Civil way

Seventh heaven

Cafcass is in trouble. There has been a dramatic increase in public law child work post Baby P and private law business is getting less of a look in. A huge backlog has accumulated in the preparation of reports under the Children Act 1989 (CA) s 7 and in the appointment of guardians in public law cases. Enter an agreement reached between the Family Division’s President, Cafcass and HMCS which leads to a six-month plan to take effect on 1 October 2009 and Presidential guidance.

A full s 7 report in general terms is removed from the menu. If any Cafcass report is ordered during the six months—you should be ready to convince the judge that the application really cannot be decided without some report from Cafcass—it will be issue specific and thereby completed earlier. The national expectation is that a report on the child’s wishes and feelings will require six weeks, on a single issue will require six weeks and on more than one particularised issue will require six to 12 weeks, depending on the nature and complexity of the issues to be addressed. A risk assessment under the CA s 16A will take six to eight weeks.
 

Where a report is ordered, the court will record on the face of the order the timetable for making its decisions for the child, whether the safeguarding checks are complete, whether any risk is identified and, if so, what, and the particular risk requiring investigation. Measures proposed for public law cases may involve children’s solicitors taking on case management tasks which have hitherto been regarded as functions of Cafcass.
 

Suffer children’s dads
 

In case you hadn’t noticed, we have now got a Child Maintenance and Enforcement Commission and the Child Support Agency (CSA) is part of it. And the compulsion on benefit claimants to open a case with the CSA has gone (Child Maintenance and Other Payments Act 2008 s 15 (CMAOP). From 3 August 2009 the commission has acquired meaningful enforcement powers which should get in substantially more cash and lead to increased work for long suffering district judges. CMAOP inserts ss 32A to 32F into the Child Support Act 1991 and the Child Support Collection and Enforcement (DOs) Regulations 2009 SI 2009/1815 finish off the bother.

Deduction orders (DOs) are what it’s all about—not to be confused with pre-existing deduction from earnings orders. DOs will be made by the commission and not a court. First, we have regular DOs from a bank, building society or other deposit taker with whom the person liable has an account to cover arrears or ongoing maintenance or both. This is akin to an attachment of earnings order made by a court except it’s not earnings that will be attached. Indeed, the device will be utilised where the person liable is self-employed or changes jobs frequently. He will preserve at least 60% of his net weekly income after maintenance and an account used by the person liable wholly or partly for business will be protected except where he is a sole trader. The deposit taker may charge up to £10 per deduction.
 

And, second, we have lump sum DOs to extract arrears out of a specific account and akin to a third party debt or (in matrimonial parlance) a garnishee order. The deposit holder may charge up to £55 towards administration costs.
 

Both of the new orders may be appealed to a county court district judge with a second tier appeal to a circuit judge as can a decision on review by the commission of a regular DO. The maintenance calculation cannot be challenged on appeal and the legislation does not spell out any appeal grounds. The commission suggest as grounds of appeal against either DO that the person liable actually is not liable to pay maintenance or the DO has been made for the wrong amount and, against a decision on review, that there is no current maintenance calculation and the maximum deduction rate has been calculated based on the most recent information and that there has been a change in net weekly income. A joint account is as vulnerable as a sole account held by the person liable but the other account holder is given plenty to shout about.
 

The Family Proceedings (Amendment) (No 3) Rules 2009 SI 2009/2027 cater for the appeals procedural machinery. The appellant’s notice must be in form N161. The documents to be filed and served by the appellant and the information to be provided by the commission on appeal are summarised in a President’s Practice Direction which came into force on 17 August 2009.

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