The Upper Tribunal (Administrative Appeals Chamber) has produced two useful decisions on the question of “day-to-day” care in the context of child support disputes. It is well enough known that if the two parents provide equal care for their child then there is no jurisdiction for the Child Maintenance Service (CMS), leaving the parent who wished to receive money from the other parent to raise an action under s 1 of the Family Law (Scotland) Act 1985 in the old-fashioned way.
Under the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 the simple criterion was the number of nights which the child spent with each parent (reg 7), and if the number of nights and the amount of day-to-day care was the same, the parent who was not entitled to child benefit was the non-resident parent (reg 8).
The position under the current scheme is different. Regulation 50 of the Child Support Maintenance Calculation Regulations 2012 provides that a person cannot be treated as a non-resident parent for child support purposes unless he provides day-to-day care to a lesser extent than the other parent. The nights are counted, but only as a factor in the assessment of day-to-day care, and are regarded simply as an opportunity to provide that care. If the care provided by the non-applicant is not lesser, that non-applicant is not non-resident and thus CMS has no jurisdiction at all. It is only when reg 50 is not in play that the number of nights is relevant in the calculation of the amount of liability under reg 46. In practice, of course, that regulation only rarely does come into play.
The implication of Judge Jacobs' remarks in MR v SSWP and LM  UKUT 340 (AAC), expanding on the comments of Judge Gray in CF v SSWP  UKUT 276 (AAC), is that “day” in this context must mean the period of 24 hours and not “day” as opposed to “night”.
It is accordingly possible for a parent to exercise contact for a lesser number of nights than the other parent, and yet not to be a non-resident parent for child support purposes if his day-to-day care is equal to, or greater than, that of the other parent.
This makes the job of the First-tier Tribunal difficult because, as Judge Jacobs says, it must sometimes come to a view on the evidence on an “impressionistic” basis which may be difficult to explain with sufficient clarity to avoid an error of law.
The other implication of these cases is that reg 50(3) of the Maintenance Calculation Regulations 2012 seems to be pointless. It reads: “Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day-to-day care to a greater extent than any other person.”
The important phrase is “in the absence of evidence to the contrary”, because if either party has based their argument on reg 50 of MCR, evidence will be led to the contrary. If that evidence is not preferred, that parent will be the non-resident parent. If it is preferred, they cannot be so. The criterion of child benefit can never reach the stage of being relevant and accordingly reg 50(3) must be otiose.
John M Fotheringham is an accredited specialist in child law
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