Why is there no provision for true 50/50

LizzieS_2

marksoton wrote: »

But we have seen this before Lizzie and the courts are very reluctant to get involved. Their de facto position is to defer to the CSA. This generally puts the male straight back to square one and whoever is in receipt of the CB takes the spoils.

Time and again on these boards there has been cases of the CSA ignoring shared residence and contact orders.

The reality is there is no proper provision for true shared care.

Perhaps the other party to the residence should quote this from the 1991 act and use the RO as ability to be assessed as a pwc?
3 (5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

Tax credits are not dependent upon CB and it clearly states this in DM guide: http://www.hmrc.gov.uk/manuals/ntcmanual/applica_appl_wl/ntc0050230.htm

marksoton

LizzieS wrote: »

Perhaps the other party to the residence should quote this from the 1991 act and use the RO as ability to be assessed as a pwc?
3 (5) For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

Tax credits are not dependent upon CB and it clearly states this in DM guide: http://www.hmrc.gov.uk/manuals/ntcmanual/applica_appl_wl/ntc0050230.htm

I don't doubt the validity of your point Lizzie. But the CSA have been able to superceed virtually any legislation they want. And that includes battles with other government departments !

One NRP fighting this point would in all likelyhood lose. It is unfortunate that within the lower judiciary and greater public the CSA are seen only as a force for good.

They may be perceived as incompetent, but they are also perceived as only fighting for a child's best interests.Only those of us who have dealt with them know different.

speedster

there is another european angle in question now.

little bit too early to tell, but..................

marshmallows

i agree ctc isnt based on child benefit, which i do find a bit strange because you have to prove you are parent with main care of the child to get awarded the child benefit - well my husband certainly had to

also tax credits are very hit and miss because that link i just read, where is the dr located etc, the school, who is main contact etc well my husband is this for both the kids yet the tax credits refused his claim because the x is still claiming for both kids
also the x did tell us someone at the hmrc told her when she lost one of the child benefits she was no longer main carer for that child so isnt entitled to the tax credits

as i said very hit and miss

LizzieS_2

Mark I’m not disputing it is a difficult situation at all.
I’m going to try explaining my understanding of why so much seems to go wrong. For ease, I’m going to use the main stereotypes – woman has child more.

Contact
CSA receive mans application for reduction for overnight stays on 1 December and he states 156 nights per year, woman says it is only 52 nights per year and contact order says 104 nights (well that is when the csa finally get an annual picture for those who have more overnights during school holidays and less in term-time).

The effective date of the calculation is 1 December 2009, but which of the 3 is right and how do they find out who is telling the truth? In the absence of agreement, the obvious answer is to go by an official Contact Order (assuming there is enough detail there), but that will not appease either party. If the csa decide to use the Contact Order then either parent can appeal within 28 days – this seems the most logic method to use, but it is not without faults as the 28 day deadline doesn’t give enough scope for either parent to prove their case in court.

By asking both parents to keep diaries they are effectively trying to give both parents the same information that a court would (court would require proof over a period of time to create or amend a Contact Order to reflect what really is happening, or they would make a decision on what they think is fair), whilst also keeping the effective date as 1 December 2009.
I would guess a lot do not have Contact Orders and just went by private arrangements, so these are even harder to decide.

Not sure whether csa reject at first stage and let it go to appeal (depends if the staff at that level are paid to make that kind of decisions in disputes). It does seem likely that they use the appeal stage if only to see how many are willing to take their cause further and within the time limits (if you are being honest then you will usually appeal).

Whether a decision is made at the first stage or at various appeals stages (after delays for diaries), one of the biggest considerations will be what the parents have done to legalise their stance, ie have they applied for a Contact Order or asked for a revised one to be made during the time since 1 December, and I would guess without an old Contact Order then any old one would be the final decision, and without a Contact Order at all then the pwc will be believed.

Also (not shown from example I gave) in the instance where overnights are less than the Contact Order due to pwc withholding contact, has there been any effort to apply for enforcement of the actual Contact Order. Finally another major problem is a Contact Order may well say 104 nights , but the csa may wonder why it was produced months or even years after being issued, when the man has happily not questioned not having had a reduction in the past when he should have had.

Residence
The majority is as above so I won’t repeat.

Where there is shared care it should be backed up by a Residency Order.
One of the obvious flaws is applying as a pwc for a different number of nights to that used in the other “pwc” assessment – if the nights are wrong then there should be an application to change those to match too.
Contact Orders do not automatically give a right to be classed as a pwc, whereas Residency Orders do.

The csa can have a pwc for say 4 nights and another for 3 nights – in fact Cmec legislation is going to give the right to offset one set of maintenance against the other.

If the csa refuse point blank to accept an application from the man as pwc, that letter should be addressed to a court claim under section 8 of the Children’s Act – if the court reject on the basis it is csa then at least you have grounds for the effective being much earlier than it eventually will be (although I guess that can be achieved through the csa appeals too), or if it is submitted with an application for a RO then the court can do something to cover the interim period between application and the first date that the csa can take jurisdiction.

Kimitatsu

Lizzie (do you ever sleep lol!)

I dont doubt that the law as you have quoted it is more than correct this issue comes in two parts.

Firstly is the NRP being told any of this information - it certainly does not come from the CSA, and having been there myself, many of the staff are unaware of it. I was told on several occassions by the CSA that I could appeal but the majority of appeals fail, so actually I would need to go to tribunal but thats a different story.

The second issue is in the courts enforcing a contact order! We have a contact order in place to see my partners two children, 12 months of going to court and an enormous legal bill later contact has still not been enforced correctly. The PWC made arrangements, and then took the children on holiday, they were suddenly "busy", they were not in etc etc. Because the order was not enforced the PWC could legitimately claim that the NRP had not fulfilled the contact order, resulting in the CSA coming down on the side of the PWC. That is not the fault of the CSA more an issue with the courts but the two are inherently linked.

The issues with shared care are that there are legal frameworks to allow this to happen but for much of the time they are shrouded in mystery and are not readily accessible to the parents. It is only when the courts use the powers they have to enforce the orders that any of this will change and the 30% of children who lose contact with one parent after a relationship breakdown will change.

LizzieS_2

It’s a tough one Kim, most seems to be that neither the csa nor the courts are sure who is responsible (I go with the courts more).

No need to tell me about the costs of going to court – we’ve been there to get contact ourselves. I understand the claims regularly made on these boards that the court is always too lenient to pwc as certain incidents initially made me feel the same, but in the end when I reflected on it the court was simply trying to move on to making contact rather than look back at the past (pity they don’t consider the legal bill to put up with those instances though).
I was hoping Kelloggs would enlighten us as to what the csa procedures are.

For the Contact Order it appears they accept the diaries above the Order which is strange (if an Order is wrong, whichever party is affected would be quick to get it changed so realistically to me this is really the fairest one to use?).

The games started in your case when the diaries were being kept. Apart from the holiday and any possible sickness (covered by doctors records), the rest was unacceptable and to me the Order should have been used.
I appreciate the costs of court in some situations may be more than the reduction that there should be in csa payments – a lot of factors to weigh up which are individual to each type of case.

It certainly looks as if the csa are pushing the buck to the courts for contact.

I suspect many do stop at the csa response rather than go to court, for numerous personal reasons.

In your own situation, you do have a case for the court – the diaries are evidence of the Contact Order being ignored (not sure of the actual piece of legislation itself, but the courts do have the power to order disclosure of documents from a third party – her copy of the diary can be disclosed to court by the csa). I have put below an updated version of the Children’s Act (look at the various one under number 11). For your own situation, the court can order recompense under 11O as you have been disadvantaged by the actions of the pwc in the csa situation.
Not related directly to this thread, the other main point of improvements to the Children’s Act is the introduction of a remedy using forced unpaid work – for those on benefits the legal aid bill could not be increased to cover the other parties costs so in effect it did let a lot of pwcs off remedies for inappropriate actions.

http://www.statutelaw.gov.uk

Select A to Z, letter C, Children's Act 1989 is on the third page (for some strange reason it will not copy an exact link to the page directly).

speedster

also an issue is the fact that the csa actively promote contact blocking and worse still, reward it.

that is a fact.

my personnal experience coincides with this fact, as my ex was TOLD by her caseworker to reduce contact from 160 nights a year otherwise her money would halve.

so guess what?? upsetting our child to get more money, with the blessing of this "organisation".

we were both given a calendar to circle the dates of contact. she lied on that and even when i sent them concrete proof of her lies in the form of a letter to my solicitor from HER, they still believed her.

hence, my stance now.

when they play fair, so will i.

until then, game on.