June 2005

Bulletin No 86

Butterworths Family and Child Law Bulletin

Fam LS 2005.86

April/May 2005

Bulletin Editor:- Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton
Butterworths Family and Child Law Bulletin provides an immediate updating service for the main text of Butterworths Family Law Service and Clarke Hall and Morrison on Children. The Bulletin is published every month and sent to subscribers to those publications.

References to BFLS and CHM above each case are to the relevant paragraphs in Butterworths Family Law Service and Clarke Hall and Morrison on Children.

Private law

Case should be heard despite mother’s illness

Blunkett v Quinn [2005] 1 FCR 103

Blunkett v Quinn [2005] 1 FCR 103 concerned an appeal by the mother of the child against the refusal of the district judge to adjourn proceedings. Her application for the adjournment was based on the fact that she was unwell and pregnant. Ryder J found that it would not breach her rights to a fair trial to proceed with the case. She seemed to be able to give instructions. Delay would have damaged the relationship between David Blunkett and the child. There was no guarantee that the health issues would soon be resolved (they may have been induced by the stress of the litigation and could recur when it was resumed). It would be an abrogation of the court’s responsibility for the rights of the child to fail to advance the resolution of the issues for four months. There should be active case management to resolve the paternity issues in the case.

Comment: This much-discussed case did not, as journalists seem to have suggested, concern an application for DNA testing or for residence by the former Home Secretary, David Blunkett. Ryder J gave the judgment in public so that false impressions could be corrected. He found that this was the most proportionate option available, and reduced the interference into the private lives of the parties by hearing the appeal in private and excluding unnecessary personal material from the judgment. He was careful to stress that the case had not in any way been fast tracked because the protagonists were in the public eye.

Wife’s move supported

Re S (children: application for removal from jurisdiction) [2004] EWCA Civ 1724, [2005] 1 FCR 471

In Re S (children: application for removal from jurisdiction) [2004] EWCA Civ 1724, [2005] 1 FCR 471 a mother sought permission to relocate with the children from Halifax, where she had no ties, to Spain, where her mother and brother were already well established. She planned to invest in property there and had arranged private education for the two girls, funded partly by herself and partly by her mother. She offered the father contact over long weekends and the school holidays. The father currently worked as a consultant for a German bank, commuting weekly to Germany at the firm’s expense and also travelling extensively abroad. He attacked the mother’s plans as unrealistic and impugned her motive, saying that contact would suffer. He did not appear to the recorder as having researched the possibilities of contact. The recorder refused the mother permission to relocate. He noted that the move to Spain was a matter of choice not necessity, contrasting this with earlier cases. The Court of Appeal held that this was a misdirection. The mother had a perfectly natural desire after the breakdown of a short marriage to rejoin her own family. The unusual factor of the case was that her own family had themselves relocated to Spain. Even if it had been merely a matter of lifestyle choice, the principles set out in Payne v Payne [2001] EWCA Civ 166 would still apply. There were some aspects of the case requiring further comment. The wife’s case did not set out the impact upon her of a refusal to permit her to go abroad, which would normally be expected. It could be inferred that the isolation she experienced in Halifax would be damaging to her and her relationship with the children. The father’s commitment to contact was less than in some cases. He had already established a pattern of contact on alternate weekends and had only sought holiday contact once the case was started. He seemed not to have contemplated altering the pattern of his work life so as to facilitate contact despite emphasising its importance to his case. The recorder had misdirected himself as to the proper legal test. The Court of Appeal granted the mother permission to relocate, her departure to be deferred until arrangements for contact had been defined either by agreement or by further order of the court.

Comment: The Court of Appeal reiterated the principle, set out in Payne v Payne, that the courts should not obstruct reasonable plans for parents with resident to move their lives forward. There was an understandable rationale behind the mother’s relocation plans and they had been thought through and planned. The father’s objections were not based on a similar degree of planning and the Court of Appeal clearly felt some concern that he was raising the difficulties of contact as much to disrupt the mother’s plans as to further the interests of the children. It drew attention to the relative lack of interest that he had previously shown. The recorder’s suggestion that the mother’s decision to move abroad was essentially a lifestyle choice – a preference rather than a practical necessity – was seen as overplayed. The legal questions to be asked remained the same. However, it is possibly still the case that were the move to have been no more than convenience, that the courts would have been more reluctant to sanction it. The Court of Appeal noted that the relocation to Spain was not arbitrary and that staying in Halifax would have had an adverse effect on the mother. That these were relevant factors suggests that the courts would be reluctant to permit contact between children and their non-residential parents to be disrupted on mere whim.

Public authorities’ liability

Liability for failing to diagnose special needs accurately

Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 FCR 554

In Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 FCR 554 the Court of Appeal considered the law on liability in tort of education authorities for failure to secure the welfare of children with special educational needs. The claimant contended that the authority had failed to reassess and amend his statement of needs when a school placement broke down in 1988 and in leaving him at the school to which he was sent on the basis of the unamended statement when it became apparent that it was not going well (1991–1993). It was noted that there was no action for compensation for breach of statutory duty under the Education Act 1981 (now the Education Act 1993) because that had not been the intention of Parliament (see Phelps v London Borough of Hillingdon, Anderton v Clwyd CC, Jarvis v Hampshire CC [2000] 3 FCR 102). It was possible for an independent action to lie at common law for negligence. The court had to consider first whether the issue was justiciable. This matter was not determined simply by asking whether the decisions in question involved the exercise of discretion. Decisions would not normally be justiciable where competing public interests had to be weighed against each other by a public body to whom the responsibility for that balance had been entrusted by Parliament (Barrett v Enfield London Borough Council [1999] 2 FCR 434) but such cases would be relatively rare and this case was not in that category. Nor would mere failure to perform a statutory duty give rise to a common law negligence claim (Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15). If decisions were justiciable then the court would need to consider whether damage was reasonably foreseeable, proximity between the claimant and the authority, and whether it was just and reasonable to impose a duty of care. Most cases involving the management of education or care responsibilities would turn on potential vicarious liability (see Barrett and Phelps). Where a discretion was exercised that was heavily influenced by policy then it would be unlikely to be negligent unless it was a decision that no reasonable authority could have made. Where, however, it involved the exercise of professional skill in relation to an individual child, then the court would judge negligence against the practices accepted as proper by a responsible body of professional opinion (the test set out in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118). If a member of the authority’s staff was negligent, then the authority could be vicariously liable. There was no blanket immunity for teachers on policy grounds. For the purposes of the liability rules, education officers were professionals for whom on the authority could be vicariously liable. The court had, therefore, to consider the substance of the decisions made.

Taxation

(Notes contributed by Philip Wylie, tax editor of BFLS)

The following is a summary of the principal changes affecting taxation of the family which were either announced or confirmed in the Budget on 16 March 2005.

Income Tax

Rates for 2004/05 and 2005/06

2004/05

starting rate - 10% on the first £2,020 of taxable income

basic rate - 22% on taxable income from £2,021 to £31,400

higher rate - 40% on taxable income over £31,400

2005/06

starting rate - 10% on the first £2,090 of taxable income

basic rate - 22% on taxable income from £2,091 to £32,400

higher rate - 40% on taxable income over £32,400

The rate of tax on dividend income plus the related tax credit is 10% for a taxpayer who is not liable to higher rate income tax, and 32.5% for a taxpayer who is. The rate of tax on certain other savings income, mainly interest, is 10% if the income is wholly within the starting rate band, 20% (rather than 22%) if the income is within the basic rate band, and 40% for a taxpayer who is liable to higher rate income tax.

For 2005/06 the trust rate of tax, payable mainly by discretionary and accumulation trusts, remains at 40%, and the Sch F (dividends) trust rate remains at 32.5%.

Personal reliefs for 2005/06 (2004/05 reliefs in brackets)

personal allowance

under 65 - £4,895 (£4,745)

65–74 - £7,090 (£6,830)

75+ - £7,220 (£6,950)

married couple’s allowance for those over 65 before 6 April 2000 (restricted to tax relief at 10%)

65–74 - £5,905 (£5,725)

75+ - £5,975 (£5,795)

minimum allowance £2,280 (£2,210)

The personal and married couple’s allowance for the over 65s are reduced by one half of excess of total income over £19,500 (£18,900 in 2004/05), but they can never be reduced below the ordinary personal allowance or the minimum married couple’s allowance.

Blind person’s allowance has been increased from £1,560 to £1,610.

Maintenance payments

For those few maintenance payments which continue to qualify for income tax relief (a pre-condition is that one spouse must have been over 65 before 6 April 2000), the maximum amount on which a 10% tax credit can be claimed is £2,280 (£2,210 in 2004/05).

Working tax credit and child tax credit

The working tax credit and child tax credit rates and thresholds for 2004/05 and 2005/06 are:

2004/05 2005/06

Working Tax Credit  

Basic element - £1,570 £1,620

Couple and lone parent element - £1,545 £1,595

30 hour element - £640 £660

Disabled worker element - £2,100 £2,165

Severe disability element - £890 £920

50+ return to work payment - (16-29 hours) £1,075 £1,110

50+ return to work payment - (30+ hours) £1,610 £1,660

Childcare element of the Working Tax Credit  

Maximum eligible cost for one child per week - £135 £175

Maximum eligible cost for two or more   

children per week £200 £300

% of eligible childcare costs covered £70 £70

Child Tax Credit  

Family element - £545 £545

Family element, baby addition - £545 £545

Child element - £1,625 £1,690

Disabled child element - £2,215 £2,285

Severely disabled child element £890 £920

Tax credits income thresholds and withdrawal rates  

First income threshold £5,060 £5,220

First withdrawal rate (per cent) 37% 37%

Second income threshold £50,000  £50,000

Second withdrawal rate (per cent) 6.67% 6.67%

First threshold for those only entitled to CTC £13,480 £13,910

Income disregard £2,500 £2,500

Capital gains tax

For 2005/06 the annual exemption is increased from £8,200 to £8,500. The CGT rates remain unaltered at 10%, 20%, and 40%.

Inheritance tax

The inheritance tax threshold is increased from £263,000 to £275,000 for tax charges arising on or after 6 April 2005. The threshold for the following two years has also been announced as £285,000 for 2006/07 and £300,000 for 2007/08.

Stamp Duty and Stamp Duty Land Tax

The threshold for stamp duty land tax on residential property has been raised to £120,000, applicable to transactions the effective date of which is on or after 17 March 2005 (there is no change to the £150,000 threshold for residential transactions in designated disadvantaged areas). SDLT is therefore only payable if the consideration exceeds £120,000, but there is no marginal relief. There is no change to the rates of SDLT, or to the 3% threshold (£250,000) or 4% threshold (£500,000).

If, exceptionally, a sale of residential property remains subject to stamp duty, the threshold is raised to £120,000. Subject to that, the rates of stamp duty are unaltered.

Civil partnerships

From 5 December 2005 a same-sex couple will be able to register their partnership and attract the same legal consequences as if they were a married couple. That has consequences for their tax liabilities. Accordingly the government has announced that legislation will be implemented, taking effect from 5 December 2005, which will ensure that the tax treatment of a registered civil partnership will mirror that of a married couple. In a Budget summary press release the principal effects were stated as:

‘— Transfers between civil partners in lifetime or on death will generally be exempt from inheritance tax without limit.

— Only one property owned by a couple who are civil partners, whether that property is owned solely or jointly, may be treated as the principal private residence of either of them at any time for the purposes of capital gains tax private residence relief.

— Transfers of assets between persons who are civil partners who are living together will be on a no-gain no-loss of basis for capital gains tax purposes.

— Pension tax legislation will be amended so that references to husband, wife, ex-husband, ex-wife, spouse, ex-spouse, surviving spouse, widow, widower will now include civil partner, former civil partner and surviving civil partner under the terms of the CPA.

— There will be an exemption from stamp duty and stamp duty land tax for transactions carried out in connection with the dissolution of a civil partnership so that transfers of shares or the transfer of the partners’ home from joint ownership into the sole ownership of one of the ex-partners is exempt.

— Where one of the partners was born before 6 April 1935 the partners will be entitled to an allowance equivalent to the married couple’s allowance.

— Anti-avoidance legislation will be extended to include civil partners in the same way as spouses, including the legislation relating to settlements, company control and the transfer of assets abroad.’

Statute

Mental Capacity Act 2005 (c 9)

This Act makes provision for medical treatment of those unable to consent for themselves, including the appointment of lasting powers of attorney.

Statutory Instruments

The Family Proceedings Fees (Amendment) Order 2005, SI 2005/472

Under art 3(2)(b) of the Family Proceedings Fees Order 2004, SI 2004/3114, there is a maximum gross annual income taken into account for the purposes of working tax credit, above which working tax credit will not be a qualifying benefit for the purposes of exemption from court fees under the Order. This Order amends that maximum gross annual income, from £14,600 to £15,050 with effect from 6 April 2005.

The Children (Allocation of Proceedings) (Amendment) Order 2005, SI 2005/520

This Order came into force on 1 April 2005. Exeter County Court has become a Care Centre as defined in art 2 of the Children (Allocation of Proceedings) Order 1991. A Care Centre is a county court designated for the purpose of hearing cases under Parts III, IV or V of the Children Act 1989. This Order effects this change and amends the 1991 Order to re-organise the transfer arrangements between magistrates’ courts and Care Centres on the Western Circuit to reflect this change.

Amendments to the Order have also been made to replace references to ‘petty sessions areas’ and ‘London commission area’ with references to ‘local justice area’ to reflect the changes to the organisation of the courts made by the Courts Act 2003 which are also being brought into force on 1 April 2005. References to circuits are changed to references to the new administrative regions which will be used after that date.

At the same time the opportunity has been taken to up-date the names of the petty sessions areas (local justice areas as they will become) in consequence of changes to their boundaries which have not previously been reflected in the 1991 Order.

The Social Security Benefits Up-rating Order 2005, SI 2005/522

This Order is made as a consequence of a review under s 150 of the Social Security Administration Act 1992 and sets out the uprated sums of benefits mentioned in that section. The uprating took effect on various dates in April 2005.

The Family Proceedings (Amendment No 3) Rules 2005, SI 2005/559

These Rules amend the Family Proceedings Rules 1991 in consequence of the Gender Recognition Act 2004, to make changes consequent on the introduction of Welsh family proceedings officers, and to make several further, minor, changes. The changes took effect in April 2005.

The 2004 Act provides for transsexual persons legal recognition in their acquired gender on the issue of a full gender recognition certificate. A person may apply to a Gender Recognition Panel. If the applicant meets the statutory criteria and is unmarried, the Panel will issue to him a full gender recognition certificate. If he is married, the Panel will issue to him an interim gender recognition certificate. The 2004 Act amended the Matrimonial Causes Act 1973 (c 18) (‘the 1973 Act’) to provide two new grounds of nullity. The first is where an interim gender recognition certificate has, after the time of the marriage, been issued to either party to the marriage (s 12(g) of and Sch 1, para 11(1)(e) to the 1973 Act, as amended by s 4(4) of and Sch 2 to the 2004 Act). Where a person obtains a decree absolute of nullity on this ground, the court must issue to him a full gender recognition certificate. The second new ground of nullity is where the respondent is a person whose gender at the time of the marriage had become the acquired gender under the 2004 Act (s 12(h) of the 1973 Act, as amended by s 11 of and Sch 4, paras 4–6 to the 2004 Act). A person’s gender only becomes the acquired gender under the 2004 Act when a full gender recognition certificate is issued to him.

Rule 4 inserts FPR rr 2.6A and 2.6B, which require a petitioner to file with his petition a copy of the interim gender recognition certificate (if the petition is brought on the first new ground of nullity) or a copy of the full gender recognition certificate (if the petition is brought on the second new ground). The petitioner may apply to court if he is unable to do this. FPR r 2.6A requires the proper officer of the court to notify the Secretary of State of petitions brought under the first new ground. Rule 6 inserts FPR rr 2.12A and 2.12B, which make corresponding provision where either new ground of nullity is raised for the first time in an answer to a petition. Rule 5 inserts FPR r 2.9A, which requires respondents to petitions on the new grounds of nullity to file with any acknowledgement of service a copy of the appropriate certificate. Corresponding provision for replies to answers raising either of the new grounds for the first time is made by FPR r 2.13A inserted by rule 7.

Rule 9 inserts FPR rule 2.51AA which makes provision for applications made under s 6(1) of the 2004 Act (where a court has issued a full gender recognition certificate which contains an error, an application may be made under this section for the issue of a corrected certificate).

Rule 15 inserts FPR rule 3.24 which makes provision for references made under s 8(5) of the 2004 Act (where the Secretary of State considers an application for a gender recognition certificate to have been secured by fraud). Where the Secretary of State is aware that nullity proceedings have been brought on the first new ground, he must give particulars of this and serve notice of the s 8(5) reference on the court in which those proceedings are pending. Rule 8 amends FPR r 2.49(2), so that a decree on the first new ground of nullity should not be made absolute if a search of that court’s records discloses extant s 8(5) proceedings.

Rule 20 inserts FPR r 8.4 which makes provision for appeals under s 8(1) of the 2004 Act (which provides a statutory appeal to the High Court on a point of law against a decision of a Gender Recognition Panel to reject an application made to it).

Rule 22 makes provision for the storage of documents concerning gender recognition.

Rules 23(a) and 24 make minor amendments, largely to reflect the changes made by these rules to FPR Part 2.

Rules 3(b) and 16–19 amend the FPR 1991 to enable functions performed by an officer of the Children and Family Court Advisory and Support Service (‘CAFCASS’) under the Family Proceedings Rules 1991 to be performed by a Welsh family proceedings officer. The amendment follows the transfer of functions from CAFCASS to the National Assembly for Wales by s 35 of the Children Act 2004 for children ordinarily resident in Wales.

A Welsh family proceedings officer is defined under sub-s (4) of that section as any member of the staff of the National Assembly for Wales (‘the Assembly’) appointed to exercise the functions of a Welsh family proceedings officer, and any other individual exercising those functions by virtue of s 36(2) and (4) of that Act (which allow the Assembly to make arrangements with organisations and individuals to perform the functions of Welsh family proceedings officers).

Rules 25 and 26 make transitional provision to deal with the situation where a CAFCASS officer who is already acting as a children and family reporter or a children’s guardian in proceedings becomes a Welsh family proceedings officer.

Rules 10–14, 21, 23(b)–(d) and Schs 1 and 2 amend the FPR by making a number of minor changes to Part 3 (other Matrimonial etc Proceedings). Rules 12 and 14 remove redundant references to Form M11 (Notice of Application for Ancillary Relief). This form was revoked by SI 1999/3491 with effect from 5 June 2000 and replaced by Forms A and B.

Rule 13 amends a current inconsistency in r 3.9A (Enforcement of orders made on applications under Part IV of the Family Law Act 1996) so that certain provisions of the Rules of the Supreme Court 1965 and County Court Rules 1981 may apply, with necessary modifications, to the enforcement of orders made on the court’s own motion under Part IV of the Family Law Act 1996.

Under the Matrimonial Causes Rules 1977, Form 6 was a combined form of Acknowledgement of Service that could be used for both matrimonial proceedings and other forms of originating process. The revised Form M6 introduced by the FPR was specifically designed for use in divorce proceedings, however, references to the use of the old version of the form were carried over into Part 3 of the FPR. Rule 23(d) resolves this inconsistency by inserting into Appendix 1, a new Form M23A; and rules 10 and 21 substitute references to this new form (in place of Form M6) where appropriate. Rule 11 makes a further consequential change. Rules 23(b) and (c) make changes to Form M20 and M23 in light of the introduction of Form M23A.

The Community Legal Service (Funding) (Amendment) Order 2005, SI 2005/571

This Order amends the Community Legal Service (Funding) Order 2000. Amendments are made to Arts 2 and 5 of that Order in consequence of the establishment under s 26 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 of the Asylum and Immigration Tribunal, which replaces immigration adjudicators and the Immigration Appeal Tribunal. Article 5 is also amended so that the maximum rates of remuneration under contracts specified in that article do not apply in relation to Legal Representation before the Asylum and Immigration Tribunal or the High Court in applications under s 103A of the Nationality, Immigration and Asylum Act 2002, or before the Asylum and Immigration Tribunal in proceedings for the reconsideration of an appeal pursuant to an order under s 103A.

The Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 2) Regulations 2005, SI 2005/573

These Regulations make various amendments to the Council Tax Benefit (General) Regulations 1992 and the Housing Benefit (General) Regulations 1987.

The Social Security (Miscellaneous Amendments) Regulations 2005, SI 2005/574

These Regulations, which came into force on 4 April 2005, further amend the Income Support (General) Regulations 1987 (SI 1987/1967), the Housing Benefit (General) Regulations 1987 (SI 1897/1971), the Council Tax Benefit (General) Regulations 1992 (SI 1992/1814) and the Jobseeker’s Allowance Regulations 1996 (SI 1996/207) (‘the Income-related Benefits Regulations’). These Regulations also further amend the State Pension Credit Regulations 2002 (SI 2002/1792) (‘the State Pension Credit Regulations’).

Regulation 2(1) amends the interpretation provisions of the Income-related Benefits Regulations and the State Pension Credit Regulations in relation to the introduction of the Armed Forces and Reserve Forces Compensation Scheme (‘the new scheme’) established under s 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (c 32).

Regulation 2(2) amends reg 15(5) of the State Pension Credit Regulations 2002 adding certain payments made under the new scheme to the descriptions of income which are prescribed for the purposes of s 15(1)(j) of the State Pension Credit Act 2002 (c 16).

Regulation 2(4) makes similar amendment to the Housing Benefit (General) Regulations 1987 and to the Council Tax Benefit (General) Regulations 1992 as modified by the Housing Benefit and Council Tax Benefit (State Pension Credit) Regulations 2003 (SI 2003/325) for persons who have attained the qualifying age for state pension credit.

Regulation 2(5) and (6) amends the Income Support (General) Regulations 1987 and the Jobseeker’s Allowance Regulations 1996 to include within the notional income and notional capital rules, payments made under the new scheme.

Regulation 2(7) and (8) provides a £10 weekly income disregard for guaranteed income payments made under the new scheme.

The Domestic Violence, Crime and Victims Act 2004 (Commencement No 1) Order 2005, SI 2005/579

This Order brings into force the provisions of the Domestic Violence, Crime and Victims Act 2004 set out in art 2 on 21 March 2005 (including ss 5, 6, 7 and 8 —causing or allowing the death of a child or vulnerable adult); and brings into force the provisions of that Act set out in art 3 on 31 March 2005.

The Family Proceedings Courts (Children Act 1989) (Amendment No 3) Rules 2005, SI 2005/585

These Rules amend the Family Proceedings Courts (Children Act 1989) Rules 1991 (‘the 1991 Rules’) to provide that functions previously performed by an officer of the Children and Family Court Advisory and Support Service (‘CAFCASS’) are to be performed, in relation to children ordinarily resident in Wales, by a Welsh family proceedings officer. The amendment follows the transfer of functions from CAFCASS to the National Assembly for Wales by s 35 of the Children Act 2004 for children ordinarily resident in Wales. The Rules take effect on 1 April 2005.

The Children and Family Court Advisory and Support Service (Reviewed Case Referral) (Amendment) Regulations 2005, SI 2005/605

These Regulations, which came into force on 1 April 2005, amend the Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004 consequential on the National Assembly for Wales and Welsh family proceedings officers having functions in Wales previously discharged by the Children and Family Court Advisory and Support Service (‘CAFCASS’) and CAFCASS officers. References in the existing regulations to CAFCASS and officers of the Service are amended to cover the National Assembly for Wales so far as it is exercising its functions under s 35 of the Children Act 2004 and Welsh family proceedings officers.

The Social Security Benefits Up-rating Regulations 2005, SI 2005/632

This instrument contains provisions up-rating benefits in consequence of an order under s 150 of the Social Security Administration Act 1992. It takes effect from 11 April 2005.

Regulation 2 provides that where a question has arisen about the effect of the Social Security Benefits Up-rating Order 2005 (SI 2005/522) (‘the Up-rating Order’) on a benefit already in payment, the altered rates will not apply until that question is determined by the Secretary of State, an appeal tribunal or a Commissioner.

Regulation 3 applies the provisions of reg 5 of the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975/563) so as to restrict the application of the increases specified in the Up-rating Order in cases where the beneficiary lives abroad.

Regulation 4 raises from £165 to £170 and from £21 to £22 the earnings limits for child dependency increases payable with a carer’s allowance. These increases were abolished by ss 1(3)(e) and 60 of, and Sch 6 to, the Tax Credits Act 2002 (c 21) but are saved for transitional cases by virtue of art 3 of the Tax Credits Act 2002 (Commencement No 3 and Transitional Provisions and Savings) Order 2003 (SI 2003/938).

The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005, SI 2005/635

This order has been superseded by The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No 2) Order 2005, SI 2005/916, see below.

Gender Recognition (Application Fees) Order 2005, SI 2005/638

This Order came into effect on 4 April 2005. Section 7(2) of the Gender Recognition Act 2004 provides for fees to be payable in relation to applications to a Gender Recognition Panel under s 1(1), 5(2) and 6(1) of the Act. This Order prescribes the level of those fees. It prescribes a fee of £140 for applicants whose relevant income is greater than £22,575, and a fee of £30 for applicants whose relevant income is greater than £15,050 but not greater than £22,575. It prescribes that no fee is payable in circumstances where the applicant’s relevant income is £15,050 or less or the applicant is in receipt of a qualifying benefit. ‘Relevant income’ and ‘qualifying benefit’ are defined in arts 4 and 5.

The Order also prescribes that no fee is payable if the application is made under s 5(2) (application for a full gender recognition certificate within six months of grant of an interim gender recognition certificate) or under s 1(1) where the applicant had previously received an interim gender recognition certificate, or under s 6(1) (application for a corrected certificate where the original contains an error).

The Child Benefit and Guardian’s Allowance Up-rating Order 2005, SI 2005/682

This Order came into force on 11 April 2005.

Article 2 increases the weekly rate of guardian’s allowance prescribed in para 5 of Part III of Sch 4 to the Social Security Contributions and Benefits Act 1992 (c 4) from £11.85 to £12.20.

Article 3 increases the weekly rates of child benefit prescribed in sub-paras (a)(i) and (b) of reg 2(1) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976 (SI 1976/1267) from £16.50 to £17.00 and from £11.05 to £11.40 respectively.

The Children Act 2004 (Commencement No 2) Order 2005, SI 2005/700

The Order brings ss 35 to 43 of and Sch 3 to the Act, which relate to CAFCASS functions in Wales, into force in England and Wales. Sections 42 and 43 which deal with the transfers of property and staff are brought into force on 16 March 2005 and ss 35–41 and Sch 3 are brought into force on 1 April 2005.

The Child Support (Miscellaneous Amendments) Regulations 2005, SI 2005/785

These Regulations provide for the amendment of regulations relating to child support.

The powers exercised to make these Regulations are those contained in the Child Support Act 1991. Some of those powers are conferred by provisions of the 1991 Act prior to the amendments made to that Act by the Child Support, Pensions and Social Security Act 2000, which amendments are not fully in force, and relate to the child support scheme which was in force prior to 3 March 2003 and which remains in force for the purposes of certain cases (‘the old scheme’). Other powers are conferred by provisions of the 1991 Act as amended by the 2000 Act, which relate to the child support scheme provided for by those amendments and which came into force for the purposes of specified categories of cases on 3 March 2003 (see the Child Support, Pensions and Social Security Act 2000 (Commencement No 12) Order 2003) (‘the new scheme’).

Regulation 2 amends the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992, which are old and new scheme regulations, to insert a new reg 8A (which only applies to the new scheme), which provides for payments due and made under a maintenance order to be treated as child support maintenance where those payments have been made under that order after the date on which a maintenance calculation took effect and the maintenance order has ceased to have effect under reg 3 of those
Regulations.

Regulation 3 amends the Child Support (Maintenance Assessment Procedure) Regulations 1992, which are old scheme regulations. Paragraph (2) inserts definitions of ‘family’ and ‘partner’ into reg 1(2) of those Regulations. Paragraph (3) makes a consequential amendment to reg 8(3) of those Regulations. Paragraph (4) makes a consequential amendment to reg 20(3) of those Regulations. Paragraph (5) inserts new paras (21) and (22) into reg 23 of those Regulations. That para (21) makes provision for the effective date of a decision where a person with care has ceased to be the person with care in relation to a qualifying child in respect of whom the maintenance assessment was made, being the date that person so ceased to be the person with care in relation to that child and that para (22) disapplies the provisions of reg 21 of those Regulations where a superseding decision is made and the circumstances set out in reg 23(19) and (21) of those Regulations apply.

Regulation 4 amends the Child Support (Maintenance Assessments and Special Cases) Regulations 1992, which are old scheme regulations. Paragraph (2) makes clarifying amendments. Paragraph (3)(a) inserts a new para 18A of Sch 2 to those Regulations providing for a new disregarded amount where a payment is made in respect of a parent under a scheme mentioned in s 1(2) of the Armed Forces (Pensions and Compensation) Act 2004. Paragraph (3)(b) makes a consequential amendment. Paragraph (3)(c) extends the disregard in para 25 of Sch 2 to those Regulations to apply to payments made under para 3 of Sch 4 to the Adoption and Children Act 2002 and sub-para (d) inserts a new para 25A for the disregard of payments made under s 14F of the Children Act 1989 where a special guardianship order has been made. Paragraph (4) adds the Armed Forces (Pensions and Compensation) Act 2004 to the list of enactments under which awards made in respect of disablement are cases where child support maintenance is not to be payable.

Regulation 5 amends the Child Support (Maintenance Calculation Procedure) Regulations 2000, which are new scheme regulations, to make a clarifying amendment.

Regulation 6 amends the Child Support (Maintenance Calculations and Special Cases) Regulations 2000, which are new scheme regulations. Other than paragraph (4) all the amendments made by this regulation either mirror those made to the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 or make clarifying or consequential amendments. Paragraph (4) amends reg 11(1) of those Regulations extending that special case where the circumstances are that an application for child support maintenance has been made (or treated as made) and the non-resident parent in respect of whom the application was made is liable for payments of maintenance for a different child under the terms of an order of a court outside Great Britain, or under the legislation of a jurisdiction outside the United Kingdom.

Regulation 7 amends the Child Support (Transitional Provisions) Regulations 2000 which make provision for the conversion of cases from the old to the new scheme. Paragraph (2) makes a clarifying amendment and para (3) amends reg 27 of those Regulations making provision for the amount payable where there is a ‘subsequent decision’ made during the transitional period and the consequence of that decision is that there is only one person with care in relation to the non-resident parent where previously there had been more than one.

Regulation 8 amends the Child Support (Variations) Regulations 2000 (‘the Variations Regulations’), which are new scheme regulations. Paragraph (3) substitutes reg 11(3) of those Regulations to make provision to take into account financial assistance paid in respect of the long-term illness or disability of a relevant other child or disability living allowance paid on behalf of that child, to a member of the non-resident parent’s household where there is an application for a variation for special expenses for that relevant other child. Paragraph (5) extends the ground in reg 19 of those Regulations for a variation for income not taken into account to a case where the non-resident parent has the ability to control the amount of income he receives from a company or business and the Secretary of State is satisfied he is receiving income which would not otherwise fall to be taken into account under the Child Support (Maintenance Calculations and Special Cases) Regulations 2000. Paragraph (5)(b) makes provision for a threshold for a variation in relation to each specified case under reg 19(1) and (1A) of those Variations Regulations, or an aggregated amount where both cases apply. Paragraph (5)(c) makes a consequential amendment to, and omits words from, reg 19(4) of those Regulations. Paragraph (5)(d) sets out the amount of income to be taken into account where a variation is made under reg 19(1A) of those Regulations. Paragraphs (2), (4) and (6) make consequential amendments.

The Children Act 2004 (Commencement No 3) Order 2005, SI 2005/847

This Commencement Order brings s 62 of the Children Act 2004 into force on 12 April 2005. Section 62 concerns publication of material relating to legal proceedings.

The Gender Recognition (Approved Countries and Territories) Order 2005, SI 2005/874

This Order, which came into force on 4 April 2005, prescribes the countries and territories that are approved by the Secretary of State for the purposes of the Gender Recognition Act 2004.

Section 1(1)(b) of the Act permits applications for a gender recognition certificate on the basis of having changed gender under the law of a country or territory outside the United Kingdom. Applicants under s 1(1)(b) are required by s 3(5) to provide evidence that they have changed gender under the law of an ‘approved country or territory’ outside the United Kingdom. An ‘approved country or territory’ is defined by s 2(4) as one prescribed by order made by the Secretary of State.

Applicants under s 1(1)(b) need not meet the evidentiary requirements in s  3(1) to 3(4), which apply to applications under s 1(1)(a) of the Act. These include a requirement to provide one or more medical reports from a registered medical practitioner or a chartered psychologist.

The Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005, SI 2005/888

These Regulations, which come into force on 30 December 2005, prescribe certain matters for the purposes of the regime set out in ss 56–65 of the Adoption and Children Act 2002. The regime provides for adoption agencies to keep information about each adoption and to deal with applications for disclosure of such information. The regime will apply in relation to persons adopted on or after 30 December 2005. In relation to persons adopted before that day, the Adoption Agencies Regulations 1983 will continue to have effect.

Part 2 provides for the keeping of information in relation to persons adopted on or after 30 December 2005. Regulation 4 prescribes the information that must be kept (‘section 56 information’). Part 2 also deals with storage and transfer of s 56 information. Regulation 6 requires that s 56 information be kept for at least 100 years from the date of the adoption order.

Part 3 makes general provision for the disclosure of s 56 information and protected information (which is defined in s 57(3) of the Act). Under reg 8 an adoption agency may disclose section 56 information that is not protected information as necessary for the purpose of its functions or for research. It may also disclose any s 56 information, including protected information, to persons providing services in relation to its functions under s 61 or 62 of the Act (for example a registered adoption support agency carrying out enquiries on its behalf). Regulation 9 provides for disclosure of information to specified persons including persons holding inquiries, the Commission for Social Care Inspection and the Secretary of State. Regulation 10 requires a written record to be kept of any disclosure. Regulation 11 prescribes the requirements for an agreement under s 57(5) of the Act.

Part 4 relates to applications for disclosure of protected information under s 61 (information about adults) and 62 (information about children). Regulations 12–14 deal with procedural matters in relation to such applications. Regulation 15 makes provision for independent review of certain decisions of the adoption agency in relation to applications under s 61.

Part 5 makes provision for counselling. Regulation 16 requires adoption agencies to provide information about availability of counselling for persons seeking information about an adoption or persons about whom information is being sought. Regulation 17 requires adoption agencies to secure counselling where requested by persons seeking information.

Part 6 relates to the Registrar General. Adopted adults have a right under s 60 of the Act to request information about their birth records. They must first approach the appropriate adoption agency, which then requests the information from the Registrar General (who is obliged to provide it by virtue of s 79(5) of the Act). Regulation 19 requires the appropriate adoption agency to seek that information and prescribes the manner of the application for it. Regulation 20 requires the Registrar General to disclose information to any person that may assist the person in making contact with the adoption agency that holds the records of his adoption. Regulation 20 also requires the Registrar General to disclose information from the Adoption Contact Register where requested by the appropriate adoption agency in connection with an application under s 60, 61 or 62.

Part 6 deals with miscellaneous matters. It creates an offence of disclosing information in contravention of s 57 of the Act. Regulation 22 prescribes fees that may be charged by adoption agencies in relation to disclosure of information and counselling.

The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005, SI 2005/890

These Regulations, which come into force on 30 December 2005, make provision under s 98 of the Adoption and Children Act 2002 for the purposes of assisting persons adopted before 30 December 2005 to obtain information about their adoption and to facilitate contact between those persons and their birth relatives. The regime for disclosure of information about adoptions on or after 30 December 2005 is set out in ss 56 to 65 of the Act and regulations under those sections.

Part 1 confers functions on registered adoption support agencies and adoption agencies (‘intermediary agencies’) that are willing to provide intermediary services in respect of adoptions before 30 December 2005. Agencies providing such services are required to do so in accordance with these Regulations.

Part 2 deals generally with applications for intermediary services. An intermediary agency may accept an application for an intermediary service from an adopted person or a relative of an adopted person in respect of any adoption before 30 December 2005 but they must give priority to applications in respect of adoptions before 12 November 1975. The intermediary agency is not required to proceed with an application where it does not consider that it would be appropriate. Regulation 6 sets out the factors that the intermediary agency should take into account in making that decision. Regulation 7 requires the intermediary agency to obtain the informed consent of the subject of the application before disclosing information about him that would identify him to the applicant or enable him to be traced. Regulation 8 enables the adopted person to register a veto with the appropriate adoption agency in relation to an application under these Regulations. Regulation 10 requires the intermediary agency to provide information about counselling and secure counselling services in relation to applications for intermediary services.

Part 3 sets out the procedure to be followed by the intermediary agency in processing an application. The first steps include confirming the identity of the applicant and establishing that he is related to the subject. The intermediary agency should then identify the adoption agency that holds the records relating to the adoption (seeking assistance where appropriate from the Registrar General and the court). It should then contact that agency to seek its views on the application and to seek such information as may be necessary to trace the subject of the application (reg 12). Where that information cannot be obtained from the adoption agency, the intermediary agency may seek such information from the Registrar General as may assist in processing the application (reg 14). Regulations 14 and 15 require the Registrar General and the court to provide information when requested. Regulation 16 authorises certain disclosures for the purpose of an application under these Regulations.

Part 4 deals with miscellaneous matters. Regulation 17 creates an offence of disclosure of information in contravention of Regulation 7. Regulation 18 provides for fees that may be charged by intermediary agencies, adoption agencies, the Registrar General and the court in relation to applications under these Regulations.

The Courts Act 2003 (Commencement No 10) Order 2005, SI 2005/910

This Order supersedes the Courts Act 2003 (Commencement No 9, Savings, Consequential and Transitional Provisions) Order 2005 and correctly specifies the minor and consequential amendments, transitional provisions and repeals contained in Schs 8, 9 and 10 to the Courts Act 2003 that are to be brought into force on 1 April 2005.

This Order brings into force various provisions of the Courts Act 2003 on 1 April 2005, including:

— s 6, which abolishes magistrates’ courts committees, magistrates’ courts committee areas and the office of justices’ chief executive;

— ss 7 and 8, which provide for there to be a single commission of the peace for England and Wales and for England and Wales to be divided into local justice areas;

— ss 9 to 35, which make provision in relation to justices, justices’ clerks and assistant clerks;

— ss 43 to 50(1) and 50(4), which deals with the jurisdiction and procedure in criminal, civil and family proceedings in magistrates courts.

The Gender Recognition Register Regulations 2005, SI 2005/912

These Regulations, which came into force on 4 April 2005, make provision for entries to be made in the Gender Recognition Register and the marking of existing birth register entries once the Registrar General receives a copy of the full gender recognition certificate under s 10(1) of the Gender Recognition Act 2004.

The Regulations provide for an entry in the gender recognition register to contain information which corresponds with the information recorded in the applicants existing birth record, apart from the new name and gender which will be obtained from the gender recognition certificate.

The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No 2) Order 2005, SI 2005/916

These Regulations came into force on 4 April 2005. Section 22 of the Gender Recognition Act 2004 provides that it is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person. ‘Protected information’ is defined in s 22(2) as information relating to a person who has applied for a gender recognition certificate under the Act, and which concerns that application (or a subsequent application by them), or their gender prior to being granted a full gender recognition certificate. Section 22(3) defines where a person acquires protected information in an official capacity.

Section 22(4) sets out certain circumstances where disclosure of protected information does not constitute an offence (for example, where the person to whom the information relates is not identifiable, or has agreed to the disclosure). This Order, which revokes and replaces SI 2005/635, prescribes additional circumstances where the disclosure of protected information does not constitute an offence. These concern disclosure for the purpose of obtaining legal advice (art 3), disclosure for religious purposes (art 4) or medical purposes (art 5), disclosure by or on behalf of a credit reference agency (art 6) and disclosure for purposes in relation to insolvency or bankruptcy (art 7). Article 5 uses the terms ‘registered medical practitioner’ and (in relation to a nurse) ‘registered’. These terms are defined in Sch 1 to the Interpretation Act 1978 (c 30).

In some cases, the Order requires the disclosure to include the information that a full gender recognition certificate has been issued to the person to whom the information relates (‘the subject’ as defined in art 2). The effect of including this information is that the person to whom the disclosure is made will not be able to disclose the information to a third person in reliance on s 22(4)(c) of the Act (which permits disclosure where the person making it does not know or believe that a full gender recognition certificate has been issued).

This Order extends only to England and Wales and Northern Ireland.

The Adopted Children and Adoption Contact Registers Regulations 2005, SI 2005/924

These Regulations, which come into force on 30 December 2005, make provision in relation to the Adopted Children Register and the Adoption Contact Register maintained by the Registrar General under the Adoption and Children Act 2002.

Part 2 makes provision in relation to the Adopted Children Register. Regulation 2 prescribes the form of entry in the Register, which is made pursuant to a direction of the court in an adoption order, including the form of entry in the case of a registrable foreign adoption. The form of entry is set out in Sch 1 (England) and Sch 2 (Wales).

Regulation 3 prescribes the requirements that a registrable foreign adoption must meet. Regulation 4 specifies who may make an application relating to a child adopted under a registrable foreign adoption. Regulation 5 prescribes the manner in which such an application should be made and the documents and other information required by the Registrar General.

Part 3 makes provision in relation to the Adoption Contact Register. Regulation 6 prescribes the information to be contained in Part 1 of the Register in relation to adopted persons who have given the prescribed notice expressing their wishes as to making contact with their relatives. The prescribed notice for entry in Part 1 of the Register is set out in Sch 3. Regulation 7 prescribes the information to be contained in Part 2 of the Register in relation to relatives of adopted persons who have given notice expressing their wishes as to making contact with adopted persons. The prescribed notice for entry in Part 2 of the Register is set out in Sch 4. The Registrar General must give an adopted person whose name is in Part 1 of the Register information about any relative of his entered in Part 2 of the Register (regulation 8). Regulation 9 makes provision in relation to the fees payable in respect of making entries in the Register.

Part 4 makes provision in relation to the obtaining of information from the Adopted Children Register and on the connection between this Register and birth records. Regulation 10 specifies the information required from applicants who wish to obtain certified copies of entries in the Adopted Children Register relating to adopted persons under the age of 18 years. Regulation 11 specifies the manner of an application by an appropriate adoption agency for information in respect of an adopted person whose record of birth is kept by the Registrar General and which would enable that person to obtain a copy of the record of his birth. Regulation 12 applies to adoptions before the appointed day and prescribes the manner of an application for information necessary to enable an adopted person to obtain a certified copy of the record of his birth. Regulation 13 prescribes the manner of application by an adopted person who is under the age of 18 years and intends to be married or form a civil partnership.

The Special Guardianship Regulations 2005, SI 2005/1109

These Regulations make provision in relation to special guardianship orders which are provided for in ss 14A–14G of the Children Act 1989 and come into force on 30 December 2005.

Part 2 relates to the requirement in s 14F(1) of the Act for local authorities in England to make arrangements for provision of special guardianship support services. Special guardianship support services are defined by s 14F(1) of the Act as counselling, advice and information, and other services prescribed by regulations, in relation to special guardianship.

Chapter 1 of Part 2 deals with the provision of services. Such services are prescribed by reg 3 and include financial support (as required by s 14F(2)). The provision of services may be secured from the persons specified in regulation 4. Regulation 5 provides for services to persons outside the local authority’s area.

Chapter 2 of Part 2 deals with financial support. It may only be paid in the circumstances specified in reg 6. It may include a remuneration element where it is paid to a former local authority foster parent under regulation 7. Regulations 8–10 provide for payment of financial support, including conditions that may be imposed.

Chapter 3 of Part 2 deals with assessment of a person’s needs for special guardianship support services, plans for provision of services and notifications of proposals and decisions in relation to the provision of services.

Chapter 4 of Part 2 deals with reviews of special guardianship support services.

Chapter 5 of Part 2 contains miscellaneous provision in relation to special guardianship support services, including a general exemption from the requirements in relation to assessments, giving of notice etc in cases of urgency (reg 19) and provision as to service of notices (reg 20).

Part 3 contains miscellaneous provisions. Regulation 21 and the Schedule prescribe the matters that must be included in a report to the court where a person gives notice of an application to be made a special guardian. Regulation 22 specifies for the purposes of ss 24A and 24B of the Act the relevant authority in relation to a child in respect of whom a special guardianship order is in force and who was immediately before the making of that order looked after by a local authority.

The Child Abduction and Custody (Parties to Conventions) (Amendment) Order 2005, SI 2005/1260

This Order amends the Child Abduction and Custody (Parties to Conventions) Order 1986 to add Bulgaria, Estonia, Hungary, Macedonia, Moldova, Romania, Serbia and Montenegro and Slovakia to the list of Contracting States to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, signed at Luxembourg on 20 May 1980 (Cm 191). This Order also amends the date of entry into force of that Convention as between the United Kingdom and Lithuania, as well as the dates of entry into force of the Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 October 1980 (Cm 33), as between the United Kingdom and Belarus; Bosnia and Herzegovina; Burkina Faso; Ecuador; Estonia; Fiji; Latvia; Mexico; New Zealand; Peru; Serbia and Montenegro; Turkey; Turkmenistan; Uruguay; and Uzbekistan. These amendments bring the relevant entry into force dates into line with the dates recorded by the depositories for the two Conventions. The Order was made on 7 May 2005.

The Criminal Justice Act 2003 (Commencement No 9) Order 2005, SI 2005/1267

This Order brings into force on 9 May 2005 provisions of the Criminal Justice Act 2003 which relate to the sending of persons to the Crown Court for trial under ss 51 or 51A(3)(d) of the Crime and Disorder Act 1998 and the committal of dangerous young offenders to the Crown Court for sentence under s 3C of the Powers of Criminal Courts (Sentencing) Act 2000.