Monthly Archives: February 2014

Staying put amendment has been added to the Children and Families Bill.

247304984_0a387066d8_mSome of you may recall a blog post I wrote on the 9th of October 2013, entitled ‘Leaving Care and the Children and Families Bill’, in which I wrote about the proposed amendment to allow children who live with foster carers to stay within foster care until the age of 21 years, if both parties agree.  Well, on the 9th of February 2014 this amendment was formally added to the bill, which is now at the Report Stage in the House of Lords. Following this the bill only has to pass through the Third Reading and the consideration of amendments stage, before receiving Royal Assent. The progression of the bill can be viewed here:

The Fostering Network, the UK’s leading charity for foster care, who have represented the voice of foster care, and have been influencing policy and campaigning for improvements for nearly 40 years have been running a campaign in this regard: Don’t Move Me. This amendment represents a success on their behalf, with the charities role being praised by Lord Listowel during the debate in the Lords Chamber (

Every year hundreds of children in foster care are forced to leave their homes at the age of 17, despite the fact that children who are not in foster care on average do not leave home until the age of 25.

Lord Nash argued that the Government is committed to ensuring local authorities implement the change, stating that, ‘We are continuing to work with sector organisations on the guidance to ensure that it supports the effective implementation of this important new duty. We are committed to doing more to support care leavers, and I believe that the proposed new clause is a crucial step forward.’

The Fostering Network stated ‘that at present, some young people are supported to stay with their foster family beyond 17 by their local authority, while others are reliant on their foster carers being willing and able to keep them out of their own pocket. Many young people find themselves having to leave their foster home and live independently by their 18th birthdays. This change to the law will place a duty on English local authorities to facilitate and support staying put arrangements for all fostered young people, where this is what they and their foster carers want. Crucially, the importance of financial support for foster carers has been directly addressed by the Government: they have pledged an extra £40 million for local authorities over three years to ensure that foster carers will not be out of pocket as a result of offering staying put placements.’

The fact that children will now, with the passing of this bill, be able and supported to stay within foster care until the age of 21 years is a brilliant step in the right direction. As the amount of adult children living with their parents in the UK rises, it seems only right to ensure that foster children also have this option.

Photo by kamshots via Flickr under a Creative Commons license

Children will lose out if the new Child Maintenance Service charges are passed.

5419905792_c5743b0637_mThere are currently an estimated two million single parents in Britain today with 26% of dependent children households being single parent households, according to Gingerbread, an organisation that provides advice and practical support to single parents. Many of these single parent households rely on child maintenance paid by the child’s non-resident parent to survive. With approximately 124,000 applications on a yearly basis, the CSA was a system that allowed parents who could not come to their own arrangement regarding child maintenance to do so via the government agency. The CSA both calculate the amount of child maintenance due and collected, enforced and arranged transfer of the child maintenance. In a previous blog, entitled ‘Changes in Child Maintenance Calculations and how they affect you’, I wrote of the new child maintenance system replacing the CSA: the new scheme being the Child Maintenance Services or CMS. As the new scheme rolls out across the UK a new plan is emerging, this being the plan to start charging parents who need to use the CMS.

This new plan have been passed to parliament in the form of the Child Support Fees Regulations 2014. The plan includes the introduction of a £20 application fee to access the CMS and gain a child maintenance calculation. Furthermore should the non-resident parent fail to pay maintenance the resident parent will lose 4% of their child maintenance as part of the collection of maintenance fee, in addition the parent who fails to pay will be charged an additional 20% of the child maintenance as part of the collection fee. On this calculation, should the paying parent be order to pay £30 a week in child maintenance the receiving parent will lose £1.20 a week, totalling £62.40 a year and the paying parent would be paying an additional £6 a week, totalling £312 a year. Many single parents currently use the service to ensure that the money is drawn weekly from the paying parent and deposited to the receiving parent, without issue. The child in this situation is therefore losing out on at least £62.40 a year and if one were to look at this cynically it could be argued that the child is in fact losing out on £374.40 a year, which for most single parents is a significant amount.

Former Lord Chancellor Lord MacKay warned that the above plans were ‘unjustified in principle’. He is not the only one opposing the implementation of the charges. Lord Kirkwood warned that ‘condemning people to pay fees is contrary to natural justice, bad policy, and worst of all, inimical to the interests of the long-term future of many of our impoverished children.’ The Telegraph produced an article entitled, ‘Parents fight changes – and 20pc charges – in child maintenance reforms’, in which Janet Allbeson, a senior policy consultant at Gingerbread, said: “If you take away 4pc of income from a parent who is bringing up children, that is 4pc you are taking away from a child.” And Jerry Karlin, chairman of Families Need Fathers, added: “The proposals seem more likely to exacerbate problems for separated families than to help them work together. Parents who have trouble meeting a payment through circumstances beyond their control risk becoming caught up in a vicious cycle of accumulated debts and arrears.” Furthermore, when the plans were originally before the Lords in January 2012 peers from all parties expressed extreme alarm at the prospect of charging single parents to access the CMS.

There is however the argument from the government that implementing the charges may encourage separated parents to come to an amicable arrangement in regard to child maintenance. Some, however, may argue that this is somewhat naïve thinking on behalf of the government in that there are cases when it is virtually impossible for the receiving parent to agree with the paying parent and set up regular and consistent payment.  There is also the argument of punishment with regard to the paying parent, in that should they not pay they should be punished for not doing so hence the 20% additional charge, if this is to be accepted then why charge the receiving parent 4% in addition?

The government plans to close all existing CSA arrangements and ask the parents involved to come to an arrangement between themselves. If they are unable to do so the receiving parent will need to pay the £20 application fee to apply for a new maintenance order under the CMS scheme. Chief Executive of Gingerbread Fiona Weir stated that ‘It is deeply disappointing that the concerns of distinguished peers from all parties, and of course of single parents themselves, have been swept aside by government. Hundreds of thousands of parents will now face case closure and charges over the next few years. We are very concerned about the impact on children, for whom child maintenance is vital. The charges will bring added financial burdens to many single parent families who are already struggling, and pressure others into unstable private arrangements.’

So whether the Child Support Fees Regulation 2014 is made in to a UK statutory instrument or not remains to be seen, but it would appear to be an extremely controversial matter. It will surely face extensive debate and we all await its conclusion.

For further information on the articles and draft legislation quote above, please see the below links:

The Child Support Fees Regulation 2014:

Gingerbread organisation homepage:

Parents fight changes – and 20pc charges – in child maintenance reforms, The Telegraph:

Changes in Child Maintenance Calculations and how they affect you, Stowe Family Law Trainee Blog, by Zoe White:

Photo by aarongilson via Flickr under a Creative Commons license

Putting child welfare first – amends made to ‘shared parenting’ clause. By guest blogger Hayley Crossman.


Today has seen an amendment to clause 11 for the Children and Families Bill approved by the House of Lords and this has been reported by Family Law Week:

The controversial clause 11 stated that courts should “presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare” which had lead to some discourse amongst charities and professionals and many parents.  The main concern was that this presumption could undermine the requirement for the welfare of the child to be the court’s paramount consideration as contained in Section 1 of the Children Act 1989 and that parents who are looking to parent separately, outside of a relationship, may assume that they have a legal ‘entitlement’ to equally share residence or parenting of the children involved.The Shared parenting consortium which includes a number of well known children’s charities such as NSPCC and the lead charity Coram Children’s Legal Centre (CCLC) has been campaigning for the term ‘involvement’ to be clarified as meaning direct and indirect contact with no stipulated division of time between the parents.

The Bill will now move from the Third reading in the House of Lords back to the House of Commons in order for this amendment to be considered.

It has been interesting to follow this Bill from start to finish.  I was lucky enough to work on the Bill at the Department for Education and was able to hear firsthand the debates surrounding this clause. More information on this Bill and its progression through to Royal Assent can be followed on the Parliament website at

Photo by Scott Ableman via Flickr under a Creative Commons license

Split hearings, ‘non-accidental injury’ and Public Child Law Proceedings

5922817362_33078924c9_mOver the years and throughout the legal profession many judges and legal professionals have grappled with varying issues within the legal system, from societal advances affecting the way we look at the law to definitions of specific words affecting the way we police our society. Arguments, controversy and debate dog every legal system and rightly so, without such, advances would not be made and we would be stuck with draconian ideas of how society should behave.

Recently Ryder LJ gave some interesting guidance regarding split hearings and ‘non-accidental injury’ in public child law proceedings. He did so in the case of Re S (A Child) [2014] EWCA Civ 25. For those of you who are unsure as to what a split hearing actually is, it is a hearing that is divided in to two parts; I suppose that is kind of obvious. The first part is where the court makes findings of fact on the various issues identified within the case. The second part is where the court, based on its findings of fact, decides the case.

So why split a hearing? According to an article written by Rhiannon Davies and Charmain Gammon, both of whom are Barristers, in 2011, fact finding hearings can ‘narrow and determine issues within both public and private law proceedings so as to avoid delay, inform expert assessment and assist effective case management’ but can also have a negative effect in that they can ‘build in significant delay, unnecessarily “raise the temperature” of private law proceedings and incur disproportionate expense’. According to the President’s Guidance in Relation to Split Hearings, published in May 2010, ‘Judges and magistrates should always remember that the decision to direct a split hearing or to conduct a fact finding hearing is a judicial decision… Thus the court should not direct a fact finding hearing simply because the parties agree that one is necessary or because Cafcass says that it cannot report without one. Such considerations are, of course, to be taken into account, but they are not conclusive. In any event, the focus of any report is a matter for the court.’ Further the guidance states that ‘a fact finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. Even when the court comes to the conclusion that a fact finding hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing. In nearly every case, the court’s findings of fact inform its conclusions.’ In addition to the above the guidance draws the reader’s attention to the practice direction within this area which states that the courts must give directions, when a fact finding hearing is deemed necessary, to ensure ‘the matters in issue are determined expeditiously and fairly’.

As far back as 1996, judges were tackling the issue of when a split hearing should be used. Bracewell J stated that it would be of positive influence if the courts were to consider whether or not there were questions of fact in need of determination within a case at an early stage. This, according to Bracewell J, would allow ‘the substantive hearing to proceed more speedily’ and allow the court to ‘focus on the child’s welfare with greater clarity’. Bracewell J concluded that cases that would be suitable for split hearing were ‘cases in which there is a clear and stark issue, such as sexual abuse or physical abuse’ with the aim ‘to prevent delay and the ill-focused use of scarce expert resources’.

Since 1996 numerous cases have questioned when a split hearing should be used, bringing us to the latest case of Re S (A Child) [2014] EWCA Civ 25. This case resulted from a young girl being admitted to hospital with a skull fracture. The local authority stated that the injury was non-accidental, deliberately inflicted and had occurred whilst the girl was in the care of her parents. This case then gave rise to two issues, the first being that discussed above: when should a split hearing be used and the second being the question of the meaning of non-accidental injury.

In dealing with the first matter, Ryder LJ stated that split hearing should be use only where there is ‘a stark or discrete issue to be determined and an early conclusion to that issue will enable the substantive determination… to be made more expeditiously’. Further he stated that split hearings ‘should be used where the threshold criteria would not be satisfied if a finding could not be made in the most simple of cases, thereby concluding the proceedings, or in the most complex medical causation cases where death or very serious medical issues have arisen and an accurate medical diagnosis is integral to the future care of the child. It is inappropriate to argue a split hearing is required to enable a social care assessment to be undertaken. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider. A decision about a split hearing is a case management decision and accordingly Part 1 of the FPR 2010 and Pilot PD 12A apply. A split hearing is only justifiable where the delay is in furtherance of the overriding objective. Any such decision should be considered at the case management hearing and reasons should be recorded on the face of the order along with the issue to be tried.’

In dealing with the second matter, the definition of non-accidental injury, Ryder LJ stated ‘the term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).’ Further, Ryder J stated that ‘just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description.  If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms.  If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.’

So where does that leave us? The two areas still appear somewhat unresolved, even if we have a clearer idea of what is expected. Both areas still need further discussion and debate and it may be, like so many areas of law, that this debate will be ongoing for years to come. In a legal system reliant on words it is impossible to be so specific and clear as to completely avoid doubt or confusion. Every word we use has a thousand synonyms all of which have their own synonyms and thus we may be locked in an ongoing battle to have a system so clearly defined that there is no doubt as to exactly what is meant and trying to achieve this with words that are never going to result in the absence of doubt.

Useful links:

Re S (A Child) [2014] EWCA Civ 25:

When is a Fact Finding Hearing Necessary?, Rhiannon Davies and Charmian Gammon:

The President’s Guidance in Relation to Split Hearings:


Marriage Counselling could actually save you money. By guest blogger Becca Shenkin.

3563154055_6eef3fd771_mAs I was sitting at my desk having some lunch I read an article about how beneficial marriage counselling and preparation courses are. And why are they so beneficial? Well apart from helping couples through their marriages, and helping prepare couples to be wed, it was discovered that for every pound couples spend on counselling, taxpayers could save up to £11.50.

The Department of Education commissioned this independent evaluation as part of the government’s ongoing policy to support marriage.  Relationship breakdown is estimated to cost the UK economy £46 billion each year. Therefore, the uptake of these services such as those offered by Relate’s couple’s counselling and Marriage Care’s marriage preparation is essentially helping the economy, as well as individual couples.

Mark Molden, the Chief Executive of Marriage Care stated that “We know that relationship support works and we would encourage people of all ages to find out more about how the services evaluated in this report could help them at different stages of their relationship.”

This got me thinking about my dissertation, where I suggested that more emphasise should be placed on marriage and relationship education.  Marriage and Relationship Education (MRE) is currently being used in Australia and the United States of America as part of family policy.  MRE is arguably less stigmatising, less risky, less intrusive and less expensive. These arguments in favour of MRE suggest that couples are more likely to benefit from MRE programmes. MRE programmes should arguably be incorporated into public and private sectors. Such integration would allow current organisations to undertake marriage strengthening and in essence allow MRE to become a natural supplement to an organisation’s principal work. Therefore, there is the argument that MRE programmes could be implemented in community settings, religious organisations, universities and school.

MRE has two general concepts: to develop communication and problem solving skills that are central to a healthy and stable relationship and to provide didactic presentation of information that correlates with marital quality.  The aim of MRE is to enhance marital stability as well as educating individuals how to approach problems and conflicts that arise in marriage.  MRE could effectively support dynamic risk factors such as realistic relationship expectations and effective couple communication. These types of programmes should be introduced at effective stages in an individual’s life and relationship. Clearly , after the decision to divorce would be illogical. MRE should be offered in high schools, premarital, and during transition periods including parenthood, relocation, major illness and unemployment.

Another suggestion is that MRE could be provided over the internet. I have recently read a book by Richard Susskind called “Tomorrow’s Lawyers” which identifies that the legal world must change due to technological advances. Therefore, in line with Susskind’s argument about the future of legal services, the types of programmes mentioned in this blog could be performed over the internet, especially for lower risk couples where face-to-face education and counselling is not necessary.

MRE programmes are in accordance with Relate’s marriage counselling service and Marriage Care’s marriage preparation course and this then begs the question if the government should spend time investing in MRE programmes in order to help couples, and as we saw at the beginning of this blog, essentially help the economy.

As Mark Molden also said when talking about these services: “ it is not just about getting support when there’s a crisis; it’s about building and maintaining  strong relationships which see people through everything that happens during our increasingly busy and fast-paced lives.”

There is the problem that these services need better advertising strategies behind them and better signposting so that more couples are aware of them. The article also states that once couples’ already used the services they were more likely to be able to access relationship support in the future.

Therefore, it seems that relationship counselling and educational preparation courses should be encouraged in the UK and this could then help both couples and, well the economy.