Tuesday, 19 June 2018

Child Support Reduced For Overnight Contact: New Case


You wouldn't try and get increased overnight contact with your child simply to reduce how much you have to pay by way of child support maintenance, would you? Perish the thought. Hold on to your seats and your World Cup programme as I tell you that some parents do precisely that!  The reason is that the amount of child support maintenance which is payable is reduced by how much overnight contact takes place so long as the overnights are for at least 52 nights in a year.  For example, the maintenance bill goes down by one-seventh for 52 to 103 nights in a year but by two-sevenths for 104 to 155 nights in a year. You'll find out how child support works from the standpoint of the parent who pays and the parent who receives in my book Breaking Law and you will also find there a template agreement which can be used where it could be more advantageous than child support or where child support does not apply. 

In an appeal case* just decided by the upper tribunal of the administrative appeals chamber (now that's a mouthful for you) it was confirmed that under the current law, what is relevant is the number of nights the payer is expected to have overnight contact during the 12 month period ahead of when maintenance is being assessed. The regulations provide that when deciding on any reduction to be made consideration is to be given to the terms of any contact agreement or court order or, if there is neither, whether a pattern of shared care has already been established over the past 12 months. The upper tribunal held that there was no requirement to adopt what was in the agreement or order or what the shared care pattern had been. All that was required was that consideration was to be given to them although there would have to be a proper basis for concluding that an arrangement was not going to reoccur in the future 12 months.

The appeal centered on the payer’s attempt to have maintenance assessed on the basis of a shorter future period of 12 months which the Child Maintenance Service can do if this is considered to be ‘appropriate’. The father’s quest was to have a four month period only to be taken into account. He argued that averaging over 12 months did not achieve a fair and equitable result because the far greater tine he was to have with the child during the four months was watered down when it was added to the 12 month residue. If that argument has succeeded, then he would have had no liability for the four months. But it failed before the first tier tribunal and on appeal. The former had decided that 12 months leveled out the peaks and troughs. The payee had contended that the four month period had been a one-off. The upper tribunal stated that a one-off period could quite rationally be subsumed in a 12 month period, particularly where it did not arise under any agreement and where it was an exception to a previously existing settled pattern of shared care. Its very exceptionality on the other hand might provide a basis for shrinking the 12 month period. There were no hard and fast rules. 

*JS v SSWP and another [2018] UKUT 181 (AAC)