It may have been a bit thin for new family law cases of late, but there have been a couple of interesting child support decisions.
The one that I want to mention here deals with a situation which must, sadly, be relatively common: where the parent with care (PWC) is in fear of intimidation from the non-resident parent (NRP). The typical scenario is not difficult to imagine: the PWC wants child support and therefore makes an application to the Child Maintenance Service, and the NRP doesn’t want to pay. The NRP therefore intimidates the PWC in an attempt to persuade her to drop her application. The NRP may have abused the PWC in the past, and the PWC may have obtained a non-molestation order against the PWC, as had occurred in WA v Secretary of State for Work and Pensions & Another (Child support: tribunal practice).
The case concerned a dispute regarding the parents’ proportionate responsibilities for their three children. A contact order provided for the two younger children to spend approximately 100 nights with their father, the NRP, annually. However, their mother, the PWC, claimed that the children in fact stayed to some extent in their paternal grandmother’s home, rather than being cared for by their father. When the NRP’s child support liability was determined, the Secretary of State decided in favour of the mother. The father appealed against that determination.
When the dispute went to the First-tier Tribunal (FTT) the PWC wrote to the Tribunal giving her written evidence but saying that she was “unable to attend the appeal due to the volatile nature of my previous relationship with [the NRP] which involved threats to my life and a harassment order being issued to him by the police”. She also made allegations against the NRP of threatening and abusive behaviour. The hearing went ahead, with the NRP attending but not the PWC. The Tribunal found in the NRP’s favour, based upon his evidence at the hearing. The PWC appealed to the Upper Tribunal, claiming that the NRP had lied to the FTT, that her written evidence was given very little attention and that she was discriminated against purely because she wasn’t present.
The Judge of the Upper Tribunal found that the FTT had erred in law in that it did not explain (as it should have done) why it was in the interests of justice to proceed with the hearing in the PWC’s absence. He said that the FTT should have sought a case management solution that would have given both parties a reasonable opportunity to attend the hearing, and found that it was “profoundly wrong” that the FTT had ignored the issue of the PWC’s fear of intimidation. Accordingly, he ordered that the FTT re-hear the appeal and that prior to that the PWC write to the FTT explaining what steps would enable her to attend the re-hearing, and why.
The Secretary of State requested the Upper Tribunal Judge to give guidance about how the FTT should tackle child support cases where one party appears unwilling to attend a hearing because s/he is scared of being intimidated. The Judge made the following points:
- The Tribunal is not required to conduct a mini-trial of the question whether a parent’s expressed concerns about attending a hearing are genuine. However, it must address the issue if it arises and if the Tribunal duly considers the assertions not to be fanciful it must consider what case management and/or hearing management steps should be taken to give all parties a reasonable opportunity to put forward their cases.
- There are many steps that the Tribunal could take, but a sensible first step, where the issue is raised in advance of the hearing, would simply be to write to both parties to stress that everyone has the right to attend a hearing without fear of intimidation and that the Tribunal will not tolerate any attempt by one party to intimidate the other. While this may not be necessary in every case, it is also open to the Tribunal to set out in writing the steps that can be taken to assist a party to participate and invite them to request that a particular step is taken and why.
- Examples of steps that the FTT can take include the presence of a security guard in the hearing room, attendance of the party by telephone link, laying out the hearing room in a particular way to create physical separation or possibly use of screens if available, and staging the parties’ entrance and departure from the room, and their waiting arrangements, to minimise proximity.
- The question of what steps are appropriate is a case management issue for the tribunal judge/s involved in the case, to be determined prior to the hearing.
The full report of WA v Secretary of State for Work and Pensions can be found here.
Photo by Niklas Morberg via Flickr