March 2003

Bulletin No 66
Butterworths Family and Child Law Bulletin – March 2003

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.

Financial
provision

No
justification for departing from equal division—exceptional
case for claw back

BFLS 4A[1012]

Parra v Parra [2002] EWCA
Civ 1886, [2003] 1 FCR 97

In Parra v Parra [2002] EWCA
Civ 1886, [2003] 1 FCR 97, the Court of Appeal overturned the
decision of Charles J to award the wife 54% of the assets in
addition to imposing a claw back ensuring that the wife would
benefit if the sale of a piece of land known as Star Works proved
profitable in the future (as was hoped but not predictable with any
certainty). The husband appealed, contending that the judge had
erred in awarding the wife this share and also that the claw back
took into account prospects after the divorce and undermined the
clean break. The Court of Appeal found that the judge had
overcomplicated the case. This was a situation in which the
overwhelmingly obvious solution was an equal division of assets.
The differential distribution had been based on false assumptions
about the husband’s future earning potential that had not
been applied in the same way to the wife. Thus, to assume the
husband would continue to succeed in business but not to expect the
same success from the wife, when they had been successful in
business together, was wrong. The parties had effectively arranged
their affairs to constitute a form of community of property. This
deserved considerable weight and should only be displaced by a
judicial distribution where fairness obviously demands a
reordering. The Court of Appeal ordered that the assets should be
split equally, with equal liability for the children’s school
fees falling on each of the spouses. The Court of Appeal considered
that the use of a claw back provision would only be appropriate in
exceptional circumstances. It was inconsistent with the clean
break. It was complex to negotiate, making for a laborious and
expensive process. It was likely to lead to future litigation, even
after the death of the husband. However, the husband had given
evidence that he would regard it as unfair if the wife were not to
benefit from any windfall profits were Star Works to increase
substantially in value due to a change in planning policy. In those
circumstances, the claw back was defensible and would remain,
although limited in term to the joint lives of the parties.

Comment: This
decision draws on the intention of the parties (who had run their
lives as a joint enterprise) as a strong indicator of the
appropriate outcome. The court would need a compelling reason to
depart from equality when it was clear that that was the mutual
intention of the parties. However, it is unclear how the court
should respond to a mutual intention of an unequal split and it
remains to be seen how the implications of White v White will be
worked out in relation to agreements, per-nuptial or otherwise
about the division of assets.

Statutory
Instruments

The Social
Security (Child Maintenance Premium and Miscellaneous Amendments)
Amendment Regulations 2003, SI 2003/231

These Regulations
amend the Social Security (Child Maintenance Premium and
Miscellaneous Amendments) Regulations 2000. They will come into
force on the dates on which s 23 of the Child Support, Pensions and
Social Security Act 2000 is commenced for different types of cases.
The date that section comes into force in respect of a particular
case is referred to in reg 1 of the Child Maintenance Premium
Regulations. These Regulations have the same provision for their
coming into force.

These Regulations
substitute a new regulation for reg 4 of the Child Maintenance
Premium Regulations (revocations and transitional provisions). New
para (1) provides for the revocation of the Social Security (Child
Maintenance Bonus) Regulations 1996, related amending regulations
and the Child Maintenance Bonus (Northern Ireland Reciprocal
Arrangements) Regulations 1997. New para (2) provides that the
Child Maintenance Bonus Regulations and the Reciprocal Arrangements
Regulations shall continue to have effect despite their revocation
in respect of the following people:

—  a person who had
satisfied the work condition in accordance with reg 3(1)(c) of the
Child Maintenance Bonus Regulations (entitlement to a bonus: the
work condition) and claimed a child maintenance bonus before the
commencement date but whose claim has not been determined before
that date;

—  a person to whom reg
8 of the Child Maintenance Bonus Regulations (retirement) applied
before the commencement date, but whose entitlement or, as the case
may be, claim has not been determined before that date; and

—  a person who was
entitled to claim a child maintenance bonus before the commencement
date who claims the bonus after the commencement date, but within
the time limits for claiming a bonus in reg 10 or 11 of the Child
Maintenance Bonus Regulations.

New paras (3) and
(4) provide that regs 2–6 and 9–13 of the Child
Maintenance Bonus Regulations and the Reciprocal Arrangements
Regulations shall continue to have effect despite their revocation
in respect of a person who:

—  has made a claim for
a child maintenance bonus before the commencement date but before
that date had not satisfied the work condition; or

—    has not claimed a child
maintenance bonus before the commencement date, is in receipt of
income support or income-based jobseeker’s allowance, has a
qualifying child residing with her and is in receipt of child
maintenance on the day immediately before the
commencement date.

In respect of a
person to whom new para (3) applies, reg 3 of the Child Maintenance
Bonus Regulations is modified to provide that that regulation shall
only apply to such a person as follows:

—  if the only child
being cared for by a person with care dies no later than the day
immediately before the commencement date then the person with care
has 12 months from the date of death to satisfy the work
condition;

—  if the absent parent
dies, ceases to reside in the UK, or is found not to be the parent
of the child in question no later than the day immediately before
the commencement date, the person with care has 12 weeks from the
date of the relevant event to satisfy the work condition; or

—  if the person with
care or her partner starts work and thereby satisfies the work
condition within one month after the commencement date (new para
(5)).

In respect of all
categories, reg 4 of the Child Maintenance Bonus Regulations (bonus
period) is modified to provide that the bonus period shall end in
all cases on the day immediately before the commencement date if it
has not already ended before that day (new para (6)).

New para (8)
provides that, for the purposes of reg 4 of the Child Maintenance
Premium Regulations, the term ‘child maintenance’ has
the meaning given by the Child Maintenance Bonus Regulations.

The Adoption
and Children Act 2002 (Commencement No 2) Order 2003, SI
2003/288

This Order is the
second Commencement Order made under the Adoption and Children Act
2002. The first related to Wales only. Article 2(a) brings into
force on 3 February 2003 Sch 3, para 53 to the Act. That paragraph
amends the definition of ‘prescribed’ in the Adoption
(Northern Ireland) Order 1987 so as to enable the Department of
Finance and Personnel to make regulations under Articles 53(3B) and
(3D) and 54 of that Order. Article 2(b) brings into force on 3
February 2003 Sch 4, para 4(1) to the Act which amends s 9 of the
Adoption Act 1976. The effect of the amendment is to enable the
appropriate Minister, as defined in the amendment, to make
regulations in connection with the regulation of adoption
agencies.

The Housing
Benefit and Council Tax Benefit (General) Amendment (No 2)
Regulations 2003, SI 2003/308

These Regulations,
which take effect on 1 April 2003, further amend the Housing
Benefit (General) Regulations 1987 and the Council Tax Benefit
(General) Regulations 1992 to provide for the date on which the
changes of circumstances occasioned by the abolition of working
families’ tax credit and disabled person’s tax credit
and the introduction of working tax credit and child tax credit are
to take effect for the purposes of determining entitlement to
housing benefit or council tax benefit

The Housing
Benefit and Council Tax Benefit (State Pension Credit) Regulations
2003, SI 2003/325

These Regulations
come into force on 6 October 2003, save for reg 30, which comes
into force on 6 April 2003. They amend the Housing Benefit
(General) Regulations 1987 and the Council Tax Benefit (General)
Regulations 1992. They contain new provisions for those who have
attained the qualifying age for state pension credit. In the case
of a woman, that age is pensionable age and in the case of a man it
is the age which is pensionable age in the case of a woman born on
the same day as the man (State Pension Credit Act 2002, s
1(6)).

Part 2 contains
modifications to the Housing Benefit Regulations. Regulation 3 of
that Part adds new expressions to the interpretation provisions in
the Housing Benefit Regulations. Regulation 6 contains new
provisions for determining the applicable amount for a person who
has attained the qualifying age for state pension credit. Rates for
those aged 65 or over are higher than for those aged under 65.

Regulation 8
replaces the existing provisions on income and capital with new
regs 21–44 of the Housing Benefit Regulations. They provide
in particular that:

—  those entitled to a
guarantee credit in state pension credit are to be treated as
having neither income nor capital;

—  the calculation of
the income of a claimant whose entitlement to state pension credit
consists only of the savings credit will be based upon the
assessment made by the Secretary of State for the purposes of
determining the award of state pension credit. This figure is to be
subject to a number of adjustments which the determining authority
must make in accordance with the provisions of reg 23;

—  those who have
attained the qualifying age for state pension credit but have no
entitlement to that benefit will have their income and capital
calculated in accordance with the rules set out in regs 25–44
of the Housing Benefit Regulations.

Regulation 25 of
the Housing Benefit Regulations provides a definition of
‘income’ for the purposes of those claimants who have
attained the qualifying age for state pension credit. Regulations
26–29 contain provisions relating to the calculation of a
person’s income; regs 30 and 31 provide for the calculation
of earnings from employed earner’s employment and regs
32–35 provide for the calculation of the earnings of
self-employed earners. Regulations 38–44 provide for the
calculation of a person’s capital and include provisions as
to notional capital (reg 42) and diminishing notional capital (reg
43). Regulation 44 provides for capital jointly held.

Regulation 9 of
these Regulations provides that the provisions of Part VII of the
Housing Benefit Regulations (students) (regs 46–60) will not
apply to those who have attained the qualifying age for state
pension credit.

Regulation 10
provides for continuing payments of housing benefit where the
claimant has attained the qualifying age for state pension credit,
or if he claimed jobseeker’s allowance after attaining that
age, has attained the age of 65. It also applies where the
claimant’s partner has actually claimed state pension
credit.

Part 3 (regs
12–20) contains matching provisions relating to council tax
benefit.

Part 4 (reg 21)
introduces three new Schedules common to both housing benefit and
council tax benefit. These Schedules make provision for
disregarding prescribed sums in calculating the income and capital
of the claimant.

Part 5 contains
miscellaneous consequential provisions and savings. Regulation 22
specifies the date a change of circumstances is to take effect
where the change relates to a non-dependant. Regulation 23 amends
regulations relating to housing benefit and council tax benefit
relating to claims in their application to persons who have
attained the qualifying age for state pension credit.

Regulation 24
specifies changes of circumstances which a claimant must report. It
also introduces new provisions specifying the date a change of
circumstances takes effect where state pension credit is payable.
Regulation 25 specifies the information which a local authority
which has determined a claim for housing benefit must give to a
claimant who has attained the qualifying age for state pension
credit.

Regulation 26
provides for state pension credit to be added to the list of
benefits from which housing benefit and council tax benefit may be
recovered. Regulation 27 contains minor amendments.

Regulation 28
amends the Housing Benefit and Council Tax Benefit (Decisions and
Appeals) Regulations 2001 which is consequential upon reg 24 (date
a change of circumstances takes effect).

Regulations 29 and
30 contain transitional provisions relating to claims for housing
benefit and council tax benefit by persons who have attained or
whose partner has attained the qualifying age for state pension
credit.

Regulation 31
makes provision for existing beneficiaries who, on 6 October 2003,
are patients.

The Child
Support (Miscellaneous Amendments) Regulations 2003, SI
2003/328

These Regulations
provide for the amendment of regulations relating to child support
and are made under the Child Support Act 1991 and the Child
Support, Pensions and Social Security Act 2000. Of those in the
1991 Act, some of the powers are those prior to the amendments made
to that Act by the 2000 Act, in so far as those amendments are not
yet fully in force, and relate to the child support scheme
presently in place. Other powers are those following amendments
made to the 1991 Act by the 2000 Act, which relate to the new child
support scheme provided for by those amendments.

Regulations 2, 4,
5, 6(2), (4), (5), (6), (7)(a) and (b) and (8)(b), 7(3), 8(2) and
(4) and 10 amend various sets of Regulations, some of which relate
to the current scheme, some to the new scheme and, in the case of
the amendments made by reg 2, to both of the schemes. These
amendments substitute references, and make related provisions, as a
result of the introduction of working tax credit and child tax
credit from 6 April 2003 and the linked revocation of working
families’ tax credit and disabled person’s tax
credit.

These Regulations
make a number of amendments in addition to those relating to
working tax credit and child tax credit.

Regulation 3
amends the Social Security and Child Support (Decisions and
Appeals) Regulations 1999 and will come into force at different
times for different cases as determined by commencement order made
under s 86(2) of the 2000 Act. Regulation 3 makes amendments to reg
7B of the Decisions and Appeals Regulations to provide new dates
from which a child support decision which is superseded under s 17
of the 1991 Act, takes effect. Inserted para (17A) of reg 7B of the
Decisions and Appeals Regulations provides an effective date where
a person ceases to be a person with care in relation to a
qualifying child in respect of whom the maintenance calculation was
made but continues to be a person with care in relation to other
qualifying children in respect of whom the maintenance calculation
was made. Inserted para (17B) of reg 7B of the Decisions and
Appeals Regulations provides an effective date where there is a
maintenance calculation in force and there is a further qualifying
child in relation to the non-resident parent and the person with
care to whom that maintenance calculation applies. Inserted para
(17C) of reg 7B of the Decisions and Appeals Regulations provides
explanations of terms used in para (17B) of reg 7B.

Regulation 6(3)
and (8)(a) amend the Child Support (Maintenance Assessments and
Special Cases) Regulations 1992 to reflect the change of name from
1 April 2003 of ‘invalid care allowance’ to
‘carer’s allowance’. Regulation 6(7)(c) amends
the same Regulations to provide that specified payments from local
authorities shall not be counted as income for child support
purposes and this amendment also comes into force from 1 April
2003.

The remaining
provisions of these Regulations come into effect the day after the
date that these Regulations are made. The amendments made by these
remaining provisions are to various sets of Regulations which
relate to the new scheme. Those sets will come into force at
different times for different cases, again as determined by
commencement order made under s 86(2) of the 2000 Act.

Regulation 7
amends the Child Support (Maintenance Calculation Procedure)
Regulations 2000. Regulation 7(2), (4) and (6) makes minor
technical amendments. Regulation 7(5) amends regulation 29 of the
Maintenance Calculation Procedure Regulations to clarify the
meaning of certain terms in that regulation. Regulation 7(7) makes
amendments which clarify and make additions to the transitional
provisions in the Maintenance Calculation Procedure Regulations and
inserts a provision to set the effective date of a maintenance
calculation in a case where reg 28(7) of the Child Support
(Transitional Provisions) Regulations 2000 applies (cases where a
conversion calculation ceases during the transitional period).
Regulation 7(8) and the Schedule add Sch 3 to the Maintenance
Calculation Procedure Regulations.

Regulation 8(3)
makes a minor clarifying amendment to reg 8(1)(a) of the Child
Support (Maintenance Calculations and Special Cases) Regulations
2000, which provides for persons to be treated as non-resident
parents where there is shared care of a child.

Regulation 9
amends the Child Support (Transitional Provisions) Regulations
2000. Regulation 9(2) amends two of the definitions in the
Transitional Regulations, to reflect the position in reg 31 of the
Maintenance Calculation Procedure Regulations. Regulation 9(3)
makes minor technical amendments to reg 3 of the Transitional
Regulations. Regulation 9(4) inserts a reference to reg 26 of the
Child Support (Variations) Regulations 2000 into reg 10 of the
Transitional Regulations, to bring cases to which reg 26 applies
within the scope of reg 10. Regulation 9(5), (10) and (11) makes
amendments to the Transitional Regulations for cases where there
are two or more persons with care in respect of one non-resident
parent and one or more person with care, but not all of them, had a
maintenance assessment under the current scheme or is not affected
by the phasing provisions in the Transitional Regulations.
Regulation 9(6) amends reg 15 of the Transitional Regulations to
make further provision for cases where the conversion of a case
from the current scheme to the new scheme will be triggered and reg
9(13) makes an amendment consequent upon the amendments made by reg
9(6). Regulation 9(7) and (12) makes minor technical amendments to
regs 16 and 28 of the Transitional Regulations, respectively.
Regulation 9(8) makes amendments to reg 22 of the Transitional
Regulations to provide for the amounts of child support maintenance
payable in cases within the scope of that provision. Regulation
9(9) amends reg 24 of the Transitional Regulations to provide for
the phasing amount which is to apply in a case to which reg 26 of
the Variations Regulations applies.

The Children
(Allocation of Proceedings) (Amendment) Order 2003, SI
2003/331

This Order makes
amendments to Sch 2 to the Children (Allocation of Proceedings)
Order 1991, which allocates care centres to petty sessions areas
grouped according to circuit. The amendments make Cambridge County
Court a care centre with effect from 1 April 2003.

The Child
Minding and Day Care (Suspension of Registration) (England)
Regulations 2003, SI 2003/332

These Regulations,
which come into effect on 1 April 2003, set out the circumstances
in which a person’s registration as a child minder or a day
care provider may be suspended by the Chief Inspector. They also
set out the circumstances in which the Chief Inspector must
consider lifting the suspension. The Regulations prescribe the time
limits for suspension and include the rights of appeal to the
tribunal established under the Protection of Children Act 1999.

The Child
Support, Pensions and Social Security Act 2000 (Commencement No 13)
Order 2003, SI 2003/346

This Order makes
further provision as to the coming into force of Part I of the
Child Support, Pensions and Social Security Act 2000. It amends the
provision made in an earlier Order as to the day appointed for the
coming into force of s 23 of the Act (which provides for s 10 of
the Child Support Act 1995 to cease to have effect) and the
associated repeal of that s 10 for the purposes of different
categories of cases where child support and other forms of
maintenance have been, or become, payable in respect of a child.
The Order takes effect on 3 March 2003, or from the next date on
which maintenance is payable after that date.

The Child
Support (Transitional Provision)(Miscellaneous Amendments)
Regulations 2003, SI 2003/347

These Regulations,
which came into force on 3 March, amend regulations which concern
revocations and savings consequent upon the introduction of changes
to the child support scheme under the Child Support Act 1991 made
by Part I of the Child Support, Pensions and Social Security Act
2000. The amendments made by reg 2 ensure that those revocations or
savings are to have effect subject to the provisions of the Child
Support (Transitional Provisions) Regulations 2000. Regulation 3
amends the Transitional Regulations to provide that for the
purposes of the Social Security Benefits (Maintenance Payments and
Consequential Amendments) Regulations 1996, which provide for the
interpretation of the term ‘child maintenance’ for the
purposes of s 74A of the Social Security Administration Act 1992, a
conversion decision made under the Transitional Regulations is to
be treated, on or after the case conversion date, as if it were a
maintenance calculation.

The Adoption
(Intercountry Aspects) Act 1999 (Commencement No 9) Order 2003, SI
2003/362

This Order brings
into force on 1 June 2003 s 7 of the Adoption (Intercountry
Aspects) Act 1999. Section 7 amends the British Nationality Act
1981 in respect of the acquisition of British citizenship by
Convention adoptions. The British Nationality Act 1981 extends to
the United Kingdom, the Channel Islands, the Isle of Man and
British overseas territories. This Order also brings into force on
1 June 2003 Sch 2, para 2 and s 15 in so far as it relates to that
paragraph. Schedule 2 makes minor and consequential amendments to
the Immigration Act 1971. The amendments to the Immigration Act
1971 extend to the United Kingdom, the Channel Islands and the Isle
of Man.

This Order enables
full effect to be given to the Hague Convention on the Protection
of Children and Co-operation in respect of Intercountry Adoption
which was concluded at the Hague on 29 May 1993 and it is the
intention that the UK will ratify the Convention on 1 June
2003.

Care
Standards Act 2000 (Commencement No 17
(England) and Transitional and Savings Provisions) Order 2003, SI
2003/365

This Order brings
into force, certain provisions of, and repeals made by, the Care
Standards Act 2000 The Order primarily relates to provisions
concerning the registration and inspection of voluntary adoption
agencies and the inspection of the exercise by local authorities of
their relevant adoption functions, within the regulatory framework
of the Act with effect from 30 April 2003. Voluntary adoption
agencies are currently approved under s 3 of the Adoption Act 1976.
The Order also brings into force the amendments made by the Act to
the Adoption (Intercountry Aspects) Act 1999 that are consequential
on the registration of voluntary adoption agencies under the
Act.

The Adoption
and Children Act 2002 (Commencement No 3) Order 2003, SI
2003/366

This Order brought
s 16(1) to (4) of the Act into force on 25 February 2003, and the
remainder of the section on 30 April 2003, as respects England, in
relation to the functions conferred on registration authorities
under Part II of the Care Standards Act 2000 and under the Adoption
Act 1976. Section 16 amends the Care Standards Act 2000 and the
effect is to enable the registration of voluntary adoption agencies
under Part II of that Act. Article 2(2) of this Order brings into
force on 10 March 2003 as respects England and for the purposes of
making regulations in respect of adoption support services, para 3
of Sch 4 to the Act. Article 2(6) brings para 3 of Sch 4 fully into
force as respects England on 6 October 2003. Article 2(3) of this
Order brings into force on 1 April 2003 as respects England and
Wales, para 12 of Sch 4 to the Act for the purposes of making
regulations in respect of bringing children into the United
Kingdom.

Article 2(5) of
this Order brings into force on 1 June 2003 as respects England and
Wales:

—  s 87(1)(b) and (4) of the Act.
The effect is to exclude Convention adoptions from falling within
the definition of ‘overseas adoptions’ for the purposes
of the 1976 Act;

—  s 135 of the Act. That section
amends the Police Act 1997 (c 50) in relation to criminal records
as respects adoption and fostering;

—  paras 10, 11(a), 12 (except in so
far as it inserts sub-ss (9) and (10) into s 56A of the Adoption
Act 1976) and 13 of Sch 4 to the Act. These provisions relate to
adoptions with a foreign element;

—  para 14 of Sch 4 to the Act
amends s 58 of the Adoption Act 1976 (which provides for
restrictions on the publication of advertisements) so that
publishing an advertisement includes doing so by electronic
means.

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