as simple or as complex as is required in the given situation.  They are not only useful in connection with land, but can be made for any asset.

If you wish to discuss any issues raised in this blog please contact elaine.padbury@parissmith.co.uk

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Shared care is not to be the default setting when parents separate

November 8th, 2011 by Bindu Bansal

The final report of  family justice review was published on 3 November 2011, setting out a number a improvements of the family justice; process and procedures.

Some have welcomed the recommendations, as a step in the right direction, to a system where it is thought that we are not moving with the times, particularly where the traditional family set up has evolved and changed.

For others, the proposals were thought to recommend that parents have an equal right of shared care of children between parents.  However, the final recommendation on this point was:

Government should find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents.
No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.

This has aggrieved many, especially fathers as they feel that this is no different to what there is currently and therefore, disputes between parents will continue, whereby parents with care (often the mother) may still be perceived, by some, as having the upper hand.

Giving parents an automatic equal right to shared care as the starting point, might be considered as a ‘good thing’ but where each case depends on the individual facts, especially where no two family situations are likely to be the same, it is understandable why the report did not recommend this. The panel had considered practices in other countries and noting, how it did not always ensure that the welfare of the child was paramount, decided not to make any firms recommendations on equal shared care.

Parents are presented with labels such as ‘residence/custody’ or ‘contact/access’, by the court and these can sometimes, unhelpfully give the wrong impression as to the balance of rights between parents; the parent with “residence” believing (wrongly) that they have greater rights in relation to the child than the parent enjoying “contact”.  The report quite rightly suggested greater emphasis on parental responsibility, which is what in fact determines the rights, duties, powers, responsibilities and authority that each parent has in relation to a child.   Residence simply defines where the child’s main home should be.  Nothing more.  A change therefore may not necessarily required in law.   The focus need only shift to parental responsibility and what is in the best interests of the child.  .

The report did also highlight the importance of good education and recommended parents using ‘Parental Arrangements’ during the separation process.  That may be the ‘better’ starting point?

 If you wish to discuss any issues raised in this blog please contact bindu.bansal@parissmith.co.uk

To read the full report:
http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-final-report.pdf

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The Prince and the Pauper: Trustee in Bankruptcy costs exposure on assignment of vested claims to third parties examined by Court of Appeal

October 28th, 2011 by Mike Pavitt

NOTE: This post was updated on 1st November 2011 to reflect new information.

On 27 October 2011 the Court of Appeal handed down its judgment in the case of Stephen Hunt v Mrs Janan Harb and HRH Prince Abdul Aziz Bin Fahd Abdul Aziz [2011] EWCA Civ 1239.

The case was significant for a number of reasons, but particularly to trustees in bankruptcy who are looking to assign, or otherwise being asked to consider assigning, rights of action which vest in them as trustees of a bankrupt estate, and of course to third parties looking to procure such assignments or defend claims from assignees.

The facts concern a claim whereby the bankrupt (and appellant), Mrs Harb, claimed to have secretly married HRH the King of Saudi Arabia in 1968, on which grounds she brought a court action in 2003 under s27 Matrimonial Causes Act 1973. She further claimed that within a matter of weeks, in settlement of that action, she reached an oral financial settlement with HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz which involved both cash and the transfer of valuable property, which consideration she never received. Mrs Harb was bankrupted on her own petition in 2008 owing debts of some £3.5 million. Her first trustee in bankruptcy investigated the strength of the claims against the Prince and received legal advice that the claim had merit but later discovered he had a conflict. A week before the claim would otherwise have become statute barred, Stephen Hunt was approached to replace the orginal trustee in bankruptcy. He took the appointment and instructed the (inherited) solicitors to issue and serve proceedings against the Prince, in the face of the approaching limitation date. When he later discovered an omission by the solicitors to secure ATE insurance despite instructions that they should do so before service, and was told that solicitors and Counsel were not prepared to act on a CFA basis, Mr Hunt had to decide between funding the case in some other way or withdrawing the proceedings. He purported to discontinue the claim. Mrs Harb objected and intervened in the proceedings. The High Court set aside Mr Hunt’s notice of discontinuance and directed him to invite offers to take an assignment of the right of action from creditors and from the Prince, during which time the underlying claim would be adjourned and discontinued later if no offers were received.

Interestingly, the High Court then went on to give directions that Mr Hunt would be entitled to reject any offer under which he would receive a share in the proceeds of the assigned action, owing to the fact that the assignee on such terms would be a mere nominee or delegate of the trustee so there would be an inherent costs risk to the trustee personally were he to assign on such terms. Mrs Harb appealed this particular direction on the basis there would in fact be no risk to Mr Hunt if he were to assign to her on such terms and she were to pursue the Prince in Mr Hunt’s name and fail. The Court of Appeal were not prepared to accept this as a general proposition, holding that such a risk did exist on the authorities, and that each case would depend on its merits, for example in another case the trustee might be offered a substantial indemnity from a prospective assignee which would reduce the risk.

The Court of Appeal went on to strike that part of the High Court order which would have entitled Mr Hunt automatically to reject an offer in which he would receive a share of the proceeds on the basis that the Judge did not have before him evidence of what offers were available, or were likely to be made, leaving open the question of whether in an appropriate case, if all offers were already in, it might be right for the Court to make such an order in the future.

The main implications of this judgment in our view are:

  1. it serves as a reminder that a trustee in bankruptcy is at particular risk on costs if he assigns a cause of action, more so than a liquidator or administrator would be for example;
  2. it offers some helpful guidance as to how trustees in bankruptcy should approach such questions.

It has long been best practice for trustees in bankruptcy to invite offers in cases where reasonable causes of action might be assigned, and it would seem that provided the trustee has made proper attempts to invite such offers, he is unlikely to be compelled to accept an offer which does not provide adequate and real security in terms of his own exposure as to costs. In most cases, therefore, a lump sum payment for an assignment will continue to be more attractive in principle to a trustee of a bankruptcy estate, although each case must be examined carefully on its facts.

As a separate observation, although at the time of writing the writer did not have sight of the judgment in the Court below, we are given to understand that Mr Hunt’s notice of discontinuance was set aside at least in part on the basis that this was beyond his powers, in that it was a decision which the Court felt required separate sanction (from the creditors or the Court). If that is right, and this point was not before the Court of Appeal, this is a matter for debate. It seems to the writer and to specialist insolvency Counsel canvassed on the point that discontinuing would fall within the ambit of a trustee’s powers exercisable without sanction (see for example Insolvency Act 1986, Schedule 5, Part II, para 9B if the discontinuance was on agreed terms) and/or that sanction to commence proceedings should have implied within it sanction to discontinue them if the progress of the cases suggests this is the appropriate course. Were this not so, a trustee in bankruptcy might commence proceedings with the benefit of sanction and be prevented or at least delayed, by the refusal of further sanction from the creditors, from extricating himself from continuing costs exposure on a claim in which he would have personal liability for costs. Of course, the Court has an overarching power to direct the actions of its officers, including trustees in bankruptcy, but the insolvency industry as a whole has a genuine interest in achieving clarity as to what its office holders are and are not permitted to do in the context of ongoing litigation, particularly where, as in the case of bankruptcy, personal costs liability is at stake. It cannot be in the long term interests of creditors if insolvency practitioners are put off from litigating proper causes of action in the first place owing to genuine fears about incurring uncontrollable levels of personal liability.

For more information on this case or about bankruptcy generally, please contact Mike Pavitt, our specialist insolvency Partner.

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A Hard Luck Story

October 11th, 2011 by Rachel Osgood

Oliver is 17 and is studying for his ‘A’ Levels.  His parents divorced years ago, and he remained with his mother.  A final order was made within the divorce proceedings, which provided for Oliver’s father to pay child maintenance to his mother at quite a significant rate.  Oliver’s father did so until fairly recently, but his relationship with Oliver was never good and, over the years, they became completely estranged.  They haven’t spoken now for about 2 years, and his father refuses to take Oliver’s calls.

Oliver’s mother is ill.  There was a clean break between her and Oliver’s father at the time of the divorce, but due to her illness she was unable to work, and was forced to eat into her capital in order to make ends meet.  She is now not in a position to support Oliver herself, and Oliver wants to go to university.

Oliver’s mother can’t afford to instruct a solicitor to enforce the maintenance order, so she applies to the CSA.  She knows that Oliver’s father is relatively wealthy and she knows that, at least until Oliver finishes his A levels the father will have to pay 15% of his net income.  She waits patiently for the assessment.  When it comes, she can’t believe her eyes.  Oliver’s father is required to pay only £5 per week!

Oliver’s father is much older than his mother, and is now in receipt of the state pension.  As such, he is automatically assessed at the flat rate.

There’s nothing for it:  Oliver’s mother must apply under the variation provisions for an increase.  She starts the process, but inevitably it takes ages, and Oliver finishes his A levels before the variation application is determined.  The CSA no longer has jurisdiction.

Oliver starts university.  He was able to save some money over the summer with which to pay his tuition fees, and he is surviving for the time being on his student loan.  Then, sadly, his mother dies.

Oliver is desperate, so he sees a solicitor for a free half hour.  This is what he is told:

• The old maintenance order was to last until Oliver had attained the age of 18 or ceased full time secondary education, whichever was the later.  Accordingly, it ended on his 18th birthday, and there is nothing to enforce.
• The ancillary relief proceedings died with Oliver’s mother.  He cannot intervene in those proceedings and seek a further maintenance order. 
• Under Schedule 1 Children Act 1989, the court could entertain an application by Oliver for maintenance.

The solicitor opens his Red Book.  His eyes blur in horror.  This is what section 2(3) Schedule 1 tells him:

An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.

A maintenance order was in force with respect to Oliver immediately before he reached the age of 16.  He can’t apply under Schedule 1.  He can’t apply in the old divorce proceedings.  And there is no-one else who can apply for him.

 If you require any further information on the points raised in this blog or wish to discuss any issues within it, please contact Rachel Osgood at rachel.osgood@parissmith.co.uk

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Legal 500 2011 Results

September 30th, 2011 by Paris Smith News

Paris Smith are delighted to be recommended as a top tier firm in Employment Law, Family Law and Personal Tax, Trusts and Probate Law.

We have also been “recommended” for our expertise in the following practice areas:-

Corporate and Commercial, Dispute Resolution, Banking and Finance, Insolvency and Corporate Recovery, Charities, Local Government, Commercial Property, Planning, Intellectual Property, IT and Telecoms and Sport.

Three of our lawyers have been listed in the elite “leading lawyers” list, namely Andrew Heathcock (Company Commercial), Huw Miles (Family) and Mark Howarth (Commercial Property).

The following  lawyers have also been “recommended” for their expertise in their fields, namely Sean Davies (Company Commercial), Clive Thomson and Peter Taylor (Dispute Resolution), James McNeil (Banking and Finance), Clive Dobbin and David Roath (Employment), Frank Prior and Neil Davies (Family), Crispin Jameson and David Bird (Personal Tax, Trusts and Probate), Nick Vaughan and Stuart Allen (Commercial Property), Janet May (Planning) (Sport)

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Posted in Charity, Children Act, Commercial Law, Construction, Dispute Resolution, Employment Law, Family Matters, Health & Care, Health & Safety, Housing Law, Human Resources, Insolvency, IT/IP, Motor Trade, Property, Retail, Sports | No Comments »

Rachel Osgood assumes Chair of Southampton Collaborative Law Group

August 26th, 2011 by Paris Smith News

Rachel Osgood, an Associate in Paris Smith’s Family Department, is now chair of the Southampton Collaborative Law Group.  She assumed her new role on 28 July 2011, with the unanimous support of the group.

The group comprises collaborative lawyers and affiliated professionals from a variety of different firms and organisations in the Southampton area, including Southampton itself, Lymington, Winchester and Fareham.  The aim of the group is to promote public awareness of collaborative practice, and to improve delivery of the service by sharing experience and expertise. 

Collaborative practice is the “no court alternative” in family disputes.  It enables couples to resolve their differences in an open, co-operative and respectful manner.  It seeks to avoid litigation, and the emphasis is very much on the couple to dictate the agenda and to find their own ways of reaching a mutually acceptable compromise.  Nothing is imposed on them, and there is no “behind the scenes” wrangling, either between the couple, or between the lawyers.  On the contrary, by all discussions taking place openly, during a course of meetings involving the couple and their lawyers, everything is up front and personal.  Crucially, if one of them walks away from the negotiating table, then they both have to start from scratch – with new lawyers on both sides.

There is also the option to ask other people to attend the meetings.  For example, it may be helpful to involve an independent financial advisor, or for a neutral lawyer – perhaps a barrister – to act as a sort of private judge.  Some have found the involvement of a relationship coach to be beneficial in terms of guiding them through the emotional pitfalls of their relationship breakdown.

Collaborative practice is still in its relative infancy, but it is the shape of the future.  People don’t want to slug it out in court – often at a cost of tens of thousands of pounds.  Anyway, these days, they can’t afford to.  In any case, there are usually children to consider, and no matter how old they are, they don’t want to see their parents go through the horrendous stress of an acrimonious split.  Much better that everyone sits down together in an atmosphere of mutual openness and trust, and simply gets on with the job of sorting things out.

The Southampton Collaborative group has considerable experience, and is committed to its task of making collaborative practice the norm, rather than the exception.  It has already staged a number of awareness-raising events, and is due to host another such event early next year.

Rachel Osgood qualified as a collaborative lawyer in 2004.  She joined Paris Smith from Kingsley Napley in London in 2005.  She specialises in the resolution of financial issues arising from the breakdown of relationships and also in the resolution of issues relating to the children.  She was one of the founding members of the Southampton Collaborative group in 2005.  Of her recent appointment, Rachel says, “I am excited to be given the opportunity to help steer the group through the next stage.  We have all been working hard over the past few years to promote collaborative practice, and we are all confident that, given the choice, clients would far rather deal with their problems face to face, in a respectful way, rather than being locked into the huge expense of court proceedings.  We need to get the message out there”.

Rachel continues her work within Paris Smith’s Family Department alongside her new role.

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