Here we go again.
I wrote here last August: “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”
That post related to a case in which a father had claimed that he should not be liable to pay child support maintenance because his son shared his time equally between both parents. Now, another case has been reported on the subject of shared care, JS v Secretary of State for Work and Pensions and ZS, in which the argument related to how you calculate the amount of time the child stays with each parent.
Just to recap, under the present, 2012, child support scheme where the child stays overnight with the ‘non-resident parent’ (‘NRP’) for on average at least one night a week the amount of child support maintenance that the NRP has to pay is reduced. And the amount of the reduction increases with the number of nights the child stays with the NRP, so that if it is between 52 and 103 nights each year it is reduced by one-seventh if it is between 104 and 155 nights each year it is reduced by two sevenths, and so on. If care is shared equally, then there is no child support maintenance liability at all.
Now, it may be fairly easy to work out how many nights each year the child is going to spend with the NRP, in particular, if there is a court order or written agreement specifying the arrangements, and the parties have kept to the terms of the order or agreement. But what if, as will surely be the situation in most cases, there is no court order or agreement? In such cases, the Child Maintenance Service can take into account the pattern of shared care that was established over the previous twelve months.
In the JS case, there was no court order or agreement. However, the parties were it seems in agreement as to the pattern of care over the previous twelve months. For eight of those months, the child had stayed with the NRP father for five nights each fortnight. However, for the other four months, the arrangements had been quite different, due to the mother’s work commitments. During that time the child spent so much time with the father, that the father claimed he would have had no liability at all.
So how would this pattern of care affect the calculation of maintenance, in terms of the amount of any shared care deduction? Unfortunately, the report of the case does not give any figures, so the answer is not entirely clear. What we do know is that if the twelve-month period was taken into account as a whole then the resultant figure would have been higher than if the four-month and eight month periods were taken separately, as the father argued they should have been under the rules.
Whatever the figures, the First-tier Tribunal found against the father. It held that the shared care deduction should be based upon the whole twelve-month period, which levelled out the ‘peaks and troughs’ and produced a result which was “fair and equitable to both parties in the spirit of the regulations”. The father appealed to the Upper Tribunal, but his appeal was disallowed.
Time has proved that our worries about linking the issues of how long a child stayed with each parent and how much child support should be paid were well founded. This was far from the first reported case where the matter was argued, and nor will it be the last. At least, in this case, there was no suggestion that the arrangements for the child were altered (by either parent), with the aim of reducing or increasing the amount of maintenance payable.
Still, the complex rules on the subject once again proved to be more of a hindrance than a help to resolving the matter, providing as they did an uncertainty, and therefore a point of argument. The amount of time a child stays with an NRP should, of course, affect how much maintenance they should pay, but linking the two things with rigid and complex rules was always a recipe for trouble.
You can read the full report of the case here.