England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHILD SUPPORT TRIBUNAL
(MR H LEVENSON, CHILD SUPPORT COMMISSIONER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 December 2002

Lord Justice Potter:

Introduction

1. This is an appeal by Alexander Child-Villiers ('the father') from an Order of the Child Support Commissioner, Mr H Levenson dated 16 October 2001. The Commissioner dismissed the father's appeal against the decision of the Child Support Tribunal made on 15 February 2000, in respect of F, the father's son by his former wife Linda-Benedicte Barlow ('the mother'). The Tribunal upheld a decision made by an officer of the Child Support Agency, upon a review of the child support paid by the father to the mother in respect of F, that the father was to be treated as the 'absent parent' for the purposes of the Child Support Act 1991 ('the Act'); that the mother was the parent with care; and that the father was no longer to be treated as a person who shared the day-to-day care of the child to the extent that he qualified for a reduction in the amount of child support that had to be paid by reason of that shared care.
2. Although named as first respondent to the appeal, the Secretary of State wrote to the court to indicate that, in the light of certain observations made by Ward LJ when granting permission to appeal, he did not propose to appear in order to resist the father's appeal. However, it has been resisted by the mother, who has made submissions supporting the decision of the Tribunal and the Commissioner.

The Relevant Law

3. By s.3(1) of the Act:

"A child is a "qualifying child" if –

(a) one of his parents is, in relation to him, an absent parent …"

4. By s.3(2) of the Act:

"The parent of any child is an absent parent" in relation to him, if –

(a) that parent is not living in the same household with the child; and

(b) the child has his home with a person who is, in relation to him, a person with care".

5. By s.3(3) of the Act:

"A person is a 'person with care', in relation to any child, if he is a person –

(a) with whom the child has his home;

(b) who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and

(c) who does not fall within a prescribed category of person."

It is to be noted however that s.3(5) of the Act provides that:

"for the purposes of the Act, there may be more than one "person with care" in relation to the same child."

6. The relevant Regulations for the purposes of calculating the amount of child benefit payable are the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992/1815), as amended by SI 1995/1045 ("the Regulations").
7. Regulation 1(2) of the Regulations provides that

" "Home" means –

(a) the dwelling in which a person and any family of his normally lives; or

(b) if he or they normally live in more than one home, the principal home of that person and any family of his …

"Day to day care" means care of not less that 2 nights per week on average during –

(a) the 12 month period ending with the relevant week; or

(b) such other period, ending with the relevant week, as in the opinion of the child support officer is more representative of the current arrangements for the care of the child in question;

and for the purposes of this definition, where a child is a boarder at a boarding school … the person who, but for those circumstances, would otherwise provide day to day care for the child, shall be treated as providing day to day care during the periods in question."

8. By reason of these definitions and s.3 of the Act already quoted, two parents living apart may both be considered "persons with care" provided they each satisfy the requirements of s.3(3) of the Act. In such circumstances it is necessary to resolve, for the purposes of payment of benefit under the Act, which is to be treated as the absent parent.
9. In this respect, Regulation 20 provides:

"(1) Where the circumstances of a case are that –

(a) two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

(b) at least one of those persons is a parent of that child,

that case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this case a parent who provides day to day care for a child of his in the following circumstances is to be treated as an absent parent for the purposes of the Act and these Regulations –

(a) a parent who provides such care to a lesser extent than the other parent, person or persons who provides such care for the child in question …

(3) Subject to paragraphs (5) and (6), where a parent is treated as an absent parent under paragraph (2) child support maintenance shall be payable by that parent in respect of the child in question and the amount of the child support maintenance so payable shall be calculated in accordance with a formula set out in paragraph (4)."

10. It is not necessary for the purposes of this appeal to quote, or explore the application of, the formula so provided.
11. Because of the inclusion in the definition of 'day to day care' in Regulation 1(2) of a reference to the situation where a child is at boarding school, Regulation 27 provides that

"(1) Where the circumstances of a case are that –

(a) a qualifying child is a boarder at a boarding school … and

(b) by reason of those circumstances, the person who would otherwise provide day to day care is not doing so, that case should be treated as a special case for the purposes of the Act.

(2) For the purposes of this case, section 3(3)(b) of the Act shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1)."

12. It is the application and effect of Regulation 27 which lies at the heart of the appeal in this case.

The Relevant Facts

13. The relevant facts may be shortly stated. F was born on 24 March 1990 and is now 12 years old. The mother and father separated in 1991. At all relevant times, the mother has been in receipt of the standard child benefit for F, as distinct from child support.
14. On 5 July 1994, the mother was granted a Residence Order in the Canterbury County Court ("the Court") whereby the court ordered that F should live with the mother, but that the mother permit contact with the father at alternative weekends from 6pm on Friday to 6pm on Sunday (or as otherwise agreed) and, during the school holidays, for such periods as agreed, to the intent that roughly one half of each school holiday should be spent with each parent. During this period the Child Support Agency determined that the mother was the 'parent with care' and the father the 'absent parent' but recognised shared day to day care between them, thus having the effect of reducing the father's child support payment obligations under the formula for calculations set out in Regulation 20(4).
15. In September 1997, F began attending boarding school as a day boy, pursuant to an order of the court made on 20 August 1997 which also provided that, subject to the right of either of the parties to apply to the court, they would follow the advice of the school's headmaster if he was of the opinion that F was ready to start as a boarder. Contact was ordered to continue on the same basis as before. Not long thereafter, the decision having been taken that F should become a boarder in 1998, the father, who was to be solely responsible for the school fees, applied to the court for a shared residence order and variation of the contact orders previously made in the light of the new boarding arrangements. By order dated 19 December 1997, the court refused the father's application for a shared residence order, ordering that the original residence order made on 5 July 1994 should stand and that the subsequent contact order should be varied so as to make detailed provision for the weekends and holidays on a roughly shared basis.
16. As a result of the modified contact, the position was (as apparently accepted by the parties before the Tribunal) that, disregarding the nights spent at boarding school, F spent 85 nights a year with the father and 87 nights with the mother, these figures increasing in the year 2000/2001 to 104 nights spent with the mother and 96 with the father.
17. Following the change of regime under the new contact order, the father applied for a review of the Child Support payable by him, contending that, as he was paying F's boarding school fees, he should now be regarded as the parent with care. On 1 June 1999, the Child Support Agency altered its assessment, determining that the mother had sole 'day to day' care of the child according to the Regulations and withdrawing the father's shared care allowance.
18. The father appealed that decision to the Margate Child Support Appeal Tribunal ("The Tribunal"). His principal ground was that, as the person paying the school fees, he should be recognised as the 'parent with care' under s.3(3) of the 1991 Act. It appears that his submissions made reference to Regulations 1 and 27, but only in the context of his overall argument that he, and not the mother, should be recognised as the parent with care.
19. The Tribunal rejected the father's appeal. The relevant part of the Tribunal's decision, of which complaint is made on this appeal, is as follows. Having referred to Regulation 20 and 27, the Tribunal stated as follows:

"The next question to be addressed following on from that is: - "Who is the person who would usually be providing day to day care for F but for the fact that he is a boarder at a boarding school?" The answer to that question must be F's mother, the second Respondent. The reasons are abundantly clear:

(a) The Canterbury County Court has made a Residence Order in favour of the second Respondent.

(b) The Appellant's claim for a shared Residence Order resulted in no Order being made.

(c) The second Respondent is in receipt of the Child Benefit in respect of F.

If F was not a boarder at a boarding school the Tribunal is in no doubt that the person who would otherwise be providing day to day care for him is the second Respondent."

The Tribunal gave no further reasons for coming to that conclusion.

20. The Tribunal refused permission to appeal on 3 April 2000. However such permission was granted by the Child Support Commissioner on 11 October 2000. The point of law identified was whether or not the Tribunal had erred because they had not considered dividing the nights spent by F at boarding school between the parents before deciding whether or not the mother had become the sole person with day to day care of F.
21. In response to directions of the Commissioner dated 10 October 2000, the Secretary of State, as first respondent to the appeal, accepted that the Tribunal's decision had been wrong in law. The Secretary of State submitted that the Tribunal had been correct to reject the father's submission that payment of the school fees by him meant that he should be treated as providing care for F for the 183 nights which he spent at school and thus should be treated as the parent with care and not the absent parent. However, the Secretary of State pointed out that the effect of Regulation 27 is that the qualifying child is considered to be under the day to day care (ie care of not less than two nights per week on average – see Regulation 1(2)) of the person who would, but for the child being a boarder, have the care of the child during the boarding period.
22. In this respect the Secretary of State quoted from the decision of a previous Commissioner in case CCS/0037/1997 in which it was stated:

"34.The question of where a child would be if not at boarding school may, in some cases, be easy to answer. However, in other cases it will be hypothetical and difficult to answer. The way in which a child's holiday time is divided between the absent parent and the parent with care may be evidence of how term time will be divided. It is, however, not appropriate for a Tribunal merely to apply the same distribution to term time without investigation whether this would be likely to be the case."

23. The Secretary of State submitted that the Tribunal had erred in law because it was apparent that it had failed fully to investigate where F might have spent his time had he not been at boarding school.
24. For reasons which are not clear, when the representative of the Secretary of State appeared before the Commissioner upon the hearing of the appeal, he resiled from that submission, opposed the appeal and supported the decision of the Tribunal. The mother also opposed the appeal and supported that decision.
25. In coming to his conclusion, the Commissioner confirmed the erroneous nature of the husband's argument that the payment of the school fees was relevant to, let alone definitive of, the question of whether a parent was to be regarded as a "person with care" or a person with "day to day care" of a qualifying child. He then turned to consider whether the father could be said to be a person with care on some other basis, recognising that a child could be regarded as having a home with both parents, given that day to day care could be treated as shared in a case where such care was provided by each parent for at least 104 nights a year. The relevant parts of the Commissioner's decision reads as follows:

"22. The father's next line of argument is that, had the child not been at boarding school, then the Court would probably have ordered that all of the time be divided equally between the parents in the same way that it was decided that the holiday time should be divided equally. I do not accept that in the circumstances of this case any reasonable Tribunal could have found that the Court would have ordered that the child spend more time with his father than his mother, or that the parties would have agreed to this happening. However, assuming (in favour of the father) that the child would have spent equal time with each parent, then recourse must be had to Regulation 20 of the [Regulations] …

Is There Shared Care?

25. The phrase 'shared care' does not appear in the Statutes or Regulations but is commonly used to refer to the situation where both parents have day to day care as defined in Regulation 1(2). The calculation of the maintenance assessment is affected if both of the parents have day to day care of the qualifying children (Regulation 20(3) of the [Regulations]). Regulations 1(2) and 27(2) both require the same hypothetical finding to be made. The father really relies here on the same arguments as he relied on to show that he was the person with care. However, at this stage he only needs to show that such Court Order or arrangements would have been made as meant that the child would spend at least 104 nights a year with him during the relevant period.

26. There is no doubt that, as a matter of law, the hypothetical nights could be apportioned between the parents …"

26. No complaint is made by the father in relation to those paragraphs of the decision. However, having quoted paragraph 4 of Case CCS/0037/1997 (see paragraph 22 above), the Commissioner stated:

"29. Having myself raised the issue of apportionment when granting leave to appeal, I have come to the conclusion that there was no real (as opposed to fanciful) basis on which the Tribunal could have reached any other conclusion than the one it did reach.

The Tribunal Decision

30. The father argues that the Tribunal was wrong to take account of the fact that the court declined to make a shared Residence Order. This is because courts do not make such orders when the parties are in dispute. The mother argues that the failure to make such an Order is significant because the father had specifically applied for such an Order. I agree with the mother on this issue. The matter was put in contention before the Court, which clearly came down on one side and not on the other.

31. The mother's evidence to the Tribunal (page 100) was that the Court was influenced by the fact that it would be mother who cared for the child if he were ill. She also stated that for the majority of the father's contact time the child was actually looked after by his paternal grandparents because the father's own accommodation was too small. The father relied almost entirely on arguments as to finances. It seems to me that there was no basis on which the Tribunal could have found that at the relevant time the father had day to day care of the qualifying child.

32. Although the Tribunal could have spelt out more clearly the relevant law and given fuller findings and reasons, taking a broad view I am not persuaded that its decision was made in error of law. Accordingly, for the reasons that I have given above, this appeal by the father does not succeed."

27. It seems to me that both the Tribunal and the Commissioner were wrong in their approach to the question of day to day care. Both appear to have proceeded upon the basis that it was a matter of significance (and in the case of the Tribunal, actually determinative) that the father had failed in his application to the Court for a shared residence order on 19 December 1997. In my view, that was an error. The Act and the Regulations make no reference to orders which may or may not be in force in family proceedings between the parties. They create a self-contained statutory regime for determining the incidence of child benefit and, in this respect, concentrate not simply upon the question which of two parents is to be regarded as the absent parent, but also which person provides day to day care for the child. Because day to day care means "not less than two nights per week" (see Regulation 1(2)), there may be a situation, as appears to have prevailed in this case for the period prior to F's attendance at boarding school, in which each parent provides day to day care of more than 104 nights in the year. Where, however, the amount of day to day care which the parents provide to the child is reduced or truncated by reason of the child's attendance at boarding school, for the purposes of determining whether either or both provides day to day care, it is necessary to determine who, during the period (s) of boarding attendance would otherwise provide day to day care (see Regulation 27). The provisions of a residence order will be relevant to that determination on the assumption that, in the ordinary way, the parties may be expected to comply with its terms. However, it will not be determinative. The task of a Tribunal in making the necessary determination is to decide, on the basis of its assessment of the situation and the evidence of the parties, what level and frequency of care would be provided by each parent if the child were not at boarding school.
28. In this context, it appears to me, as it appeared to Ward LJ in granting leave to appeal, that the Tribunal misdirected itself in treating as relevant the refusal of the Family Court to grant to the husband a shared residence order. The relevant aspects of the Family Court's orders were the contact provisions which, prior to the commencement of the boarding school regime, provided for alternative weekends with the father during term-time and shared school holidays and, once the boarding regime started, continued to provide for the weekends and holidays to be shared. It is difficult to see, and in this respect no reasons were expressed by the Commissioner for upholding the Tribunal's decision, why it should have been concluded that, if the correct hypothetical question were addressed under Regulation 27, the day to day care of the father would have been so reduced that he would fail to qualify as a person providing day to day care of at least 104 nights per year. The answer to the question which required to be asked, namely what would have happened if F had not gone to boarding school, would at first blush appear to be that the parents would have continued as before with access as provided for in the residence order, that is to say with the father having contact, and in that connection providing day to day care, on alternative weekends and for roughly half the school holidays.
29. However, the answer to the hypothetical question to be posed under Regulation 27 was and is a matter for the determination of the Tribunal applying the principles which I have stated above in the light of the parties' evidence. It has been made clear to us that the father and the mother are indeed at odds over what the answer to the question should be. One of the principle complaints of the mother is that, under the boarding regime as it has progressed, the persons providing day to day care to F at weekends have been the paternal grandparents who live close to the school, the father visiting them for the weekend for the purpose of maintaining his contact, but not providing care as properly to be understood under the Regulations. Whether or not that is right, it does not seem to me to be determinative of the question of what would be happening if F were not at boarding school. However, there are other points which the mother wishes to make and I do not consider it appropriate for this court finally to answer a question which depends upon the Tribunal's assessment of the position in the light of the available evidence. We have not had placed before us the extensive evidence and documentation presented to the Tribunal. It may well be that, in the light of this judgment, the relevant material can be substantially reduced with the parties concentrating upon the essential issue. Nonetheless, it seems to me that the case should be remitted to the Tribunal for decision following reconsideration of the position on an up-to-date basis.

Conclusion

30. I would therefore allow the husband's appeal from the decision of the Commissioner and remit the husband's appeal from the Child Support Officer's assessment to the Tribunal for a rehearing of the question whether the father provides day to day care to F within the meaning of the Act and the Regulations, to an extent sufficient to entitle him to restoration of his former 'shared care' allowance.

Lord Justice Chadwick:

31. I agree with the order proposed by Lord Justice Potter.
32. The father's primary submission before the Child Support Tribunal was that he, and not the mother, was the 'person with care' for the purposes of section 3(3) of the Child Support Act 1991. That submission was based upon the fact that it was the father who was responsible for the boarding school fees – and so (it was said) the person providing 'day to day care' for the purposes of section 3(3)(b) of the Act during the whole of the period that the child was boarding at school. The Tribunal rejected that submission. It was plainly correct to do so. In the light of the provisions in regulations 1(2) and 27(2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992/1815 as amended by SI 1995/1045) the father could not be regarded as providing 'day to day care' to the exclusion of the mother merely because he was responsible for the school fees.
33. The relevant question, for the purposes of section 3(3)(b) of the 1991 Act, was 'who, but for the circumstances that the child is a boarder at a boarding school, would usually be providing day to day care for the child?' In addressing that question it was necessary for the Tribunal to have in mind that the hypothesis introduced by the words "but for" required it to consider whether (if the child were not a boarder at a boarding school) either, or both, parents would have care of not less than 2 nights per week on average during the relevant twelve month period – see regulation 1(2). If the answer to that question were that, if the child were not a boarder, both parents would have care of not less than two nights per week on average, then the father and the mother would each be a 'person with care' in relation to the child – see section 3(5) of the 1991 Act.
34. The Tribunal identified the correct question. But the reasons which it gave for its conclusion that the mother was the only person "who, but for the circumstances that the child is a boarder at a boarding school, would usually be providing day to day care for the child" cannot be supported. The residence order made in the Canterbury County Court could not be determinative of the question whether the father provided day to day care within the definition in regulation 1(2) of the 1992 Regulations. The residence order was of relevance only to the extent that the parties might be expected to comply with it; but, in the present case, the need to comply with the order did not lead to the conclusion that the father could not have care of not less than two nights per week on average. The fact that one parent (in this case, the mother) was in receipt of child benefit in respect of the child was of relevance to the question which of two parents providing day to day care was to be regarded as the 'absent parent' for the purposes of the 1991 Act – see regulation 20(2)(b) – but it provided no answer to the question whether the other parent was providing day to day care.
35. The Tribunal's decision was upheld by the Commissioner. For my part, I find it impossible to understand how the Commissioner reached the conclusion that "there was no basis on which the tribunal could have found that at the relevant time the father had day to day care of the qualifying child". I share the view expressed by Lord Justice Potter that, having regard to the way in which care had been shared before the child became a boarder, it would have been a matter of no surprise if the Tribunal had so found. The Tribunal's reasons for a contrary finding cannot be supported; and the Commissioner gave no reasons of his own.
36. In the circumstances that the question "who, but for the circumstances that the child is a boarder at a boarding school, would usually be providing day to day care for the child" is a question of fact for the Tribunal upon which the mother wishes to make further submissions in the light of the current factual position, I am satisfied that the appropriate course is for this Court to remit the father's appeal from the assessment made by the Child Support Officer for determination by the Tribunal in the light of the guidance which has been given.

Lord Justice Kennedy:

37. I have read in draft the judgments of Potter LJ and Chadwick LJ and agree with them.