You may not have noticed amidst the horsemeat hysteria and gay marriage news – but the Children and Families Bill was published this week. I haven’t had time to do more than glance at the Bill, but it looks more or less as we expected it to. The Bill will introduce a presumption of parental involvement, cap care proceedings at 26 weeks, put restrictions on the use of experts on a statutory footing and abolish residence orders in favour of child arrangements orders (although child arrangements orders include those which say where a child will live which is a residence order in all but name).
Having read a little bit about the rather unpopular bedroom tax this week I was struck by the way that the approach of two different government policies in separate areas appear to be in tension with one another. There is lots of criticism of the bedroom tax, but I’m interested in the impact on separated parents and their children (and on foster carers although I don’t deal with that here).
The C &F Bill is borne of an aspiration to ensure both parents are involved in a child’s life (this blog post is not the place to argue whether it will achieve that). From what I can tell the bedroom tax may well make it less economically viable for a separated parent who is not the main carer (by which in this context I mean less than 50% of the time) and who is living in social housing to have overnight contact or shared care. The difficulty already exists for parents in private accommodation who are in receipt of housing benefit because of the way that is worked out based on “need”, but the bedroom tax will mean that some parents in social housing who currently have a spare room that their children stay in may find it very difficult to continue in that accommodation, and by extension to develop or maintain extensive staying contact or shared care. In short separated parents in such accommodation will be treated as over-housed and taxed on the bedroom the kids stay in.
The benefits rules operate on a binary basis, they don’t fit well with shared care or flexible arrangements – when it comes to child benefit, child tax credits and no doubt other benefits, only one parent can be the primary carer, and from that entitlement flows. Some parents in shared care arrangements agree to apportion the child related benefits between them, but this is of course only helpful where there is goodwill between parents. So one can envisage cases where parents situations are polarised – at one end the resident parent is in receipt of child benefit, child tax credit, full housing benefit with no bedroom tax, child support (not significantly reduced by overnight stays) and has accommodation adequate for self and children, whilst the non resident parent is unable to secure or to maintain accommodation large enough for anything more than occasional overnights on a put up bed or sofa, and is liable for child support without reduction based on overnight stays (probably theoretical rather than actual as most HB recipients will be paying minimal CM). And of course if you are a dad stuck in a pokey 1 bed flat the reality is that you need to take the kids out and that costs money (or careful planning and identification of free or cheap activities). The alternative for the non resident parent who wishes to achieve or continue a shared care arrangement involving substantial periods in his home is to somehow absorb the bedroom tax in order to obtain or maintain suitable accommodation, but then he is left with the cost burden of maintaining and entertaining the child whilst in his care with no recognition or support from the state reflected in his benefits. OR….And this is what worries me – the other alternative is to go for broke and say “Well if I want a really meaningful relationship with my children I’ll have to go for sole majority care”.
Of course this rigidity in the benefits system and the mismatch with real life and the flexible approach in the Children Act is not new, but the possible knock on effect of the bedroom tax is an illustration of how there are multiple factors at play when we think about how we make aspirations for the full involvement of both parents in a child’s life a reality rather than a promise.
It is not inconceivable to suppose that for some families where it might otherwise be entirely workable and suitable, shared residence will not be economically feasible – and that this could lead to litigated residence disputes because the benefits system has forced the parties into a winner takes all mentality. It’s not uncommon to hear parents complaining that “s/he only wants residence for the benefits or to get a property” or “he only wants overnights so he can reduce his CSA payments” (often in high conflict cases this is preceded by the startling assertion that “s/he doesn’t love them at all” ). More often than not such assertions are the conflict talking, and of course people’s motivations are quite complex and multilayered. But for parents who desperately want to be able to provide for their children, to be able to spend time with their children, to regularly put their kids to bed and to eat breakfast with their children – the economics of it are important.
Of course the scenario I’m describing won’t apply in all cases, and probably not in many. But it does feel odd that whilst the Government is saying it wants both parents to be fully involved in a child’s life, which proposes to blur the current distinction between residence and contact by abolishing the labels in a drive to get parties to focus on the actual arrangements that would best suit the child in question; that things like the bedroom tax may in effect make it harder for the court to make orders that fall in the middle of that spectrum between residence and contact, by which I mean arrangements involving a substantial amount of overnight stays with the “other” parent that might currently be called shared residence. I just wonder if there might be a few more families for whom some of the options on the menu are greyed out.
Footnote : yes, I’ve referred to the non-resident parent as “he” throughout most of this post. In reality we are most often talking about dads, but of course not always.
I have been in this situation for the last 9 months in private rented accommodation. I don’t like the term entitled (although it’s the accepted term it carries some negative connotations in the context of benefits) but I am not entitled to a room for my son to stay in, even though I was until recently having my son for 50% of the time. My ex partner opposes all contact and I can guarantee that if I had only a sofa bed for my child to sleep on then it would be an issue in the litigation. I am extremely fortunate to have a supportive family who have helped subsidise my accommodation where it’s been needed.
It is my view that the government ought to be working towards enabling some form of sharing of the child benefit; as you correctly put it all benefit entitlement flows from who receives the child benefit.
I had heard that the CSA were to remove the requirement to pay child benefit in cases of 50/50 shared care but that was supposed to come into effect in October 2012 and the working out maintenance booklet on the CSA web site hasn’t been updated so I can only assume that the planned change has not come into force yet. Presently the system is a reduction of the calculated maintenance by 50% + £7 (the £7 is fixed and apparently arbitrary) so at present the ‘non-resident parent’ has to pay maintenance to the ‘parent with care’ even where time is split exactly equally. When the benefits and tax credits are taken into account it wouldn’t be surprising to see one parent significantly poorer than the other and still obligated to pay maintenance.
I’d be interested to know whether the bedroom tax will also affect people in social housing but who are not in receipt of housing benefit, or whether that is already taken into consideration in the rent that they pay.
One thing I am certain of is that this will undoubtedly increase the number of children spending at least part of their lives in relative poverty, perhaps even absolute poverty.
I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.
This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).
I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.
Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).
There have been well-publicised cases in which even the judiciary itself has recognised this shortcoming in the law, but, sadly, has been unable or unwilling to act.
Coleridge J has spoken of being powerless to prevent good fathers from being excluded from their children’s lives.
In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.
Regardless of his concerns, however, Wall could do nothing but apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to go against a legal precedent which manifestly failed to serve the best interests of the children in that case.
With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.
It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!
I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.
A recognition in law of the vital importance of a father in the optimal development of his child has been shamefully long in coming.
Regards
Bruno D’Itri
Interesting question Bruno regarding the impact the new presumption may have on relocation disputes…
Intended or unintended consequences??
Conspiracy or cock-up??
Lack of joined up thinking??
David Cameron: ‘I want a family test applied to all domestic policy’
15-Aug-2011
The Prime Minister’s statement today: “from here on I want a family test applied to all domestic policy. If it hurts families, if it undermines commitment, if it tramples over the values that keeps people together, or stops families from being together, then we shouldn’t do it.”
What happened David????
This is effectively a poll tax for the poor via the back door.
It may have made some kind of twisted sense if there were the available social housing to downgrade to. There isn’t, and there never will be.
What happens when poor people already at the bottom of the ladder are unable to pay their rent in full?
Much better to tax the poor at the bottom who have spare space than to make the corporations pay their taxes, I presume.
There is a very popular cause here for everybody to sign here:
http://www.causes.com/actions/1712819-stop-the-vacant-bedroom-charges?recruiter_id=124563124
Sign it, and get your frinds, and enemies, to sign it too.
How do you do, familoo?
The Children Act of 1989 required the judiciary to serve the paramount interests of the child.
Surely no one can disagree with this fundamental principle.
The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960?s and 70?s. It has done so because of its rigid adherence to the system of ‘legal precedent’.
Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.
If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.
A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by refusing her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.
Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.
The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.
Regards,
Bruno D’Itri
The truth is that cases such as Payne represent the surrender of the courts to emotional blackmail. They need to be overruled or reversed by statute.
How do you define a bedroom legally?
I think that lies in the discretion of the individual Local Authority (eek) although there are definitions in other legislation for different purposes (H&S etc), which no doubt at some stage someone will try and argue should be applied. Bet you’ll find the answer on Nearly Legal….
Taken from housing.org.uk (spam filter won’t let me put in the full link, but I googled “bedroom tax” and it’s the first result for me.)
“Do the regulations define a bedroom?
No. The Government’s view is that it is for landlords to specify the size of the property and this ought to match what is on any tenancy agreement and reflect the level of rent charged. The bedroom tax will not take account of whether a room is a single or a double bedroom. A room either is a bedroom or is not a bedroom.”
So I imagine where the landlord is the local authority or a housing association they will get to say define many bedrooms it is when they “market” the property and on the tenancy agreement.
The ‘Children and Families Bill’ was debated in the House of Commons yesterday.
A very interesting watch it was!
Tim Loughton spoke passionately and with much insight about the very real problems many non-resident parents (usually fathers) face in trying to maintain meaningful contact with their children. He was particularly scathing of resident parents who use the ‘system’ to exclude non-resident parents, and of the ‘system’ itself which fails to deter or prevent such abhorrent behaviour.
In contrast, Sir Alan Beith appeared completely ignorant of these realities. He maintained that no shared parenting amendment was necessary.
Beith suggested that the Paramountcy Principle would be undermined by the proposed shared parenting amendment.
Loughton made it very clear to Beith that the proposed amendment plainly specifies that the paramountcy principle remains ‘paramount’ and that contact would not be ordered by the court if there was a verifiable risk of harm to the child. This plain explanation did not seem to satisfy Beith.
Loughton recounted the fact that, of 3 million family breakdowns in one particular year, 1 million fathers lost all contact with their children. Plainly, this cannot be good for the welfare of those hapless children.
Loughton explained that the shared parenting amendment was designed to serve the Right of a child to be parented by both its parents.
In contract, Beith intimated that the amendment served the Rights of Parents rather than those of their children.
Beith suggested that the amendment would cause non-resident parents to expect 50% parenting time with their children.
Loughton made clear that the amendment was qualitative rather than quantitative in its design, and that it was plainly non-prescriptive regarding parenting time.
Beith stated that the popular press was touting the idea of 50/50 time, and that non-resident parents would therefore arrive at the same understanding.
Loughton stated that the misrepresentation of the amendment by the polular press would not prevent the Government from going ahead in the interests of child welfare.
As the new legislation is enacted, the press and the general public will need to be educated as to exactly what it entails and what parenting arrangements can be expected by separating parents.
Over all, I’d say Loughton won the argument.
Beith’s position remains very closely wedded to that of the Law Society.
It is no too difficult to speculate as to why the Law Society favours the current status quo and why it is against shared parenting legislation. Plainly, there are considerable vested financial interests in the continuation of non-resident parents going to court to re-establish or enforce contact with their children.
Precisely why Sir Alan Beith follows the Law Society’s stance requires a little more fanciful speculation, perhaps concerning the methodology and efficacy of lobbying by special interest groups!
Regards
Bruno D’Itri
Thanks – haven’t had time to listen myself. will look it up on hansard when i get a mo.
Your readers can find it here:
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130225/debtext/130225-0002.htm#13022511000001
Regards
Bruno D’Itri
Thanks. 🙂
Hi, I am currently going through the stages of having my kids on a shared basis, it has taken over 18 months from when I first contacted a lawyer. At this moment in time I have my kids 6 nights out of 14.
The main issue I have is that my local council(East lothian) don’t take into account that I have my children practically 3 nights per week. I am currently staying in a 2 bed private let(partner and I both work) with my partner and my kids when I have contact with them.
My council have told me that if I were to receive a council house I would only be “entitled” to a 1 bedroom property, this is purely based on the fact that I don’t receive child benefit so the kids aren’t deemed to be staying with me at all.
The rules regarding all this are ridiculous, are myself and my partner meant to sleep on the sofa when my kids stay or vice versa?
The whole thing regarding child benefit is totally breaking down families everywhere. If myself and my partner didn’t both work then we wouldn’t be able to afford the two bedroom house based on the local housing alliwance therefore would lose out on the precious time with my children. My eldest child is 10(male) and my youngest 6(female).
Regards
Marko G
Hi Mark, The rules are a bit crackers as far as housing is concerned. I don’t know specifically about the system in Scotland but what you say sounds pretty much the same situation as parents here are facing. The House of Lords ruled a few years ago (in essence) that there was no entitlement to two homes from the state in order to facilitate shared residence (can’t immediately remember the name of the case). It does have unfair or unworkable results in some cases.