Child maintenance is a tricky area. The regulations are multiple and complex. We do not get many cases reported but we have recently had a very interesting case from the Upper Tribunal.
When dealing with child maintenance, one of the key ‘issues’ is very often the overnight stay deductions. The other is the income to be used. The current system uses gross income less pension deductions for the parent who is to pay maintenance. There is then a deduction allowed from the full assessment figure if the paying parent has the child ‘overnight’, according to the Child Maintenance Service calculation on the government website.
What this case is about is should the consideration be overnight stays or something else? What about where one parent collects the child, say, 30 minutes before bedtime and then takes them to breakfast club the next day? What if on one of ‘their’ nights overnight, the parent drops the child off to grandmas? What about where one parent is saying everything is 50/50 and the other parent disagrees?
This case concerned separated parents who share care of their child. The issue for the Tribunal was whether one parent was providing “day to day care to a lesser extent” than the other for the purposes of regulation 50(2) of the Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677). This is important because where one parent is provided care to a ‘lesser extent’ then that parent would have a maintenance liability – i.e. they would be assessed to pay maintenance to the other parent as the ‘non-resident parent’.
The Upper Tribunal reviewed the case law on this regulation and provides guidance as to the approach to be taken in such cases. The Upper Tribunal held that the Tribunal in this case erred in law by (among other things):
(i) confining its consideration of the amount of “day to day care” provided to the question of the number of hours during which each parent is responsible for the child, rather than considering how much practical care is provided by each parent;
(ii) failing to make findings of fact in relation to many of the significant elements of care that were in issue between the parties including alleged differences in terms of school pick-ups and drop-offs, holidays, meals and provision of clubs; and
(iii) treating additional nights’ care as a ‘trump card’.
Case remitted for rehearing. This is the headline summary and the case itself makes very interesting reading about how day to day care would be considered. The case itself has a deeper consideration of what day to day care means. Importantly, it was noted day to day care involves more than the mere counting of days and nights; it involves the exercise of judgment in respect of parenting tasks and responsibilities. There is an extensive list of factors/considerations for deciding what day to day care means.
In addition, the judge made two important observations about the current situation of the case law:
a. It better reflects the reality that care of a child does not normally stop at the point that the child is left with a childminder, dropped at an after-school club or left to spend the night with a grandparent. The arrangements made for care are themselves part of day to day care, requiring effort and sometimes money, and the parent will normally remain ‘on call’ during those times and, in the case of a child with additional needs, may in fact be called on with some frequency.
b. It enables financial commitment to be taken into account (up to a point) because a parent who pays for care to be provided by others is maintaining their child during that period. It is appropriate given that the legislative scheme deals with responsibility for the financial maintenance of children (and not responsibility for the care of children) that the law should not ignore financial responsibilities for a child that each parent has assumed. However, in making that observation, I emphasise (consistent with all the Upper Tribunal decisions I have referred to) that it does not follow that the amounts of money spent by a parent on a child are relevant to the regulation 50(2) assessment. They are not. All that is relevant is the amount of care that is provided, but in assessing that the Tribunal must take into account that the making of arrangements for care to be provided (whether paid for or not) is part of day to day care. The weight to be given to such periods of care is, however, a matter for the Tribunal to assess in each case. They are unlikely to weigh as heavily in the balance as periods during which care is provided personally by the parent.
Who claims and receives the child benefit can be determinative as to who is the parent with care (and able to claim the maintenance), unless there is evidence brought that the day to day care that contradicts that but it is up to the person claiming that they have day to day care to prove it.
So, all clear then? The case is HERE
If you need help on a child maintenance matter, please contact us.