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Family analysis: Liz Cowell, principal lawyer with Slater and Gordon, examines JH v Secretary of State for Work and Pensions and argues that the issue of shared care is one of the most difficult areas left within the child maintenance remit.
JH v Secretary of State for Work and Pensions and another  UKUT 440 (AAC)
Briefly, what was this case about?
JH v Secretary of State for Work and Pensions and another was an appeal to the Upper Tribunal (UT) concerning the application of the different bands of discount available to the non-resident parent where there is a shared care arrangement and the difficulties surrounding flexible arrangements on a year-on-year basis.
Why is this decision important to family lawyers?
Very sadly while the courts maintain the fiction that issues over arrangements for where children should live, and the number of nights that they spend with each of their respective parents are not to be considered in light of financial factors, this decision exposes how untrue this is for the parents themselves. It is important that when agreeing a shared care arrangement the parent who has less overnight contact is aware of the burden of providing child support and how that will be worked out. In this case, one or two nights per annum radically affected the liability for child support. Clients must be warned and must be advised to keep careful records of the amount of time spent overnight with them in the future.
What were the key issues?
In this case, the father actually had the children overnight for 176 nights in the year preceding the assessment. There was a complicated timetable set out in a consent order for shared residence which varied on an annual basis depending upon when Easter holidays and other holidays fell. On some years, this would result in the children staying less than 174 nights per annum.
At the time the assessment was done, there was a greater allowance to the non-resident parent (under the Child Maintenance Service (CMS) known as the paying parent) where the children stayed more than 175 nights per annum. Initially the Child Support Agency determined that the children’s time spent with their father was 172 or 173 nights per annum due to the cycle set up in the consent ord
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Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.
Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.
When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).
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