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 COMMISSIONERS

		Royal Courts of Justice Strand London WC2 Wednesday, 22nd May 2002

1. LORD JUSTICE WARD: This is an application for permission to appeal the decision of the Child Support Commissioner, Mr Levenson, made on 16th October 2001. The Commissioner dismissed a father's appeal against the decision of the Child Support Tribunal made on 15th February 2000, when the tribunal upheld a child support officer's view that the father was to be treated as the absent parent for the purposes of the Child Support Act; that mother was the parent with care; and, importantly for today's purposes, that 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 of the amount of child support that had to be paid by reason of that shared care.
2. The case may be one of the first of its kind to come to this court and it may have been useful for that reason alone to have given permission, but there are more important reasons for doing so. Very briefly, the facts are these. The child concerned is a young boy, F, who was born on 24th March 1990. His main home has been with his mother. A residence order in her favour was made in July 1994 and contact was agreed according to a schedule. In 1997 F began to attend a school with day-boys and boarders and, like many a young man, he no sooner discovered that the boarders were having a lot more fun than he probably was having at home, than he asked if he could board, and thus he began to board from the summer term of 1998.
3. The result of his going to boarding school led to further proceedings in the county court in the divorce proceedings which had taken place between mother and father. The result was an order of 19th December 1997, when no order was made on the father's application for shared residence. The court confirmed that the boy should reside with his mother, directions were given approving his boarding, and contact was directed as set out on a schedule to that order. The practical effect, therefore, of that change and those orders was that in the first year F spent 191 nights at school and he had 87 nights with his mother and 85 with his father. In the next year, 2000/2001, he was at school for 164 nights, he spent 104 nights with his mother and 96 with his father.
4. That led to a re-assessment of the child support. Prior to the boy's going to boarding school he had been treated for child support purposes as being in the day-to-day care (that is to say, as those words are defined in regulation 1(2) of the Regulations, care of not less than two nights a week on average) of the father, because he was spending on average two nights a week with his father - 104 nights for this purpose. That led, if I correctly understand the intricacies of this complicated Act, to a reduction of the amount assessed for maintenance by virtue of the operation of the algebraic formula set out in regulation 20. When he went to boarding school the Child Support Agency took the view that he was no longer in the shared care of his father (that is to say, that father no longer qualified for those 104 nights of day-to-day care) and the result was that the assessment was increased as no reduction was now being made.
5. The father appealed against that. He took two points. The first was an argument (which I hope I paraphrase correctly) that, because father was paying the school fees, he should be treated as being the only parent with care, the mother losing that status. The argument, if successful, would presumably have reduced his liability to pay any child support. I am not surprised that that argument failed. Father does not seek to renew it and there is no longer any point about that at all.
6. The second argument, however, is this. For the purposes of the Act the court is required to assess day-to-day care where a child is a boarder at a boarding school on the basis that the approach is to ask oneself what the position would have been but for the fact that the child was now at boarding school. The tribunal seem to have addressed the matter in this way:

"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."

7. The Commissioner gave permission to appeal on a point of law which he identified to be whether the tribunal had erred because they should have considered dividing the school nights between the carers. Having granted that permission, the Commissioner nonetheless upheld the approach of the tribunal, saying that he agreed with the mother's argument that, because the court had declined to make a shared residence order, that was a matter of significance which tipped the balance in favour of the mother's argument that she was now the sole person with day-to-day care of this boy.
8. In my judgment there is a real prospect of success in this appeal. It seems to me that it is highly arguable that the tribunal misdirected itself in treating the residence orders as relevant, whether sole residence or shared residence, when the relevant order (if and insofar as the Divorce Court orders are material) would have been the contact order providing for the boy to stay overnight with his father. For my part, I see difficulty in determining the question as to who would usually be providing day-to-day care for F but for the fact that he was a boarder at boarding school by reference to the residence orders made in the divorce proceedings.
9. I confess that I have equal difficulty in understanding the third ground of the tribunal: I do not understand how the fact that the mother is in receipt of child benefit is determinative of, or even relevant to, the hypothetical question which has to be answered. The reasons said to be abundantly clear to the tribunal are far from abundantly clear to me. When they concluded that:

"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",

10. I confess that I am filled with doubt about that conclusion. It simply does not seem to me to bear any reality to what they ought to be asking: that is, the hypothetical question, what would have been happening if the boy had not gone to boarding school? I would have thought, for myself, that it is highly arguable that the obvious answer to that would be that the parents would have carried on as they were before; that there would have been no change, and that, as a consequence, father and son would still have been having their 104 nights together. That would have entitled father to continue to be required to pay only a reduced amount of child support.
11. This is necessarily a very preliminary view on an application for permission to appeal in which I have not heard any arguments on the other side. But I confess to finding it extremely difficult to justify the tribunal's approach or their conclusions of fact, which are in any event not reasoned in any satisfactory way whatsoever. Consequently, I shall give permission to appeal on grounds limited to the question whether father does retain day-to-day care within the meaning of the Act and the Regulations.
12. A copy of this judgment must be served upon the respondents. Perhaps the Secretary of State will reflect about his position with care. I note that, following the Commissioner's raising the question whether the tribunal should have considered dividing the school nights between the parents, the Secretary of State opposed the appeal as put forward by the father. Perhaps that was opposition to the now abandoned argument that he was the sole carer of the boy. I note in paragraph 9 of the Commissioner's judgment that originally the Secretary of State supported the appeal on the basis that the tribunal should have considered a hypothetical allocation of the school nights. Unfortunately, and for reasons which do not appear in the judgment of the Commissioner, the Secretary of State's representative resiled from that submission and opposed the appeal. I wonder whether the Secretary of State might again care to reconsider his position; and if, on that reconsideration and a reflection upon my preliminary views in this judgment, they do conclude that a hypothetical allocation of school nights would have been appropriate and would have meant no change, then it is not too late for the Secretary of State gracefully to throw his hand in and save the further expense, time and trouble of an appeal to this court. But that, of course, must be a matter for the Secretary of State, and I repeat that I am not an expert in these matters and that this is very much my preliminary view of the correct course to follow in this case.
13. I will ask the office to invite the Citizens Advice Bureau and the Bar Pro Bono Unit to provide counsel for the father should it become necessary to have this appeal fully heard and examined.
14. I therefore grant permission on that limited basis.
Order: application for permission to appeal granted to limited extent set out in judgment; respondents to be served with copy of judgment.