In the case of “Special Expenses” the CMS (Child Maintenance Service) can take account of specified payments to reduce the CMS calculation. This has to be done by applying for a variation of the calculation. It can take a long time for that to be resolved. Child maintenance regulations can be very complicated and even many lawyers find the area difficult so it can be a problem finding specialist advice.

In this case the couple had a joint mortgage whilst living together, had a child and later separated. The father left the home leaving the other party and child living there. The CMS determined that the non-resident parent should pay child support but later varied that decision downwards to take into account the mortgage payments which he continued to pay. This was because of reg 65 of the CSMC Regs 2012.

The tribunal found that regulation 65 applied to mortgage payments on a property jointly owned by the non-resident parent, as the payments met the criteria of prior joint debts benefitting the parent with care and child.

The resident parent appealed that decision but lost.

UA-2023-001189-CSM [2024] UKUT 259 (AAC)

Other types of Special Expenses leading to reductions in child maintenance may arise from the CMS taking account of the following paying parent’s expenses:(§2(2) of Schedule 4B to the Child Support Act 1991):

(a) costs of maintaining contact with the qualifying child(ren);
(b) costs of a long-term illness or disability of a ‘relevant other child’ (namely, a child who lives with the paying parent);
(c) previous debts, incurred before the couple separated;
(d) boarding school fees paid for qualifying child(ren);
(e) costs of repaying a mortgage on the home of the parent with care and the qualifying child(ren).

In my April 2024 blog, I reported on new court rules encouraging those involved in family proceedings to use non-court dispute resolution (NCDR), like mediation, instead of using the court to resolve their disputes.

In a case in May 2024, concerning finances in divorce, NA v LA , Nicholas Allen KC stopped the case to allow NCDR to take place, even though the wife opposed that step. The judge said that in the past court rules to encourage parties to resolve their disputes outside court had been underused. Given the April 2024 rules, this case was a typical example of where the court should use its new powers. “I consider NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children”. “Both parties must keep the issue of costs and the proportionality of incurring the same very much at the forefront of their minds”.

The judge referred to the case of X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] where Gwynneth Knowles J said that those involved in family proceedings must “understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate”, and that “at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable” and that the April 2024 rules “will give an added impetus to the court’s duty in this regard”.

On 13 September 2024, the House of Commons Library published statistics for England and Wales which showed;

In 2023 1.7 million claims were received in the civil courts.
In 2021 ( the latest available total) the family courts started 266,000 cases.

Waiting times for almost all family cases were longer in 2023 than in the previous 5 years except for financial remedy cases in the Family Court.

On Monday, April 29th, 2024, significant amendments to the Family Procedure Rules have come into effect. Amongst others, these changes aim to ensure a fair and efficient resolution of family disputes by promoting alternative dispute resolution methods (NCDR), such as mediation, and reducing reliance on traditional court proceedings. Here are the key changes and their implications for those involved in family law proceedings.

1. Mediation Information and Assessment Meetings (MIAMs): These include reductions in MIAM exemptions, a definition of a MIAM, and a stronger emphasis on the court’s ability to encourage the use of non-court dispute resolution (NCDR).The importance of MIAMs in facilitating out-of-court resolutions has been underscored so as to promote a collaborative approach to resolving family disputes. So parties are encouraged to explore mediation as a first step before resorting to court litigation, encouraging a more cooperative and less adversarial approach to resolving family disputes.

2. Costs Management: In financial remedies cases, the power to ‘encourage’ NCDR is now backed by an amended rule, which will make a failure, without good reason, to engage in NCDR a reason to consider departing from the general starting point that there should be no order as to costs.

• This trend is reflected in the case law eg In X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024], Judge Knowles gave a ruling so as to ensure that those involved in family proceedings “understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate’, and to signal that ‘at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable’ and the changes to Part 3 ‘will give an added impetus to the court’s duty in this regard’.

The Family Mediation Council have said that it “welcomes these changes and is continuing to work with the Ministry of Justice, the courts, and the Family Justice Council to ensure they have the intended impact of helping as many families as possible resolve issues without turning to the court”.

The Ministry of Justice voucher scheme was due to end 31 March 2023 but has been extended to April 2025 at the same time the government issued a consultation paper (closing on 15 June 2023) on making mediation compulsory for separating couples in certain family cases but excluding those which include allegations or a history of domestic violence.

The consultation includes proposals to give courts power to order parents to make reasonable attempts to mediate and order fines “if they act unreasonably and harm a child’s well being by prolonging court proceedings”. There will also be powers to order parents to attend co-parenting classes.

“Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab MP said:
When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life. Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible.”

This initiative will build upon the existing family mediation voucher scheme introduced in 2021 to relieve the backlog in the courts due to the pandemic and years of underfunding.

The voucher scheme is accessed through accredited mediators.

https://www.gov.uk/government/news/plans-to-protect-children-under-new-mediation-reforms

On 16th January 2022 the Deputy Prime Minister Dominic announced £1.3 million additional funding for the scheme to increase the total fund to circa £3 Million.
The Family Mediation Council anticipate this will last until about the end of March 2022.

The voucher is non means tested and provides £500 towards the cost of mediation concerning child arrangements. It was introduced to help cut the court backlog due to Covid19, reduce family conflict and to encourage parents to sort their own child arrangements where safe to do so.

The government have said that the scheme has been a great success as “77 percent of cases reaching full or partial agreements away from the family courts”. The government have also explained that “further information about the scheme and how it works is provided to parties at their Mediation Information and Assessment Meeting (MIAM), which all those involved in family cases are required to attend, unless they have a valid exemption. Mediation can be undertaken by other family members, not just separating parents”.

Starting 21 March 2022, it will be illegal for anyone, including visitors, in Wales, to use any physical punishment including smacking, hitting, slapping and shaking of children. This will give children the same protection from assault as adults.

Parents will no longer be able to rely on the defence of reasonable chastisement in these circumstances.

The labour led Welsh Government has started a 6 month publicity campaign, including this video, to make the public aware of the change in the law and support services available to supplement the objective of protecting children from the harm of physical punishment.

In late March 2021 the government introduced a non means tested £500 per family voucher for family mediation for separated families who need to make arrangements for children.

£1 Million was allocated to the scheme. I am pleased to hear that the Ministry of Justice (MoJ) has made a further £800,000 available for the scheme to help separated families.

Resolving arrangements outside court is usually quicker and cheaper than through the courts. Mediation often helps families retain control of their child arrangements in communicating better to make their own decisions affecting their children and themselves to the benefit of all concerned as well as helping relieving pressure on the courts.

The scheme is administered by the Family Mediation Council (FMC) on behalf of the MoJ. Applications for the voucher, which are very quickly processed by the FMC, are made by accredited mediators on behalf of the family after the parties have attended a MIAMS meeting ( Mediation Information and Assessment Meeting) with the accredited mediator. The cost of the MIAMS is not covered by the voucher but the first £500 of the subsequent mediation costs are funded by the voucher with any additional costs being met by the parties.

As long as there are child arrangements to be made the voucher will also cover the costs of discussing financial arrangements.

I am an FMC accredited mediator (URN 0818A) and have signed up to participate in the scheme. If you would like further information please contact me using the telephone number, contact form or email address on this website.