“This appeal is about the bright line rule that applies to shared care in the child support system. The present appeal is, in many ways, an exemplar of what many critics say is wrong with the statutory child support scheme. Two obviously intelligent and articulate parents are arguing over a matter of a night or two of shared care over the course of a year.”
So begins the decision of Judge of the Upper Tribunal Nicholas Wikeley in JH v Secretary of State for Work and Pensions and LH. I suppose there is nothing particularly unusual about intelligent couples arguing over petty things following their separation, but the odd night of shared care here or there does seem especially trivial.
The problem, of course, is that the outcome of that argument can have consequences that are not quite so trivial. As Judge Wikeley goes on to explain, the child support scheme operates quite differently to the way that the family courts work. In the family courts there are no prescribed outcomes. Judicial discretion is the order of the day, with the judge having a broad range of possible outcomes available to him. The child support scheme, on the other hand, operates on the basis of rigid formulae and rules. There is little or no room for discretion.
One such rule relates to the number of nights the child spends with each parent. For the benefit of those who don’t know, the amount of child support payable by the non-resident parent (‘NRP’) is decreased if the child stays with them for at least 52 nights a year, or one night a week. The amount of the decrease depends upon how many nights a year the child stays with the NRP, as follows:
Band 1 – 52 to 103 nights: 1/7th
Band 2 – 104 to 155 nights: 2/7th
Band 3 – 156 to 174 nights: 3/7th
Band 4 – More than 175 nights: ½
Obviously, the higher the amount of the child support, the higher the reduction will be. Accordingly, whilst there may be little practical difference financially between a child staying with the NRP one more night, if that takes the number of nights over one of the thresholds, there can be quite a difference in the amount of maintenance paid. There is little or no ‘discretion’ built into the system.
In this case the argument between the parents was whether the case fell within Band 3 or Band 4, with the difference between the parents just two nights a year (the NRP father claimed it was 176 and the parent with care (‘PWC’) mother saying it was 174). Unless I missed it somewhere in what is quite a long judgment, the full amount of the child support is not stated. However, by my calculation it was £177 per week. Accordingly, if this is right the difference between Band 3 and Band 4, and the amount the parents were arguing over, was the princely sum of £12.64 per week. OK, that does mount up, to over £50 a month, and over £650 a year, which could obviously make a considerable difference, both to the NRP and, possibly more so, to the parent with care, who receives the maintenance.
The case went to the Upper Tribunal when the NRP appealed against the First-tier Tribunal’s decision that the case fell within Band 3.
Now, there is no way that I am going to go into the complex details of the argument between the parents over how many nights their daughter spent with each of them, as if I did so both I and anyone reading this post would probably lose the will to live. Suffice to say that the problem arose in connection with the next, last, step in the calculation process: how do you work out the number of nights the child spends with each parent?
The rules in respect of this last calculation are complicated – another result of having a non-discretionary system, in which everything has to be covered by detailed rules. In fact, the rules are so complicated that the First-tier Tribunal got the calculation wrong. Accordingly, the Upper Tribunal found that the First-tier Tribunal had made an error, and therefore allowed the NRP’s appeal and set aside the First-tier Tribunal’s decision.
However, all of this turned out to be in vain for the NRP, as the Upper Tribunal proceeded to re-make the decision and, via a different route, came to the same conclusion as the First-tier Tribunal. Accordingly, the amount of maintenance payable by the NRP remained the same.
If you really want the details of how to calculate how many nights a child spends with each parent then you will need to read the report of the case, which can be found here.