B (A Child)

When deciding staying contact or shared residence, the court must identify the arrangements that best serve the child’s welfare without considering their effect on child-support liability. Statutory thresholds and anomalies, including financial consequences of crossing the 104-night threshold, cannot justify increasing or reducing contact. The welfare checklist does not alter that rule. It is impracticable and wrong in principle to predict how different maintenance payments will affect the two households and the child. Contact arrangements must be determined first; liability under the Child Support Act 1991 then follows the statutory scheme.

The father appealed against an order made by the Chesterfield County Court on 17 March 2006, varying an earlier contact order. The variation reduced his daughter’s staying contact from at least 104 nights each year to fewer than 104 nights. Under the applicable old regime of the Child Support Act 1991, that change removed his discount and increased his interim liability from £69.48 to £97.26 per week.

The father argued that the recorder should have considered the financial consequences, including the effect on the child’s welfare and the parents’ capacity to meet her needs. The central question was whether a court determining contact or shared residence should have regard to the impact on child-support liability.

The appeal was dismissed. Wilson LJ gave the judgment, and Mummery LJ agreed.

1. The purpose of a contact or shared residence decision is to determine the arrangements that are optimal for the child. The court must not adjust those arrangements to preserve a child-support discount, remove an anomaly, or mitigate the financial consequences of the statutory scheme under the Child Support Act 1991.
2. The first three arguments failed. Possible migration from the old regime to the new regime, the six-sevenths reduction applicable under the new regime where care fell between 52 and 103 nights, and the disproportionate effects of statutory thresholds were all irrelevant to the proper level of contact. The court applied the reasoning in Phillips v Peace [1996] 2 FLR 230: a statutory jurisdiction concerning maintenance could not be used to circumvent Parliament’s child-support scheme. It was even less appropriate to use contact jurisdiction for that purpose.
3. The welfare argument also failed. Although the child’s welfare is paramount under section 1(1) of the Children Act 1989, and section 1(3)(f) requires regard to each parent’s capacity to meet the child’s needs, it would be impracticable to calculate the differing maintenance liabilities under alternative orders and then assess their effects on the households and the child. It would also be wrong in principle, because it would reverse the proper sequence. The court must first determine the child’s arrangements without reference to child support; Parliament’s statutory scheme then determines the resulting liability.

The answer to the question raised by the appeal was therefore no.

1. Court of Appeal (Civil Division): On 23 November 2006, the appeal was dismissed. Wilson LJ gave judgment and Mummery LJ agreed: [2006] EWCA Civ 1574.
2. Chesterfield County Court: On 17 March 2006, Mr Recorder Maxwell Q.C. varied the contact order made on 5 July 2004, reducing some alternate weekend contact and bringing the father’s annual staying contact below 104 nights.