Internal Relocation and Special Expenses Variations

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Internal Relocation – An alienating strategy

Upon the breakdown of a parental relationship it is seemingly not uncommon for one party to attempt to place distance between themselves and their former partner/spouse.

When this happens ‘within the country’ it is known as “internal relocation” or “relocation within the jurisdiction”. On the face of it such a relocation may not appear to be a problem, however, when you consider that a person is seemingly able to move a child to the other end of the country (or to a place that can make Alpha Centauri seem like it’s just around the corner),  distance suddenly becomes a barrier to parenting and can have a devastating effect on the child’s relationship with the left behind parent.

If you have parental responsibility then the other parent should consult you on such a move in advance of the relocation taking place. This is to seek your agreement and work out any child related issues around how the children will be able to maintain their healthy relationship with you.

However, this does not happen in a number of cases with parents taking a unilateral decision. Once it’s done then it becomes even harder to untangle than if preemptive action is taken up front. It is likely to be a long and potentially very expensive battle to prevent the move so it’s often best for both parties to try and come to an agreement (possibly through mediation). The agreed terms can then be placed into a consent order that will be enforceable if either party breaks it. If it is is not possible to reach agreement then the only way to prevent a move of the children is with a Court Order.

In the first instance, you should fill in a form C100 (you can find a copy here) asking for an urgent hearing to apply for a Prohibited Steps Order (Under Section 8 of the Children’s Act). Filing the form with the Court will cost £215.  You should seek an order that prevents the children moving; so asking (for example) that the court order that the children not be removed from their current school without your written consent is one way to go. Remember that once you embark on this route there will likely be hearings to be held, evidence to be filed etc so please do go into this with your eyes open and prepared for the stress and costs associated with entering the UK Family Court system.

The Courts will have regard for a piece of legislation contained in Section 1, paragraph 3 of the 1989 Children’s Act (commonly referred to as the “Welfare Checklist”). This checklist contains 7 criteria that purport to consider the “Best Interest” of the children:

You can read more about the Welfare Checklist here.

It is however,  worth emphasising that “Best Interest” is not defined anywhere in law so this is a very subjective area.

The court will likely involve CAFCASS (Children and Family Court Advisory and Support Service) who are social workers (known as Family Court Advisors) and act as the the “child’s representative”.  Many FCA’s have little relevant training in the areas that they are being tasked to report on. They will typically write a “Section 7” report or one of the new “Child Impact Assessment” reports to “inform” the Court. Throughout the course of this process (which can take several months) the option is open to the parties to come to an agreement. Failing that, a contested hearing (1-2 days) will likely be ordered and you will get the chance to give evidence and cross examine the other side. For those who wish to understand more about what the courts will consider it is worth familiarizing yourself with the 2015 judgement of “Re C” (EWCA 1305) . This was an Appeal Court case where a father was appealing a decision to allow his child to be relocated from London to Cumbria.

It was mentioned at the beginning that it is typically very difficult to prevent internal relocation from happening so, should relocation happen then the child is likely be be exposed to a sub optimal contact regime and you should plan for significantly increased costs which the court will likely expect you to meet.

Such a relocation will have further consequences for you if you pay child maintenance through the statutory scheme or Child Maintenance Service.

Firstly, following the relocation you will likely see an increase in your maintenance payments to the other party as a result of decreased overnight contact. We cover this element of the Child Maintenance formula elsewhere on the site. You can find a link to that piece here.

Secondly you should be aware of the mechanism that the Child Maintenance Service uses for “Contact Expenses” by way of their “Special Expense Variation“. We will have much more detail on this in the near future but in summary here are the main points you need to know:

  • Your expenses must be greater than £10 per week in order to qualify for a variation (if it meets this threshold then the entire expense will be considered).
  • If you drive, the amount the CMS should calculate as your “cost” will be based on the lower of whatever you report OR (if contested by the other party) they will use 2013 HMRC advisory fuel rates  for company cars. The latest HMRC advisory fuel rates can be found here.
  • CMS will then take the total cost of the expense off your gross salary and then run the maintenance calculation again.

The effect of their mechanism is perhaps best illustrated with a simple example:

  • Non resident parent has gross income of £900 per week and pays for 1 child.
  • Total number of nights per year the child stays with the Non Resident Parent (NRP)  = 58
  • Maintenance per week would be £90 (390 per month) if no variation was applied for.
  • Assume that the Resident Parent with the child relocated 200 miles away and the NRP spends 1 weekend per month with the child (a 400 mile round trip).
  • CMS would take the total monthly mileage (400) and multiply it by their company car rate (11p per mile for example). This would produce a “cost” of £44 per 400 mile round trip.
  • £44 would then be deducted from the monthly gross income (and the maintenance figure would fall to £89 per week).
  • Put another way, the total cost of the contact expense is £528 per year (£10.15 per week). The total maintenance “discount” is £52 per year (9% of the cost incurred, leaving the NRP to pay the other 91% of the cost).

Looking at the effective rate per mile the figures become clearer still. 400 miles per month equates to 4,800 miles per year. The CMS “discount” equates to £0.01 per mile. That’s right, 1p per mile. By way of contrast, both the DWP staff and MP’s themselves can claim 45p per mile when using their vehicles (so they would claim £2,160 for the same mileage). The AA cost of mileage rates for petrol cars can be found here with diesel rates here.

The Minister responsible for the Child Maintenance Service is Caroline Dinenage MP (Parliamentary Under Secretary of State for Family Support, Housing and Child Maintenance).

During the last Parliament she claimed a total of £3,150.25 in personal travel expenses (£1,772.10 of which was using her own vehicle at 45p per mile). An additional £155 was claimed on “Dependent Travel” which appears to be rail fares for her children. Her full expense records can be viewed here.

Ms Dinenage’s predecessor, Caroline Nokes MP also claimed a considerable amount in personal travel in the 2016-2017 Parliamentary Session. £5,995.30 in personal travel expenses (£4,710.50 which was using her personal vehicle) and £150 in Dependent Travel.

Interestingly, these MP’s are putting in individual claims for amounts as low as £1.25 (Caroline Nokes) or £1.80 (Caroline Dinenage).

It should be noted that responding to a recent request made under the Freedom of Information Act the DWP confirmed that the choice to use company car rates (as opposed to the HMRC mandated personal vehicle rates) was a DWP Policy Decision. DWP was not able to produce any documentary evidence around the formulation of this policy, who was involved in the discussions and who, ultimately, is responsible for approving the decision.

The policy decision to use HMRC Advisory Fuel Rates is to enable clear comparison to be made based on engine size of the car and fuel. It’s important to note that this is used for reference when determining whether or not the cost the Paying Parent is claiming is reasonable.

Variations are the “new name” for what was previously called “Departures” (from the basic formula). The contact cost element was introduced into the Child Support, Pensions and Social Security Bill (which became the Child Support, Pensions and Social Security Act 2000). During the debates being held by MP’s during the Bills passage, Angela Eagle MP, who was the then the Parliamentary Under-Secretary at the Department of Social Security (the precursor to the DWP) said the following about the rationale for introducing the variations for contact costs (you can read the full debate here):

we intend to extend the nature of contact-related expenses that we are prepared to recognise, albeit not as widely as amendments Nos. 82 and 226 propose. The allowance for contact costs in the departure scheme is restricted to travel-related costs only: that is, fares, petrol costs or tolls. No allowance is made for the cost of overnight accommodation. We intend to prescribe that non-resident parents with particularly difficult or arduous journeys will be able to claim the costs of essential overnight stays in appropriate cases. That is evidence of our commitment to shared parenting.

– Angela Eagle MP

So, there you have it, the Government introduced the variations to show their “commitment to shared parenting”.

It seems obvious that the government (and their agents at the DWP) have not placed much value on a child’s need to have 2 fully involved parents in their lives.

The already bad (adult-centric) outcomes produced by the Courts are compounded by the mathematically illogical way that the Government (aided by Parliament) and the DWP have drafted, debated and enacted the legislation around monetary Child Support.

This makes it very difficult for children to experience the care and love of both parents; all supported by Government policies and political indolence. Commitment indeed…..

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