I remember long ago my heart sinking (along, I’m sure, with the hearts of many other family lawyers) when I heard that the government, in its infinite wisdom, had chosen to link the issues of how long a child stayed with each parent and how much child support, if any, should be paid. We could all foresee endless arguments between parents over how much time their child should (or does) spend with each of them, driven not by what was best for the child, but by a desire to increase or decrease the amount of child support that is paid – see, for example, this case.
Under the current, 2012, child support scheme the culmination of these arguments is whether the child spends more time at all with either parent, as if they do not, then neither of them is a ‘non-resident parent’ (NRP), and neither has any liability for child support maintenance. This was the issue in the recent Upper Tribunal case JS v Secretary of State for Work and Pensions and another (CSM) (Child support – maintenance assessments/calculations).
The judgment in the case refers heavily to certain regulations, and my summary will too. Accordingly, before I go through the case I should explain what those regulations are about.
As mentioned, this case was dealt with under the current, 2012, child support scheme. The scheme is governed in particular by the Child Support Maintenance Calculation Regulations 2012. We are concerned here with regulations 46, 47 and 50.
I will begin with regulation 50, as that is the one that deals with shared care cases. It states that where the person named in a child support application as the NRP shares the day to day care of the child with the applicant, they are only to be treated as the NRP if they provide day to day care to a lesser extent than the applicant. In other words, if they share care equally, they are not an NRP, and are not therefore liable to pay child support.
Regulations 46 and 47, on the other hand, deal with something slightly different. They relate to the situation where there is an NRP, but the child spends time with them, so that the NRP’s liability for child support is reduced. For this purpose regulations 46 and 47 use the number of nights per year that the child spends with the NRP so that, for example, if the child spends 52 to 103 nights per year with the NRP the child support is reduced by one- seventh, and if the child spends 175 or more nights with the NRP (but less than equal shared care), the child support is reduced by one-half.
OK, so to the case. In it, the father had been required to pay child support of £55.14 per week in respect of his son, ‘S’. This had been calculated on the basis that he had care of S for 175 nights or more. He contended that he shared the care of S equally with the mother in accordance with an agreement with the mother, and so should not be treated as an NRP at all, with the consequence that he should not have any liability for child support maintenance. He therefore appealed the decision, to the First-tier Tribunal.
The First-tier Tribunal found against him. Whilst it accepted that the parents had agreed that the care of S should be shared equally, this had not actually happened, as there were a number of nights when S was in his father’s care but did not stay at the same address as his father (as required by regulation 46), for example when the father left S in the overnight care of his new partner. Accordingly, care was not shared equally, the father was therefore an NRP, and his appeal was dismissed.
The father appealed again, to the Upper Tribunal. The Upper Tribunal held that the First-tier Tribunal had made an error in law, in that it had wrongly applied regulations 46 and 47 to the regulation 50 question. Regulations 46 and 47 deal with a separate issue from the issue of whether there was shared, equal care, and look in particular at the question of how many nights per year the child spends with the NRP – regulation 50 is not concerned with that, only with the issue of day to day care of the child. Regulations 46 and 47 should only be considered if there was not equal shared care, pursuant to regulation 50 – i.e., where there is an NRP.
Accordingly, the father’s appeal was allowed, and the case was referred back to the First-tier Tribunal for rehearing.
You can read the full report of the case here.