UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is that the decision of the Taunton appeal tribunal, held on 9^th September 2001 under reference U/03/206/2001/00444, is not wrong in law.

The appeal to the Commissioner

2. This appeals comes before me with the leave of a district chairman of tribunals. The Secretary of State does not support the appeal. Both parents have had the chance to comment on the appeal. The absent parent has done so and the parent with care has made a 'no comment' response.

The issue

3. The issue is whether Bethany is the absent parent's child for the purposes of the regulation 9(1)(g) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. That provision makes allowance in respect of a 'relevant child' in the exempt income calculation of the absent parent's liability for child support maintenance. The absent parent argues that Bethany is a relevant child. The Secretary of State disagreed and so did the appeal tribunal.
4. What is the relationship between the absent parent and Bethany? It does not matter whether the question is posed as: is the absent parent Bethany's parent? or as: is Bethany the absent parent's child? Parent and child are two sides of a single relationship. One cannot exist without the other.

In general family law

5. In general family law, Bethany is not the absent parent's child, nor is he her father. She is the granddaughter of the absent parent's wife. He and his wife have a residence order in their favour. A residence order is defined by section 8(1) of the Children Act 1989 as meaning:

'an order settling the arrangements to be made as to the person with whom a child is to live.'

That exhaustive definition shows that the order is concerned with living arrangements. The effect of the residence in this case is governed by section 12(2):

'Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.'

Parental responsibility is defined by section 3(1) as the

'rights, powers, duties, responsibilities and authority which by law a parent of a child has in relation to the child and his property'.

6. In summary, the residence order governs Bethany's living arrangements and confers on the absent parent and his wife the same control over Bethany and her property as if they were her parents. Nothing in the provisions I have quoted or elsewhere in family law creates the relationship of parent and child between them. Indeed, there are statutory provisions that are inconsistent with that relationship. For example, unlike the parent-child relationship, parental responsibility under a residence order usually lasts only until the child is 16 (section 9(6)) and ends in any case when the child is 18 (see the definition of child in section 105(1)). Also, the person with the residence order cannot consent to the child's adoption (section 12(3)).
7. So, general family law does not assist the absent parent.

In child support law

8. In child support law, 'relevant child' is defined in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 as meaning:

'a child of an absent parent or a parent with care who is a member of the same family as that parent'.

9. 'Child' is not defined in the Regulations. However, 'parent' is defined in section 54 of the Child Support Act 1991:

'in relation to any child, means any person who is in law the mother or father of the child'.

That definition applies to the Regulations made under the Act, unless the context otherwise requires: see section 11 of the Interpretation Act 1978.

10. The definition of 'parent' in the Child Support Act calls in general family law for the purposes of identifying who in law the child's parents are. Under that law, the absent parent is not a parent of Bethany.
11. Section 11 of Interpretation Act and the definition in regulation 1(2) are subject to the 'unless the context otherwise requires' qualification. Section 54 of the Child Support Act is not, but it is implicit: see the comment of Lord Selborne in Meux v Jacobs (1875) Law Reports 7 House of Lords 481 at page 493.
12. The absent parent's argument in effect is that the context does otherwise require. He makes two points.
13. First, he refers to his relationship with Bethany, which to all intents and purposes is the same as that of a parent. Although he does not put it in these terms, he argues that the policy underlying the allowance for 'relevant child' applies to Bethany as it would if she were his natural or adopted child. I accept that for day-to-day purposes the absent parent has the same financial responsibility for Bethany as if he were her father. However, that does not make him her father. His argument ultimately depends on an assumption that the policy underlying regulation 9(1)(g) depends on financial responsibility. It is narrower than that. It depends on distinction between the children of a parent and other persons for whom that parent has a financial responsibility. Only the former qualify for an allowance.
14. Second, the absent parent refers to the 'intentions and spirit' of the legislation rather than to the letter. This is really the same point as the first, but presented in different terms. It appeals to a method of statutory interpretation that is not allowed.
15. I reject the absent parent's arguments. I find nothing in the context to justify a different interpretation from that produced by applying section 11 of the Interpretation Act and the statutory definition of 'parent' in the Child Support Act.

Conclusion

16. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 31st May 2002