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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 order. The UT found the correct period to be the 12 months immediately before the assessment, which in that particular year allowed for 176 nights. However, the judge then went on to apply regulation 7(4) of the Child Support (Maintenance and Special Cases) Regulations 2000, SI 2001/155, which provides an exception to this rule where the change in frequency per annum is intended and made a decision that the children were staying 174.3 nights per annum by looking at a shorter period than the 12 months.
Although the judge did not find that the lower-tier tribunal had applied the regulation correctly he still determined that the children were staying less than 175 nights per annum.
What are the common issues in this area of law? Did the judgment clarify these?
Unfortunately the issue of shared care has never been and never can be resolved within the strict statutory framework described by the judge as a set of tramlines that is applied rather than guidelines. There is no discretion, once a finding is made as to the number of nights the band is applied irrespective of any other circumstances. The only discretion is that applied by the judge in this case under the Child Support (Maintenance and Special Cases) Regulations 2000, SI 2001/155, reg 7(4). That is the discretion to decide to use a different period to work out the amount of time the children were staying. This leads to many problems and they are issues that should be considered before shared care arrangements are agreed. This case has not assisted parents to determine exactly how to calculate whether a case is in band 3 or band 4 given the way in which the judge has applied the Child Support (Maintenance and Special Cases) Regulations 2000, SI 2001/155, reg 7(4).
Are there any grey areas or unresolved issues remaining?
The issue of shared care is one of the most difficult areas left within the child maintenance remit. Parents cannot contract out of the child support system for more than 12 months due to the effect of Child Support Act 1991 (CSA 1991), s 4.10(aa)—this means they may well end up disputing whether children have stayed for an extra night when this moves a case into a different band.
What lessons can be learned from the case? What should lawyers advise their clients now?
It is important that clients are fully appraised of how the child support system works. They need to know that whatever agreement is reached the other parent has the right to go to the CMS after 12 months even if a court order is made for maintenance. Agreements for shared care should recite the exact number of nights and what the parties have agreed with respect to maintenance. The case above was a case determined before the jurisdiction of the CMS was established, however, the same problems can arise under the new system. Clients need to access CMOptions for advice as to their liability.
Are there any trends in this area and what are your predictions for future developments?
It has been a tragedy for parents that the regulations imposed by CSA 1991 allow for so little discretion. The implementation of a rigid set of rules described by the UT judge in this case as ‘tramlines’ is particularly unfair in cases such as this. It is more and more common for there to be shared residence arrangements between parents. Making one parent have all the responsibility for maintenance in this situation is often very unfair—for example, where the parent who has the children one or two nights per annum more than the other is also the major breadwinner, the other parent may end up with a responsibility for maintenance to that parent. Discretion is particularly needed in this area of child maintenance and discretion needs be given to the tribunals in such circumstances to achieve fairness.
From 1993 until 1999 Liz Cowell sat on the Child Support Appeal Tribunal, as it then was. She has sat as a deputy district judge since 1999. She is a family law arbitrator and has 35 years of experience in family matters—until very recently she was a member of Resolutions Child Support Committee.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.
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