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Equally shared care of children: a pyrrhic victory if for financial motives?

Date:17 DEC 2015
Many family law practitioners will have experience of cases where one parent (usually the father) presses strongly for equal shared care of the children and there is at least a suspicion that part of the motivation is to reduce the amount of child maintenance which would be paid under the formula set by the Child Support Act 1991. It is very well known that the assessment of child maintenance is reduced by reference to the number of nights the child spends with the non-resident parent in a prescribed 12-month period. So, less than 51 nights results in no reduction, 51-103 nights results in a 1/7th reduction, 104-155 nights results in a 2/7th reduction and 156-174 nights results in a 3/7th reduction.

What if the parent who is not the applicant to the CSA has exactly the same care of the children as the 'person with care', or even more than the person with care? The Child Support Act 1991 specifically provides that there may be more than one person with care in respect of the same child (s 3(5)). However, the Act also defines the non-resident parent as a parent who is not living in the same household with the child and the child has his 'home' with a person who is, in relation too the child, a person with care (s 3(2)). There is a degree of circularity in these provisions. What if the child has 'his home' with both parents so that the child lives 'int he same household' with each parent at different times? Clearly, those are very difficult matters to resolve in cases where the time is shared exactly between the two households.

No doubt in an effort to resolve some of those difficulties the Child Support Maintenance Calculation Regulation 2012 introduced a provision at regulation 30. Its key provision read as follows:

(1) Where the circumstances of a case are that:

(a) an application is made by a person with care under section 4 of the 1991 Act; and
(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant, 

the case is to be treated as a special case for the purposes of the 1991 Act.
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.
(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.
(4) For the purposes of paragraph (3), where a person has made an election under section 13A(1) of the Social Security Administration Act 1992 (election not to receive child benefit) for payments of child benefit not to be made, that person is to be treated as receiving child benefit.

We can unpack this as follows:

  1. There is presumption that the person in receipt of child benefit (or who would be in receipt but for having elected not to receive it on the grounds of high income eligibility and taxation) provides day to day care to a greater extent than any other person;
  2. That presumption can be rebutted by evidence which shows that the person named in the application as the non-resident person does not provide care to a lesser extent than the applicant;
  3. If that evidence the case becomes a 'special case';
  4. The consequences of this 'special case' arising are those set out in subsection (2), namely that the person named in the application is not a non-resident parent.

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Clearly proving that the person named in the application does not provide care to a lesser extent than the applicant may not be very easy. The mere fact of an equal number of nights of care does not, in my view, result the day to day care is equal. In the event of any doubt the presumption casesd ont he receipt of child benefit will kick in. It seems doubtful that there will be many cases where the CSA or a Tribunal finds that the care was exactly equal. But what are the consequences of satisfying the CSA that the care is at least equal? That may be the case in a situation where the child arrangements order specifically recites the agreement between the parties that they share the day to day care equally.

First and foremost, of course, the respondent will not be a 'non-resident parent' and so no child support maintenance calculation can be enforced against him. That much seems to be very clear.

Secondly, if the care is shared but in fact the person named in the application has more than half of the day to day care the position may be reversed so that he can apply for a child support assessment against the other parent.

Thirdly, in the event that the care is deemed to be absolutely equal, so that neither provides day to day care to a lesser extent than the other, the position is somewhat more complicated. One view is that the CSA would make a 'nil assessment'. Others take the view that the absence of a non-resident parent means that the CSA has no jurisdiction to make an assessment at all. The distinction is important. If the CSA has jurisdiction but makes a nil assessment the courts have no jurisdiction to make an order for child maintenance (s 8(3)). No child maintenance would be payable at all by either parent. If the CSA does not have jurisdiction to make a maintenance calculation, then the court is at liberty to make a periodical payments order pursuant to s 23 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989. Which is correct?

In terms of the first view, the argument would go as follows. Either the person with care of the non-resident parent may apply for a maintenance calculation (s 4(1)). That is the first stage and the Secretary of State (acting through the powers delegated to the CSA) then has jurisdiction to make a maintenance calculation. Arguably this confers jurisdiction upon the Secretary of State/CSA. Only once the maintenance calculation has been made does the next stage kick in, which is the power for the Secretary of State to collect the child support maintenance or to enforce the obligation to pay the child support maintenance in accordance with the calculation (s 4(2)). Accordingly, as the Child Support Act 1991 is drafted, the jurisdiction to make the maintenance calculation at s 4(1) is separate from the jurisdiction to require or enforce payment by the non-resident parent. The 'special case' under regulation 50 in the case of equal care does not, therefore, remove the jurisdiction of the Secretary of State but only excludes the other parent from being a non-resident parent against which the maintenance calculation duly made can be enforced. Therefore, the Secretary of State/CSA's 'jurisdiction to make a maintenance assessment' remains and the court would not have jurisdiction to make an order.

In terms of the second view, the statutory privisions are the same as above. The arguments proceed in two different ways. The first way is as follows. Regulation 50 means that there is no 'non-resident' parent in the case. Therefore, there is no 'qualifying child' because there can only be a 'qualifying child' if 'one of his parents is, in relation to him, a non-resident parent' (s 3(1)). Without a qualifying child there is no jurisdiction conferred on the Secretary of State/CSA to make a maintenance calculation under s 4 and so the jurisdiction of the court is not restricted under s 8. The second argument reaches the same conclusion another way. Section 8 applies to 'any case where the Secretary of Sate would have jurisdiction to make a maintenance calculation with a respect to a qualifying child and a non-resident parent'. As there is no non-resident parent by reason of regulation 50 it would appear that s 8 restores the jurisdiction of the court to make orders. 

Certainly it would appear that the second view is on stronger ground than the first view, but the position has not yet been resolved by way of an authoritative judicial decision.

The consequences are that, although an equal sharing of care may result in an exclusion of the jurisdiction of the CSA, it will open the door to the court making a maintenance order. As the courts are less constrained than the CSA in the way they assess the means of the paying party that may well be to the advantage of the receving parent. The court may also permit a far more extensive enquiry into the means of the paying party than the CSA would ever carry out.

The lesson for parties is that an equal shared care arrangement may not have quite the financial implications which are initially assumed. In fact, the parent who things the equal care may reduce his financial obligations may find quite the opposite is true.

This article was originally published on Andrzej Bojarski's blog and has been reproduced here with kind permission.