A week in family law: Child maintenance, a car crash and two Presidents

Family Law|November 16th 2018

Scottish National Party MP Marion Fellows has introduced a private members’ bill in the House of Commons that aims to amend the child maintenance scheme, including removing certain fees for child maintenance services, and making new provisions about the calculation of child maintenance payments. Ms Fellows’ Child Maintenance Bill 2017-19 sets out to improve the Child Maintenance Service (‘CMS’) in four ways: by abolishing the 4% maintenance levy on parents requiring the CMS to collect the maintenance for them, by abolishing the £20 CMS application fee, by reducing from 25% to 10% in the change-in-income threshold that must be breached for maintenance payments to be recalculated, and by including the value of any equity in the non-resident parent’s primary residence in maintenance calculations, when it exceeds £500,000. The Bill is due to have its second reading on the 23rd of November. For my thoughts upon these proposals, see the post that I wrote here yesterday.

“I likened it to arriving at the scene of a car crash, and wondered what one could do about it.  This situation should never have arisen.

So begins the judgment of Her Honour Judge Lazarus, in the case Z v Kent County Council. The words are actually those of the independent social worker involved in the case, but Judge Lazarus felt that they effectively summarised the key issues in the case. The situation that should not have arisen was that a young child was made the subject of a care order and placed with foster carers, when grandparents who might have offered a home for him were unaware of his existence. Judge Lazarus said that the child’s maternal grandmother only found out about the child’s existence four days after the care order was made, and that the local authority, the social worker, the children’s guardian, and the independent social worker all acknowledged that had she and her husband put themselves forward in those proceedings and been assessed it is highly likely that they would have received a positive assessment as the child’s proposed Special Guardians. Judge Lazarus commented: “This was indeed a situation that should never have arisen, on a number of fronts.  It represents a wide-ranging composite set of failings on the part of the local authority, its social work child protection and adult mental health teams, the legal representatives of all the parties, the Children’s Guardian and the court.” Ouch.

As I reported here, the new President of the Family Division Sir Andrew McFarlane has warned that changes in procedure and pay may be necessary to prevent a ‘talent drain’ of expert witnesses. In a speech to the Annual Bond Solon Expert Witness Conference he said that since he had become President he had been struck by accounts from courts all over the country as to how difficult it now is to find experts who are prepared to take on instruction in a family case. He said that he was going to investigate the reasons for this, but mentioned two obvious ones: lower rates of pay and experts’ bad experiences of having to waste their valuable time waiting around in court. He said that in the next 18 months to two years ‘virtual’ online hearings should be introduced, which should reduce the need for experts to have to attend court, as they will be able to give evidence remotely without having to be present in a court building. As to doing anything about rates of pay, which mostly come from public funds, good luck with that.

And finally, from the new President to the old. The Nuffield Foundation has appointed Sir James Munby as Chair of the Nuffield Family Justice Observatory. The Foundation is establishing the Observatory “to support the best possible decisions for children by improving the use of data and research evidence in the family justice system.” Sir James will oversee the Observatory’s development. Responding to the appointment he said: “The Nuffield Foundation has for many years played, and continues to play, an essential role in supporting research into topics of significance for everyone involved with family justice. I am pleased to have been appointed Chair of the Nuffield Family Justice Observatory, which is one of the most innovative, exciting and important developments for the family justice system in recent years. The Nuffield Foundation’s commitment of funding on a particularly generous scale will enable the Observatory to ‘get off the ground’ and to become, as I am sure it will, an established and vital part of the wider family justice system.”

Have a good weekend.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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