Child-Villiers v Secretary of State for Work & Pensions & Anor

For child-support purposes, the question whether a parent provides day-to-day care must be determined under the statutory scheme, not by treating a residence order or payment of school fees as conclusive. Where a child attends boarding school, Child Support (Maintenance Assessment Procedure) Regulations 1992, regulation 27 requires the tribunal to ask who would usually provide day-to-day care if the child were not boarding. The tribunal must assess the likely level and frequency of care by each parent, including whether each would provide care for at least two nights per week on average. A residence order is relevant only insofar as the parties might be expected to comply with it. The case was remitted because the tribunal and Commissioner had misdirected themselves and failed to determine the necessary hypothetical question on the evidence.

The father appealed from a decision of the Child Support Commissioner, who had upheld a Child Support Tribunal decision concerning his son. The tribunal had treated the mother as the sole person with care and withdrew the father’s shared-care allowance. The child attended boarding school, while court orders provided for substantial contact with the father during weekends and holidays. The father argued that he should be treated as the person with care, partly because he paid the school fees. The central issue was how regulation 27 applied when boarding interrupted the child’s ordinary care arrangements, and whether the father would otherwise have provided day-to-day care sufficient to qualify for shared care.

1. Appeal allowed and remitted. The father’s appeal was allowed. His appeal against the Child Support Officer’s assessment was remitted to the Tribunal for rehearing on an up-to-date evidential basis.
2. Payment of boarding-school fees did not make the father the person providing day-to-day care. The statutory scheme focuses on actual or hypothetical care, rather than financial responsibility for education.
3. Under regulation 27, the Tribunal had to determine who would usually provide day-to-day care during the boarding period if the child had not been at boarding school. Regulation 1(2) required consideration of whether either or both parents would provide care for at least two nights per week on average.
4. The statutory regime was self-contained. The refusal of a shared-residence order was not determinative. A residence order was relevant only to the extent that the parties might be expected to comply with it. Receipt of child benefit could assist in deciding which of two persons providing care was to be treated as the absent parent, but did not determine whether the other parent provided day-to-day care.
5. The Tribunal had failed to assess the likely care arrangements on the required hypothesis. Its reasoning treated the refusal of a shared-residence order as effectively conclusive. The Commissioner failed to correct that error and gave inadequate reasons. The Tribunal was therefore required to reconsider the evidence, including the arrangements before boarding school and the parties’ competing accounts.

• Court of Appeal (Civil Division): allowed the appeal from the Child Support Commissioner and remitted the matter to the Child Support Tribunal for rehearing.
• Child Support Commissioner: dismissed the father’s appeal from the Tribunal’s decision and upheld the assessment.
• Child Support Tribunal: dismissed the father’s appeal against the Child Support Agency’s assessment.