You may not have noticed amidst the horsemeat hysteria and gay marriage news - but the Children and Families Bill was published this week. I haven't had time to do more than glance at the Bill, but it looks more or less as we expected it to. The Bill will introduce a presumption of parental involvement, cap care proceedings at 26 weeks, put restrictions on the use of experts on a statutory footing and abolish residence orders in favour of child arrangements orders (although child arrangements orders include those which say where a child will live which is a residence order in all but name).
Having read a little bit about the rather unpopular bedroom tax this week I was struck by the way that the approach of two different government policies in separate areas appear to be in tension with one another. There is lots of criticism of the bedroom tax, but I'm interested in the impact on separated parents and their children (and on foster carers although I don't deal with that here).
The C &F Bill is borne of an aspiration to ensure both parents are involved in a child's life (this blog post is not the place to argue whether it will achieve that). From what I can tell the bedroom tax may well make it less economically viable for a separated parent who is not the main carer (by which in this context I mean less than 50% of the time) and who is living in social housing to have overnight contact or shared care. The difficulty already exists for parents in private accommodation who are in receipt of housing benefit because of the way that is worked out based on "need", but the bedroom tax will mean that some parents in social housing who currently have a spare room that their children stay in may find it very difficult to continue in that accommodation, and by extension to develop or maintain extensive staying contact or shared care. In short separated parents in such accommodation will be treated as over-housed and taxed on the bedroom the kids stay in.
The benefits rules operate on a binary basis, they don't fit well with shared care or flexible arrangements - when it comes to child benefit, child tax credits and no doubt other benefits, only one parent can be the primary carer, and from that entitlement flows. Some parents in shared care arrangements agree to apportion the child related benefits between them, but this is of course only helpful where there is goodwill between parents. So one can envisage cases where parents situations are polarised - at one end the resident parent is in receipt of child benefit, child tax credit, full housing benefit with no bedroom tax, child support (not significantly reduced by overnight stays) and has accommodation adequate for self and children, whilst the non resident parent is unable to secure or to maintain accommodation large enough for anything more than occasional overnights on a put up bed or sofa, and is liable for child support without reduction based on overnight stays (probably theoretical rather than actual as most HB recipients will be paying minimal CM). And of course if you are a dad stuck in a pokey 1 bed flat the reality is that you need to take the kids out and that costs money (or careful planning and identification of free or cheap activities). The alternative for the non resident parent who wishes to achieve or continue a shared care arrangement involving substantial periods in his home is to somehow absorb the bedroom tax in order to obtain or maintain suitable accommodation, but then he is left with the cost burden of maintaining and entertaining the child whilst in his care with no recognition or support from the state reflected in his benefits. OR....And this is what worries me - the other alternative is to go for broke and say "Well if I want a really meaningful relationship with my children I'll have to go for sole majority care".
Of course this rigidity in the benefits system and the mismatch with real life and the flexible approach in the Children Act is not new, but the possible knock on effect of the bedroom tax is an illustration of how there are multiple factors at play when we think about how we make aspirations for the full involvement of both parents in a child's life a reality rather than a promise.
It is not inconceivable to suppose that for some families where it might otherwise be entirely workable and suitable, shared residence will not be economically feasible - and that this could lead to litigated residence disputes because the benefits system has forced the parties into a winner takes all mentality. It's not uncommon to hear parents complaining that "s/he only wants residence for the benefits or to get a property" or "he only wants overnights so he can reduce his CSA payments" (often in high conflict cases this is preceded by the startling assertion that "s/he doesn't love them at all" ). More often than not such assertions are the conflict talking, and of course people's motivations are quite complex and multilayered. But for parents who desperately want to be able to provide for their children, to be able to spend time with their children, to regularly put their kids to bed and to eat breakfast with their children - the economics of it are important.
Of course the scenario I'm describing won't apply in all cases, and probably not in many. But it does feel odd that whilst the Government is saying it wants both parents to be fully involved in a child's life, which proposes to blur the current distinction between residence and contact by abolishing the labels in a drive to get parties to focus on the actual arrangements that would best suit the child in question; that things like the bedroom tax may in effect make it harder for the court to make orders that fall in the middle of that spectrum between residence and contact, by which I mean arrangements involving a substantial amount of overnight stays with the "other" parent that might currently be called shared residence. I just wonder if there might be a few more families for whom some of the options on the menu are greyed out.
Footnote : yes, I've referred to the non-resident parent as "he" throughout most of this post. In reality we are most often talking about dads, but of course not always.