Parents who separate may find it difficult to come to an arrangement in relation to the care of their children. It may be the case that each parent argues over a timetable that is suited to their needs rather than the child’s.
Previously when going through the court process to obtain a Child Arrangement Order, parents would often find that one of them would be awarded residence of the children while the other was given contact. However, changes in legislation have saw the introduction of the presumption of parental involvement. This allows the Court to presume that both parents’ involvement in a child’s life will further the child’s welfare. This gives parents equal status and can arguably suggest there is no longer a need to impose child arrangement orders regulating shared living arrangements.
Lord Justice MacFarlane commented: “It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of everyday life for a child is accommodated without undue emotional fallout.
There is no longer any need, because of the change in the legislation, to impose a “shared” order. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent’.”
Building on this, shared care does not necessarily mean that the child’s time has to be split equally between each parent, but can be an arrangement suitable to individual families.
So what does all this mean for child maintenance?
Child maintenance is calculated on the gross earnings of the non-resident parent, in which case a percentage of their income will be deducted in relation to how many children they have. If both parents provide the day-to-day care of the child then, the parent providing care to a lesser extent is treated as the non-resident parent.
Generally it is assumed that the parent in receipt of child benefit for a qualifying child will be providing greater care than the other parent, unless evidence can be shown to dispute this. However, where there is a shared care arrangement in place, deductions from the child maintenance calculation will be made to the basic and reduced rate in accordance with the following:
- 52 nights (average of 1 night per week) to 103 nights reduced by one/seventh (band 1)
- 104 nights to 155 nights reduced by two/sevenths (band 2)
- 156 nights to 174 nights reduced by three/sevenths (band 3)
- 175 nights or more reduced by one half plus £7.00 further reduction for each child (band 4).
If it is shown that both parents provide care to the same extent then neither of them will be treated as the non-resident parent and no calculation for maintenance can be made, (regulation 50, The Child Support Maintenance Calculation Regulation 2012).
The recent case of JH v Secretary of State for Work and Pensions highlights the difficulties parents face today when a shared care arrangement impacts on the child maintenance paid. This case concerned the application of the different bands, outlined above; when shared care is in place.
In this case, a consent order for shared residence varied depending on when Easter fell and the uncertainty regarding the Christmas holiday period. This meant the number of nights the children would stay with each parent per 12 month period would vary each year. The assessment for child maintenance was carried out on the basis the children spent 172/173 nights with the father within the 12 month period based upon the consent order.
The Upper Tribunal allowed the father to appeal this decision whereby he was arguing he should fall within band 4, above, rather than band 3 as he had the children 176 nights in the preceding 12 month period when the calculation was made. The appeal was allowed on an error in law which concerned the proper application of regulation 7 of the Child Support (Maintenance Calculations and Special Cases) Regulation 2000. This was that the actual time spent should be considered rather than using the hypothetical calendar year set out in the consent order. It was asserted that regulation 7(4) allowed for an exception to regulation 7(3) where a “change in that frequency is intended”. As overnight contact varied each year the UT Judge stated he was able to apply his discretion in this case. The outcome of the case was that the father did not fall into band 4 and would remain in band 3 when paying maintenance as it was calculated that he had the children 174.3 nights.
The important factors to take away from this case are that there is little discretion when maintenance calculations are carried out, with the judge describing the rules as ‘tramlines’ rather than ‘guidelines’.
Clients therefore need to be fully aware of the implications a shared care arrangement can have on maintenance payments by a non-residence parent. They need to consider how many nights per 12 months each parent will have the children overnight and note this within any arrangement reached, and what is agreed in respects of maintenance. This will later save any disputes over which band you fall in based on an extra night or two the children have spent with you.
If you are having difficulties with care arrangements for your children or need advice in regards to child maintenance please do not hesitate to get in contact on 0151 375 9968.