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Determining whether care is shared for child support purposes

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.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Mr T says:

    This is simple. Equality. No support. Take it out of the equation completely. Give the responsibility to the parents to actually communicate and PARENT instead of the state forcing (mainly) men to pay women for not seeing \ having their kids overnight. It’s a disgusting archaic outdated piece of law that needs abandoning. Let alone so some fat cat in the DWP can get statistics that say x amount of children are now out of poverty.

    It’s not the governments’ responsibility to bailed women who make bad decisions or seperate because they just wanted a child and now just want to have a child without the father but be paid for the privilege.

    This law is destroying the family unit and is probably responsible for the suicide rates of men.

  2. Paul says:

    When they designed these schemes they always seem to over look the very real possability the women will abuse and missus the scheme. However well intended the changes might be.
    I think this is due to the femanist element in political system who continually work on the assumption women are made of sugar and spice and all things nice and are beyond taking responsability for their actions.
    The almost unannimous trend set by the scheme you laid out above was for women to stop visits to the father so her CSA payments were at their fullest. Ushually in a calous and cruel way which lead to the man involved getting fustrated an in trouble with the police.
    Now we know that the well intended femanist measure of ensuring our poor abused women get a privoliged status and receive access to legal aid when others do not. We have now seen an avolanche’ of Domestic violence allegations.
    Can we please now all agree that in times of seperation it is clear women will clearly act selfishly and with little concern for her expartner. They will act out of greed to boost their innxome. Disregarding any negative effects on her expartner. However reproachable or distastful these measures are.
    I can’t tarnish all women with this brush. However we have crystal evidence now that a majority of them will act malicously.
    I would be very interested to hear what the judiciary feel about immoral actions women are clearly taking ?

  3. Mr T says:

    I don’t have any issues of providing for my children as long as:

    a) I get what I want in terms of equal care instead of having to spend thousands of £ to get the minimum
    b) I feel like the money (if any) I pay is being used on the children

    Solve these two issues and you solve this problem, simple.

    • spinner says:

      As there are rules governing percentages to be paid for child support I don’t see the issue with having rules for how that money is being spent. If there are problems then the only people suffering are the children which we are constantly told this system is as it is to safeguard the children, not the mother.

  4. Kingdom says:

    I’m a separated mother and parent, I’m also a high earner and I’ve been assessed for a high amount of monthly child maintenance despite the fact that the children spend equal time with me overnight and despite the fact that i pay for many things outside of the maintenance every month. I accept it’s rare to have the mother assessed, but I still find the CMS is woefully under skilled in terms of technical knowledge. The online child maintenance calculator for example doesn’t explain that for truly equal care there should be no amount assessed at all. I am in the process of appealing the CMS decision, which is based solely on the fact that the children spend 175 nights a year or more with me and that he gets the child benefit. This case has proved a precedent that child benefit should not be the deciding factor and I am willing to take my own case to tribunal to test it. By the way, my kids are my world and I support them in every way not just financially. It is the CMS that are wrong I think in my case.

    • Boris says:

      Kingdom, I would love to know how your case progressed, being a father in exactly the same position as you.

    • Boris says:

      I just wondered how your case ended up, I am in a similar position to you, and the whole process is less than helpful and actually archaic

      • Another disgruntled dad says:

        Same situation 50/50 single dad who does all the day to day care but forced to pay CMS. I am off to tribunal too. In my opinion CMS should stay out of 50/50 court ordered cases as it causes too many problems. If it’s 50/50 court ordered then there are already issues within the dynamic or it wouldn’t have ended up in court. And let’s be honest a dad doesn’t normally end up with 50/50 unless there’s a precedent that dad has been the primary carer or mum had misbehaved.

  5. Broken says:

    @kingdom how did your case go? And anyone else in this situation? I’m in a very similar position with 50:50 shared care. I am the high-earner forced to pay CMS as he gets the child benefit but does barely any day to day care, and I pay for absolutely everything our child needs. I’m about to apply for a tribunal, as the CMS rejected my request for mandatory reconsideration. I would love to know how you all got on.

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