How can we help?

We offer comprehensive legal advice and representation in various areas of children’s law, including:

• Child protection: We support families and children involved in child protection proceedings, ensuring their voices are heard and their rights are upheld.
• Child contact and custody
• Financial issues relating to child maintenance payments.
• Parental responsibility
• Specific issues and prohibited steps: in certain circumstances it may be necessary for orders to be made dealing with certain aspects of a child’s upbringing; schooling, medical treatment, or issues relating to the child’s religious upbringing.
• Adoption
• Private law proceedings: We assist with issues like relocation with children, grandparent contact, and disputes between parents.
• Abduction: We can assist in cases where children have been wrongfully retained in other countries and/or abducted from the care of the parent with whom they live. It is vital that if you are concerned that your child may be abducted take legal advice as quickly as possible to put in place the appropriate safeguards.

Child Maintenance

The issue of child maintenance is typically one of the foremost concerns during any divorce or separation process. But what is it exactly? What legal rights and responsibilities are involved? Who should pay it and how much should they pay? What happens if payments aren’t made? And what is the role of the Child Maintenance Service? This article aims to explain the basics of child maintenance.
 

Who has to pay child maintenance?

Firstly, all parents are required by law to contribute financially to the upkeep of their children, whether they are resident or non-resident with the child after separation or divorce. Generally, the parent who does not live with the children must pay an agreed, regular sum known as child maintenance. The amount can be agreed privately via a family arrangement or it will be calculated by the Child Maintenance Service. In some cases, a child maintenance schedule can be put in place through a court order.

What is a family arrangement?

Family-based arrangements can be reached independently between two parents without legal advice, mediation or court intervention. However, family arrangements for child maintenance are not legally binding or enforceable should the paying party default (not pay). They may be suitable in cases when parents are able to negotiate amicably and collaboratively. They are flexible and can be altered as and when situations change.

In certain cases family-based arrangements will not be suitable, especially if the paying parent is likely to default or disappear, so you should always discuss the ramifications of a family arrangement with your divorce lawyer.

What happens if we can’t agree on child maintenance?

When a family arrangement is not suitable or workable, or a non-resident parent has defaulted on the agreement, it will be necessary to use the Child Maintenance Service (CMS). This is the government body responsible for calculating and, when necessary, collecting the correct amount of child maintenance payable by parents who do not live with their children – it replaced the Child Support Agency in 2012.

It is not possible to make an application to the CMS without first discussing your situation with Child Maintenance Options, to see if you can achieve a family-based arrangement as an alternative. If a family-based arrangement is not suitable, Child Maintenance Options will explain how to apply to the CMS using the reference number they provide.

When you use the CMS service there will be various charges, although if you have experienced domestic violence these do not apply.

The CMS shares information with Her Majesty’s Revenue and Customs (HMRC) in order to find out the income of the “paying parent”, who will be contacted by the CMS as part of the process.

Payments are made to the “receiving parent”, either via “direct pay” (for situations in which both parents agree on how and when the money should be paid) or via “collect and pay” (for situations in which there may be some disagreement). It should be noted that in cases of “collect and pay” the paying parent must pay an additional 20 per cent of the calculated child maintenance.

If payments are not made on time or the paying parent refuses to pay, the CMS has powers to enforce payments.

How is child maintenance calculated?

The CMS calculates child maintenance based on the paying parent’s gross income, including pension payments and all other taxable income. This means that interest and dividends from assets, savings, property, as well as investment and rental income (known as unearned taxable income) are excluded from initial calculations; however, these can be taken into account on request.

The amount of child maintenance to be paid will depend on the level of income of the paying parent. Different rates will be applied as follows:

• Default rate: When income is unknown a sum of £38 for one child, £51 for two children or £61 for three or more children will be payable.
• Nil rate: This means that the parent has nothing to pay – for example, because they are under 16, or under 19 and in full-time non-tertiary education, or they earn less than £7 a week.
• Flat-rate: When a parent has an income of less than £100 a week or claims certain benefits they will be expected to contribute £7 per week.
• Reduced rate: The paying parent’s gross income is between £100.01 and £199.99 a week. The amount payable will be calculated according to the amount of earnings and other factors (see below).
• Basic rate: This is calculated as a percentage of the paying parent’s gross income of between £200 and £3,000 per week and depends on other factors (see below).

The calculation also takes into account whether the paying parent pays child maintenance for other children and/or has children living with them (including the children of a new partner).

Another factor influencing the calculation is when care of the child or children is shared. For example, if the children stay with the paying parent for one night or more per week.

In cases of the basic rate, for non-resident parents with gross income of up to £800 per week, the calculation is as follows:

• 12% for one child
• 16% for two children
• 19% for three children or more

For non-resident parents with an income of between £800 and £3,000 per week, the calculation is as follows:

• 9% for one child
• 12% for two children
• 15% for three children or more

If the paying parent earns more than £3,000 per week, the parties will need to apply to the CMS so a gross weekly income calculation can be made and then they will need to apply to the family court for a child maintenance “top-up” order.

Visit the Money Advice Service website for more information.

Can the court make a decision on child maintenance?

If you are engaged in court proceedings in relation to a financial settlement on divorce or dissolution of a civil partnership and you have agreed a child maintenance payment schedule, you can apply to the court to turn this arrangement into a financial order – the court then has the power to enforce the order in the event of non-payment.

After 12 months of such an order being in place, if you no longer wish to comply, you have the option of opting out of the agreement. However, you will still be legally obliged to pay towards the upkeep of your children and you will be required to make an application to the Child Maintenance Service.

Furthermore, resident parents may be able to seek orders under the Children Act 1989 if the parent lives abroad or any of the following criteria are met:

• The non-resident parent has an income of more than £3,000 per week before income tax and national insurance
• The application is in relation to financial support for a child with specific educational needs or needs relating to a disability
• Money is being sought with the purposes of providing a home for the child

Parenting Plans

The breakdown of any relationship is likely to be difficult, but the process can be particularly emotional and contentious when children are involved.

However, by agreeing the terms of a parenting plan, divorcing and separating parties can account for their children’s needs in a working document that is flexible, adaptable and helps manage the most difficult as well as the most important aspects of the parent/child relationship.

Advantages of a Parenting Plan

For many divorcing or separating couples, sorting out the arrangements for children is the issue which is likely to cause most anxiety, emotional out-lay and acrimony. However, going straight to court in order to seek a child arrangements order is not necessarily the best action.

A family lawyer can help you understand your rights when negotiating issues relating to children and a parenting plan is a really useful place to start in agreeing how you will move forward in your relationships.

A parenting plan can:

• Help to provide stability for children
• Reduce conflict
• Show a parent’s commitment to the best interests of children
• Be flexible
• Help keep legal costs down
• Help parents avoid having to go to court over children
• Provide a reference point for the future

What Does a Parenting Plan Do?

When parents draw up a parenting plan, it will undoubtedly be linked to their needs as parents – and sometimes to other relevant parties such as grandparents – however, any successful parenting plan should always put the child or children at its core and be focused on their best interests. As such it will typically concentrate on the following practical concerns:

• Living/residency arrangements (formerly known as custody)
• Visiting arrangements (formerly known as contact)
• Communication
• Finances
• Education
• Religion
• Health and wellbeing
• Parental roles and responsibilities

A parenting plan which includes the above can be useful if the parents wish to seek a child arrangements order as it can help when completing a C100 application and this will demonstrate to The Court that the parents have thought reasonably about the best interests of the children.

How to Approach a Parenting Plan

As anyone who has ever experienced the breakdown of a marriage or long-term relationship can attest, it is easy to let stress and emotions cloud your thinking as you try to split your lives.

When preparing to make a parenting plan, you should take time to reflect on your priorities and those of the child or children. You are one of two parents – both of whom have equal rights under the law – so it is inevitable that you will not be able to have everything your own way. Focus on the things you care most about – for example, birthdays, Christmas and school holidays – and prioritise them in order of importance to you. This ensures that you only ever expend time and energy on the things that matter most, rather than finding yourself locked into a cycle of argument for argument’s sake about who has the children on Pancake Day.

Listen with Interest

It is undoubtedly in your interests to listen to the interests of your ex-partner. This may be difficult at times, but if you can listen impartially, you should hopefully both be able to process your former partner’s requests and understand how they could fit in with your own needs.

At the earliest stage of negotiating a parenting plan, you don’t have to make a commitment; simply take stock of what has been said and work out what it may mean for any future agreement.

Be Specific

Sometimes, amongst all the angst, hurt and recrimination of relationship breakdown, it can be easy to become bogged down in emotions. However, the reality is that child arrangements are practical matters that must be sorted out.

As such, you should be clear and specific when talking about dates, events and practical arrangements. It is very hard to achieve your aims unless they are clearly defined. As such specificity is everything: if you want your child to be with you over the summer holidays, be specific about the dates – this gives you a clear position to work from and a definitive point for both parties to work from.

The Tactical Concession

It may sound like an overtly political move, but there is much to be said for conceding something in order to get something else back. By being prepared to make concessions on some of your former partner’s points and requests, you will hopefully see a similar response on the part of your ex-partner. After all, compromise is at the heart of any successful agreement, so if you are prepared to be flexible, then it could help smooth the process.

Child Abduction

Having your child taken away from their home or out of the country without your consent or knowledge is a distressing experience – it is also illegal as it breaks British law and contravenes a number of international conventions. However, there are steps you can take to attempt to enforce your rights, particularly if the jurisdiction your child has been removed to is signatory to The Hague Convention on International Child Abduction. For information about how we may be able to help, contact Wellers child abduction lawyers today.
 

Child Abduction Act 1984

The Child Abduction Act 1984, relates to England, Wales and Scotland. Under Part I Offences (relating to England and Wales) it states the following:

“A person connected with a child under the age of 16 commits an offence if he takes or sends a child outside of the United Kingdom without the appropriate consent.”

Furthermore, under the Part I terms of the Act it is a criminal offence for anyone, including a parent, to take a child out of the UK without, when relevant, the consent of the following:

• The child’s other parent
• The child’s guardian
• Any person with a residence order for the child
• The Local Authority
• The Family Proceedings Court

When parents separate or divorce, sometimes one parent will wish to move their children to a new location, however they must have consent from the other parent before doing so, even if they have been granted a residence order.

Preventing Child Abduction

If you have any reason to suspect that your child is at risk of being abducted by a former spouse, partner or other guardian or family member, it is essential that you seek legal advice from specialist family law solicitors as soon as possible to prevent this from happening.

There are ways to pre-empt an abduction attempt. These include the following:

• A Prohibited Steps Order
• A Child Arrangements Order
• A Specific Issues Order
• Habitual residence
• Making a child a ward of the court
• Contacting police
• Seizure of any passports and travel documents
• Alerting the passport office to prevent it from issuing the child with a passport
• Making contact with any relevant embassy to ensure that any non-British or dual-national child is not taken from the UK
• Port alert

Furthermore, it is important that you speak with a family law and child abduction specialist as soon as possible in order to make any necessary application to the court. In the case of an emergency, it may be possible to do this outside of business hours.

If your Child has Already Been Abducted

If your child has been removed from jurisdiction without your knowledge or consent, whether they remain in the UK or have been taken out of the country, it is a serious crime and is covered both domestically by the Child Abduction Act, and internationally by The Hague Convention on International Child Abduction and The European Convention.

It is essential that you take prompt action to enable the repatriation of your child; a family lawyer in the UK can begin this process by making a request through the formal channels.

Furthermore, child abduction lawyers may be able to assist with the following:

• Liaison with government, embassies, courts and lawyers abroad
• Seeking a court order demanding the child’s return
• The disclosure of information and records in order to help locate the child
• Contacting the police and using the Child Rescue Alert Scheme (in cases where the child is considered to be at serious threat of harm)

Wellers Law Group Family Law Solicitors for Child Abduction Cases

If your child has been abducted by an ex-partner or family member it is essential that you take action promptly. The 1980 Hague Convention on Child Abduction stipulates that you must apply within one year of the abduction. If your child has been abducted to a country that is signatory to The European Union Brussels II legislation, the application may be resolved within six weeks of submission.

In the event that your child has been abducted to a jurisdiction not covered by either of these agreements, the situation may be more difficult, although it may still be possible to apply for your child’s return using the laws of the country concerned.