A recent Upper-tier Tribunal decision has clarified the position in child maintenance cases where both parents have equal amounts of child care.
The father in this case had been assessed by the Child Maintenance Service to pay weekly maintenance because he cared for his child for 175 mights or more, even although there was an agreement that care should shared equally. The First Tier Tribunal agreed with this and also decided that because there were a number of nights when the child was in the father’s care but did not stay at the father’s address, this reduced his care to 172 nights, which meant it fell below the 175 nights threshold that would have halfed the maintenance liability.
The Upper Tribunal ruled that both aspects of this decision were wrong. The First Tier Tribunal had became unduly preoccupied with care proveded “overnight” as opposed to the “sharing of day-to-day care”. In doing this it had failed to apply regulation 50 of the 2012 regulations, which sets the parameters for determining whether a parent is considered to be sharing care or is deemed to be non-resident and therefore liable to pay maintenance.
Although regulations 46 and 47 relate to calculating the number of overnights in cases where care is not shared, the Upper Tribunal ruled that they should only be applied if the parent is being considered as non-resident under regulation 50. In this case the agreement or court order for shared care meant that overnights didn’t need to be calculated. Overnight care is not a trump card but is one factor to beconsidered along with others.
The Tribunal judge also commented that for overnight care to count it is a requirement that the child stays at the same address as the non-resident parent, but that need not be restricted to that parent’s usual address.
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