A C-V (Father) v Secretary Of State & Anor

For child-support purposes, where boarding school removes some of a child’s nights from parental care, the relevant inquiry is the hypothetical position: what would normally have happened if the child had not become a boarder. The existing care arrangements, including overnight contact, may provide the appropriate starting point. A residence order, refusal of a shared-residence order, or receipt of child benefit should not be treated as determinative without adequate reasoning. The court indicated that continued pre-boarding arrangements could mean that a parent remains a person sharing day-to-day care and retains the statutory reduction.

A father challenged a child-support assessment after his son began boarding at school. Before boarding, the father was treated as sharing day-to-day care because the child stayed with him, on average, two nights a week. The Child Support Tribunal upheld the assessment treating the mother as the sole person with day-to-day care. The Child Support Commissioner dismissed the father’s appeal on 16 October 2001. The Court of Appeal considered whether there was an arguable error in the tribunal’s approach to the hypothetical care arrangements absent boarding, and whether the father retained day-to-day care under the Child Support Act and Regulations.

Permission granted to a limited extent. Lord Justice Ward granted permission to appeal on the question whether the father retained day-to-day care within the meaning of the Child Support Act and the Regulations. The respondents were to be served with a copy of the judgment.

1. The relevant inquiry where a child attends boarding school is hypothetical. The tribunal had to ask what would have happened if the child had not gone to boarding school. It was highly arguable that the parents would have continued their previous arrangements, including the father’s 104 overnight stays.
2. The tribunal was arguably wrong to treat the residence orders as determinative. The relevant order might instead have been the contact order providing for the child to stay overnight with his father. The making of a residence order in favour of the mother and the absence of a shared-residence order did not, without further reasoning, resolve the hypothetical question.
3. The tribunal’s reliance on the mother’s receipt of child benefit was also difficult to justify. The judgment regarded that fact as neither determinative nor apparently relevant to the counterfactual inquiry.
4. If the father continued to provide care for 104 nights, that would satisfy the definition of day-to-day care in regulation 1(2), and could preserve the reduction calculated under regulation 20. This was expressly a preliminary view, reached without hearing argument from the respondents.

The father’s separate argument that payment of the school fees made him the sole person with care had failed and was not renewed. The Secretary of State was invited to reconsider the position and, if appropriate, avoid the further expense of a full appeal. Counsel assistance from the Citizens Advice Bureau and the Bar Pro Bono Unit was to be sought if required.

• Court of Appeal (Civil Division): On 22 May 2002, Lord Justice Ward granted permission to appeal on the limited issue whether the father retained day-to-day care.
• Child Support Commissioner: Mr Levenson dismissed the father’s appeal on 16 October 2001.
• Child Support Tribunal: On 15 February 2000, the tribunal upheld the child support officer’s assessment treating the father as the absent parent, the mother as the parent with care, and the father as no longer qualifying for a shared-care reduction.