UK Social Security and Child Support Commissioners' Decisions

R(CS) 5/96


Mr. D. G. Rice CCS/7935/1995

9.2.96 R(CS) 5/96

Jurisdiction - civil servant posted abroad - whether habitually resident in the United Kingdom

The absent parent contented that the child support officer has no jurisdiction to make a child support maintenance assessment because he was not habitually resident in the United Kingdom. At the time of the application for a maintenance assessment the absent parent had worked for the Home Office for some 20 years. In August 1992 he was posted to India, initially for 18 months, but this was subsequently extended to 1997, with the possibility of a further extension for another year. The absent parent had been born in the United Kingdom and until August 1992 he had been resident here. He owned property in the United Kingdom. The child support appeal tribunal allowed the absent parent's appeal, deciding that he was not habitually resident in the United Kingdom, and directed that the maintenance assessment should be cancelled. The parent with care appealed to the Commissioner.

Held that:

to be resident in a country a person had to be seen as making a home there (CIS/1067/1995 applied). Clearly the absent parent was resident in India at the time in question. However, the issue was the meaning of habitually resident in the context of the child support scheme (paras. 6 and 9);

the purpose underlying the child support legislation was the social need to require absent parents to maintain, or contribute to the maintenance of, their children. In deciding as a question of fact whether the absent parent had ceased to be habitually resident in the United Kingdom, the important factors were the nature and degree of his past and continuing connection with the United Kingdom and his intentions as to the future, although the reason for his move abroad and the nature of any work there were also material. It was not enough merely to look at the length and continuity of his actual residence abroad (para. 9);

the absent parent has not gone abroad to reside there indefinitely but would in due course return to this country. He was pursuing a career with the Home Office which linked him to this country and to residence here. He was paid as a civil servant here and his earnings were subject to United Kingdom tax. Thus although his posting abroad was for a substantial period of time he remained habitually resident in the United Kingdom (paras. 11 and 12).

The Commissioner set aside the tribunal's decision and remitted the appeal for rehearing by a differently constituted tribunal.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. My decision is that the decision of the child support appeal tribunal given on 10 April 1995 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.
2. This is an appeal by the parent with care, brought with my leave, against the decision of the child support appeal tribunal of 10 April 1995. In view of the complexity of the case I directed an oral hearing. At that hearing the parent with care was present and represented by Mrs. Lesley Edwards, whilst the child support officer appeared by Mr. Daniel Jones of Counsel, instructed by the Solicitor's office of the Department of Social Security. The absent parent was neither present nor represented.
3. The question for determination by the tribunal was whether the maintenance assessment made by the child support officer in respect of the child of the appellant and the absent parent was made without authority. The absent parent's contention was that the child support officer had no jurisdiction to make the assessment, because he was not habitually resident in the United Kingdom. He relied on section 44(1) of the Child Support Act 1991, which reads as follows:

"44. (1) A child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is-

(a) a person with care;

(b) an absent parent; or

(c) a qualifying child,

only if that person is habitually resident in the United Kingdom."

In the event, the tribunal, allowing the appeal, decided that the absent parent was not habitually resident in the United Kingdom, and that therefore the matter should be remitted to the Secretary of State for referral to a child support officer with the direction that the maintenance assessment made on 12 April 1994 should be cancelled.

4. In her appeal to the Commissioner, the parent with care contends that, if the tribunal had correctly interpreted the meaning of "habitually resident in the United Kingdom" within section 44, they could not reasonably have concluded, on the evidence, that in the present case the absent parent was not habitually resident in the United Kingdom.
5. At the time of the application for a maintenance assessment the absent parent had been a civil servant for some 20 years working in the Home Office in the Immigration Department. In the course of his duties, he had accepted an invitation to be posted to India where he could investigate the claims of prospective immigrants whilst they were still in that country. He had commenced this tour of duty in August 1992. It had initially been for 18 months, but had subsequently been renewed until 1997, with the possibility that it might be further renewed for another year. The absent parent had been born and educated in the United Kingdom, and apart from a short period from June 1990 to November 1990, when he was on secondment in Algiers, he had until August 1992 been resident in this country. He had owned property here, possibly two houses, and it is not in dispute that one has recently been sold.
6. I find no difficulty in understanding the meaning of the word "resident". I agree with the interpretation of the term attributed to it in paragraph 19 of CIS/1067/1995:

"Residence to my mind embodies a more settled state than mere physical presence in a country, so that a person who is a short stay visitor, or has come here for an operation or to receive medical treatment other than long-term care, is neither resident nor habitually resident. To count as resident, a person must be seen to be making a home here; even though it need not be his or her only home, nor need it be intended to be a permanent one, provided it is generally home for the time being."

In that particular case, the Commissioner was considering whether a person had acquired a habitual residence in this country for the purposes of income support, and, in looking at that question, he postulated the proposition that a person who was not resident in this country at all could not be habitually resident here. Without doubt, in the case I have to decide, the absent parent was resident in India. He had been there since August 1992, and was proposing to continue there at least until 1997. But the real difficulty in this case is what is meant by habitually resident.

7. In CIS/1067/1995 the Commissioner examined the authorities from other branches of the law on the meaning of habitual residence and in particular In Re J. [1990] 2 AC p. 562. In that case at p. 578 Lord Brandon said:

""Habitual residence" is ... not to be treated as a term of art .... but is rather to be understood according to the ordinary meaning of the two words which it contains ..... whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case .... there is a significant difference between a person ceasing to be habitually resident in country A and his becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so."

8. The context of CIS/1067/1995 was a claim for income support by a person who had arrived in this country from abroad. The Commissioner was accordingly looking at the question of whether a person, having come here from another country, had become habitually resident in this country. In that context he considered that the most important factors to be looked at were the length, continuity and general nature of the person's residence here, and that there was a need to discern an appreciable period of actual residence in this country before the person concerned could become habitually resident. He recognised, however, the possibility of other factors being relevant (see the European Court of Justice Case 76/76 Di Paolo, where the Court emphasised that a person who has a stable employment for the time being in one country may be presumed to be habitually resident there, even though he continues to have family ties in another country). It is not only the family situation of the person that should be taken into account, but also the reasons which led him to move and the nature of the work. Account must be taken of the length and continuity of the residence before the person moved, the length and purpose of his absence, the nature of the occupation in the country to which he has moved, and the intention of the person as it appears from all the circumstances.
9. The context in the case I have to consider is different. As I understand it, the purpose underlying the child support legislation is the social need to require absent parents to maintain, or contribute to the maintenance of, their children. In determining as question of fact whether in the above context a person has ceased to be habitually resident in this country, it appears to me that emphasis should be put on factors directed to establishing the nature and degree of his past and continuing connection with this country and his intentions as to the future, albeit the original reason for his move abroad, and the nature of any work being undertaken there are also material. It is not enough merely to look at the length and continuity of the actual residence abroad.
10. Mr. Jones contended that as the absent parent had resided in India since August 1992, it was unrealistic to say that he was not now habitually resident in India. Of course, the answer to the question where habitual residence lies could prima facie be said to depend upon the time-scale to be adopted. If one looks at the life and career of the absent parent, it is clear that he has spent most of his time resident in the United Kingdom. Looked at from this standpoint, it could be said that he was habitually resident in this country, a conclusion reinforced by the fact that he has his family still here. Mr. Jones contended that this was far too wide a period to apply. The lifestyle of the absent parent had changed. He had taken up residence in India from August 1992, albeit he did return to this country on furlough for four weeks after he had been abroad 18 months, and the evidence was that he was going to reside there at least until 1997. The realities of the position were, Mr. Jones argued, that the claimant, notwithstanding his family were still in England, was now habitually resident in India. There was a history of residence there for some years and seemingly an intention for some years into the future to continue to live there.
11. I am not persuaded by Mr. Jones' submission. This is not a case where a person has gone abroad to reside there indefinitely. It is not, for example, the case where, as in previous times, someone went to join the Indian Army to pursue a career there throughout his working life. The absent parent in this instance is pursuing a career in the Home Office, albeit in the Immigration Branch. He has taken up the opportunity of carrying out his duties in India for a specific time. I understand that he could be recalled at any moment, but on the balance of probability his return will not arise until at least 1997. Nevertheless, the evidence, such as it is, indicates that the absent parent will in due course return to this country and then will perform whatever duties are allocated to him, which, for all I know, may involve his going out to some other country. But what he is doing is pursuing a career in the Home Office which links him essentially with this country and residence here. Before he went to India he was undoubtedly habitually resident in the United Kingdom, and, in my judgment, his tour abroad, albeit one of a substantial period of time, does not destroy the essential character of his career, which is one fundamentally based in this country with habitual residence here. Moreover, his family, for whom he is financially responsible, continue to live in this country.
12. I am reinforced in the view I take by the fact that the claimant is paid as a civil servant in this country and his earnings are subject to United Kingdom tax. Accordingly, there will be no difficulty about enforcing any maintenance assessment, something which might not be the case where an absent parent is living somewhere in the world without any such links with the United Kingdom.
13. Accordingly, I consider that the tribunal were not entitled on the evidence before them to reach the conclusion they did. They either misinterpreted the meaning of "habitually resident" or reached a conclusion on the facts which could not be reasonably upheld. They therefore erred in point of law and I must set aside their decision.
14. I cannot myself substitute my own decision for that of the tribunal, as it is necessary to decide whether the maintenance assessment has been correctly calculated, and I have had no submissions on this issue. Accordingly, I direct that the appeal be reheard by a differently constituted tribunal who, having the jurisdiction so to do, will in the light of any submissions consider whether the assessment has been correctly calculated, and if it has not, will give appropriate directions.
15. I allow this appeal.

Date: 9 February 1996 (signed) Mr. D. G. Rice

Commissioner