APPELLANT: MR B...	Decision No:  CSC4/98

1ST RESPONDENT: THE CHILD SUPPORT OFFICER
2ND RESPONDENT: MS D...

	THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 & 1995

	Appeal to the Child Support Commissioner

	on a question of law 

	from the decision of the
 
	Belfast Child Support Appeal Tribunal

	dated 12 December 1997 

	DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal by the father of the relevant children against the decision of the Tribunal to the effect that the father was obliged to pay child support maintenance to the mother in respect of E....

2.	The background to this case is somewhat complicated but, the underlying facts can be summarised in the following form;  The father and the mother are the parents of four children including T... and E....  Following their parents' divorce the children spent equal time in each parent's home as agreed and stated in an Order of the High Court.  Payment of Child Benefit was administered by making payments for two children to each parent.  The mother received Child Benefit for T... and E... while the father received Child Benefit for the other two children.  The mother applied for Child Support Maintenance and the father was assessed as being required to pay maintenance in respect of T... and E....  On 11 November 1996 the father asked for a review of the maintenance assessment because T... was apparently staying with him an extra 26 nights per year.  The Child Support Officer reviewed the assessment in light of this information and decided that the father was no longer liable to pay maintenance for T... to the mother.  The Child Support Officer concluded that the father was the person with care of T... and therefore was not to be treated as the absent parent in relation to T....  The father then asked for a further review because E... was staying with him extra nights also.  The mother asked for a review at the same time as she disputed these facts and in particular the information supplied by the father.  The second tier review Child Support Officer reviewed but did not revise the maintenance assessment.  This officer decided that the father was still to be treated as an absent parent in respect of E... but confirmed that the father was not to be treated as an absent parent in respect of T....  Both parents appealed this decision.  The father appealed as he disagreed with the decision on the grounds that he had his daughter for 13 nights extra in addition to his usual time with his children.  He did not state which daughter he was referring to but it seems that the reference was to his daughter E....  The mother also appealed against this decision on the grounds that she disagreed with the decision and believed that it did not reflect the true care arrangement for T... and addition the flexibility of the care provided for the two other children.  In the circumstances the case came before a Child Support Appeal Tribunal which dealt with the issues in relation to both E... and T....

3.	The Tribunal came to the following findings of fact material to its decision:-

		"1.	The shared care arrangements for the children were established 
			prior to 10 May 1994, when Mr Justice Sheil made such shared 
			care arrangements an order of court.

			The arrangements were that each child was to spend one week 
			with Mr B..., then the next week with Ms D..., with 
			this arrangement to continue throughout the year.

		2.	With regard to E..., the panel feel that care of the child is 
			50/50 to each parent - and they are not going to count days 
			and weeks to decide the matter as suggested would be improper 
			by Mr B....

		3.	The panel have not been influenced by the fact that Mr B... 
			does buy the children major items of clothing, pays their school 
			fees and attends school functions.

			It seems perfectly reasonable that the parent with the much 
			higher income - in this case Mr B... - should be paying for 
			expenses that Ms D... could not possibly afford to pay 
			at the moment.

		4.	E...'s 50/50 care by both parents continues following the court 
			order referred to in paragraph 1 above.  No evidence was 
			presented today to indicate that this shared care arrangement 
			had changed in any major fashion since 10 May 1994.

		5.	No evidence regarding shared care of T... was presented 
			today verbally, but both parties, Mr B... and Ms D... 
			have both provided written evidence to the fact that, 
			since September 1996, T... has been staying with her 
			father on Monday nights - to facilitate T... attending 
			Cadets.  This would mean T... is staying with her father 
			on average an extra 26 nights per year which would mean 
			that, on average T... is spending approximately 
			4 nights per week with her father, and in the terminology 
			of the Child Support Agency, cannot be considered to be 
			an "absent parent" with regard to T....

		6.	The matter is to be referred back to the Child Support 
			Officer so that the corrections as outlined regarding 
			(1) net income of Mr B... (2) Mr B...'s housing costs 
			and (3) Ms D...'s net income."

4.	The Tribunal gave the following reasons for its decision:-

		"1.	Shared care of E... - means exactly that.  The child is in 
			the care of her mother for one week then the next week 
			with her father.  That was the accepted arrangement when 
			this was made an order of court in May 1994 and there has 
			been no evidence presented today to show that there has 
			been any substantial change to this arrangement.

		2.	It was accepted by Ms D... that since September 1996 
			T... was spending Monday nights at her father's to 
			facilitate her attending Cadets.  This would mean that 
			on average T... would now be spending an extra 26 nights 
			per year with her father, this on average making her stay 
			on average with her father for 4 nights out of 7 and 3 
			nights out of 7 with her mother.

		3.	The extra nights any child may or may not spend with a 
			parent during summer holidays away with a parent have 
			been disregarded.  To do otherwise would be contrary to 
			the spirit of the law."

5.	The unanimous decision of the Tribunal was in the following terms:-

		"(1) The issue of shared care of E..., appeal disallowed.  Panel 
		find that E... is in the care of her father and mother equally as 
		per court order of 10 May 1994 when shared care arrangements of 
		week about to each parent was to continue.

		(2) The issue of shared care of T... - appeal allowed.  Panel accept 
		Mr B... has, on average, care of T... for 4 nights out of each 
		week, therefore he cannot be considered an absent parent vis a 
		vis T....

		DIRECTIONS TO THE CHILD SUPPORT OFFICER:

		Bearing in mind corrections regarding Mr B...'s net income, Mr 
		B...'s housing costs and Ms D...'s net income, maintenance for 
		E..., is to be recalculated from 8.11.96."

6.	Therefore the appeal Tribunal confirmed the second tier review officer's decision that the father remained liable to pay maintenance in respect of E... and was no longer liable to pay maintenance in respect of T....

7.	The father then appealed to a Child Support Commissioner.  The grounds of his appeal can be summarised as follows:-

		(i) 	The Tribunal did not establish how many nights E... spends with 
			each parent;

		(ii) 	The Tribunal found the care arrangements had not changed in a 
			major fashion;

		(iii)	The Tribunal offered no reason why the father's evidence was not accepted;

		(iv) 	The Tribunal failed to consider the change in the care arrangements;

		(v) 	The Tribunal erred in disregarding the extra nights spent on holiday; and

		(vi) 	The Tribunal may have erred in not being influenced by the nature of the care provided.

	All of these points related to the decision in relation to E... and no point in this appeal has been taken by the parents or the Child Support Officer in relation to the Tribunal's decision concerning T....

8.	Leave to appeal was refused by the Chairman of the Tribunal but leave was granted by a Commissioner on 10 September 1998.  By direction a Commissioner specified that the Child Support Officer is to be the first respondent to this appeal and the mother the second respondent.  By letter dated 28 June 1998 the mother made various submissions which, in substance, made the point that E... did not in fact spend extra nights with her father during 1996 and also questioned the father's motivation in bringing the proceedings to a Tribunal and to a Commissioner.  By letter dated 27 April 1999 she re-emphasised the point that she contested the father's allegations that E... had spent extra nights with him in 1996.
9.	Mr Mackle, advice co-ordinator of Gingerbread, Northern Ireland, made written submissions on behalf of the father.  Mrs McCann, the Child Support Officer now concerned with this case, also made written submissions which, to a large extent supported those submissions made by Mr Mackle.  In the circumstances I am satisfied that the appeal can properly be determined without a hearing. 

10.	It is helpful to set out the legislation relevant to this case.  The Child Support (Northern Ireland) Order 1991 provides that to have jurisdiction to make a maintenance assessment there must be a "person with care", and "absent parent" and a "qualifying child".  These terms are specifically defined in Article 4 of the Order.  Article 38 of the Order makes provision for certain types of case to be treated as "a special case".  The Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992 further provide for the calculation of Child Support maintenance and the determination of special cases.  Regulation 20 provides as follows:-

		"Persons treated as absent parents

		20.-(1)  Where the circumstances of a case are that -

		(a)	two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

		(b) 	at least one of those persons is a parent of that child,

			that case shall be treated as a special case for the 
			purposes of the Order.

		(2)	For the purposes of this case a parent who provides day to day care for a child of his in the following circumstances is to be treated as an absent parent for the purposes of the Order and these regulations-

		(a)	a parent who provides such care to a lesser extent than the other parent, person or persons who provide such care for the child in question;

		(b) 	where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to a greater or equal extent than any other person who provides such care for that child-

			(i) the parent who is not in receipt of child benefit for 
			the child in question, or

			(ii) if neither parent is in receipt of child benefit for 
			that child, the parent who, in the opinion of the child 
			support officer, will not be the principal provider of 
			day to day care for that child."

	Accordingly where both parents provide day to day care they each satisfy the definition of "person with care" as defined in the Order.  To facilitate the calculation of Child Support maintenance the Child Support Officer must then establish who provides care to the lesser extent and that parent is then "to be treated as an absent parent".  The amount of maintenance payable is apportioned to reflect the number of nights that that parent has day to day care of the child.

11.	The term "day to day care" is defined in regulation 1(2), (as amended by The Child Support and Income Support (Amendment) Regulations (Northern Ireland) 1995 and The Child Support (Miscellaneous Amendments No 2) Regulations (Northern Ireland) 1995), which states, inter alia, as follows:-

		""day to day care" means -

		(a) 	care of not less than 104 nights in total during the 12 month period ending with the relevant week; or

		(b) 	where, in the opinion of the child support officer, a period other than 12 months but ending with the relevant week is more representative of the current arrangements for the care of the child in question, care during that period of not less in total than the number of nights which bears the same ratio to 104 nights as that period bears to 12 months,

			and for the purpose of this definition -

			(i)...

			(ii)...

			(iii)...

			(iv) in relation to a review under Article 19, 20(1)(a), 
			(1)(b), (2), or (6A) or 21(1)(a) to (c) or (6) of the 
			Order, "relevant week" shall have the meaning ascribed to 
			it in sub-paragraph (a), (c), (d), (e) or (f), as the case 
			may be, of the definition of "relevant week" in this 
			paragraph;"
12.	The original review conducted in this case was a review on a change of circumstances provided for in Article 19 of the Order (as amended by Article 6 of the Child Support (Northern Ireland) Order 1995).  The relevant week referred to in sub paragraph (iv) of the definition of "day to day care" is defined at regulation 1(2) of the Regulations in the following terms:-

		""relevant week" means -

		(a)	...

		(b)	...

		(c) 	in relation to a review under Article 19 of the Order, the period of 7 days immediately preceding the date on which the application for review is received by the Department;

		(d)	...

		(e) 	in relation to a review under Article 20(2), (6A) or 
			21(1)(c) of the Order, the relevant week which was 
			applicable for the purposes of the making of the 
			maintenance assessment which is being reviewed; or

		(f)	..."

13.	In relation to the father's first ground of appeal - namely, that the Tribunal did not establish how many nights E... spends with each parent - it is important to remember that the law defines "day to day care" as "care of not less than 104 nights" in a specified 12 month period.  It is clear that the Tribunal decided that it would not count days and weeks to decide the matter.  Both the father and the Child Support Officer contend that the Tribunal was required to establish how many nights the respective parents spent caring for E....

14.	I accept that this sort of calculation can cause considerable difficulties for the adjudicating authorities but it seems to me that there is no alternative but to take this approach.  By not so doing I conclude that the Tribunal erred in point of law.  

15.	In relation to the father's second ground of appeal - namely that the Tribunal found that the care arrangements had not changed in a major fashion - it is important to remember that the determination of "day to day care" requires what amounts to an arithmetical calculation to decide whether the number of nights during which care is provided equates to 104 nights in a period of 12 months.  It must be noted that there is no requirement in the legislation that the care arrangements have to change substantially or in a major fashion.

16.	As Mrs McCann submitted, the adjudicating authorities must make their decisions in these sort of cases on the evidence available.  The Tribunal in its reasons specifically stated that "there has been no evidence presented to day to show that there has been any substantial change to this arrangement."  In light of the arithmetical approach required by the legislation I conclude that the Tribunal was wrong in point of law, not in finding that the care arrangements had not changed in a major fashion, but in wrongly holding that the care arrangements have to change substantially before it could consider whether it was entitled to come to a different conclusion in light of a change of circumstances.

17.	In relation to the father's third ground of appeal - namely that the Tribunal offered no reason why the father's evidence was not accepted - it seems clear that the father did give evidence that E... was staying with him an extra 13 nights per year.  However the Tribunal accepted that the overall pattern of care was "50/50".  Implicitly the Tribunal has not accepted the evidence offered by the father on this point.  It is a matter of simple logic that it is possible that a slight change to the pattern of care could mean that one parent, who was originally the parent with care, was now providing care to a lesser extent and accordingly could conceivably now be the absent parent in accordance with the legislation.  

18.	In these circumstances the issue whether or not E... stayed an extra 13 nights in the first 7 months of 1996 was potentially relevant if not crucial.  In the circumstances the Tribunal ought to have specifically dealt with the issue whether this evidence from the father was accepted or rejected.  In not so doing I conclude that the Tribunal erred in point of law.

19.	In relation to the father's fourth ground of appeal - namely that the Tribunal failed to consider the change in the care arrangements - there is no doubt that this point is closely linked to the father's third ground of appeal.  It is clear that, from the reasons for the Tribunal's decision, the Tribunal relied heavily on the fact that a High Court Order had been made outlining the care arrangements for the children.  It seems that the Tribunal may have assumed that there was a presumption that such arrangements could never have been altered other than by another Court Order.

20.	There is no doubt that the High Court Order of May 1994 is of considerable relevance to the present case in relation to E... but, in my view, it is important for the Tribunal to remember that its duty is to deal with what the situation actually is rather than what the situation ought to have been.  Accordingly, the Tribunal ought to have considered that the arrangements in relation to E... could have altered since the making of the High Court Order and the Tribunal is not entitled to decline to consider this possibility.  In the circumstances I conclude that the Tribunal erred in law by not considering this possibility.

21.	The father's fifth ground of appeal - namely that the Tribunal erred in disregarding the extra nights spent on holiday - is also a point that is linked to the general responsibility of the Tribunal to consider the actual facts of this case.  As Mrs McCann submitted, "in looking at the pattern of care it is incumbent on the Tribunal to look at all the care provided in the period concerned."  She also submitted that, if in that period a parent has care of a child for a time that in fact spans a holiday period, then that time should be taken into account by the adjudicating authorities if it is indicative of the current care arrangements.

22.	The Tribunal in its reasons for decision specifically disregarded the extra nights that E... spent during the summer holidays.  I have not been directed by any of the parties to any authority for this approach.  Accordingly, I conclude that the Tribunal erred in law by disregarding entirely the extra nights spent on holiday.

23.	The father's sixth ground of appeal - namely the Tribunal may have erred in not being influenced by the nature of the care provided to E... - is a much more contentious point.  

24.	Mr Mackle, on behalf of the father, submitted that the Tribunal might have erred in law by concluding that it had not been influenced "by the fact that [the father] does buy the children major items of clothing, pays their school fees and attends school functions."  Mr Mackle submitted that the nature of the care provided should be given consideration in deciding which parent provides care to a greater or lesser extent.

25.	Mrs McCann submitted that the legislation does not permit the nature of the care to be relevant but submitted that "the day to day care" question must be ascertained by calculating the number of nights.

26.	While appreciating that the adjudicating authorities must have difficulty applying this legislation, it seems to me that the Tribunal was not entitled to take into account the nature of the care provided in the sense set out by Mr Mackle.  In the circumstances I conclude that the Tribunal was correct in not taking direct account of this element and, accordingly, I hold that the Tribunal did not err in point of law in this respect.

27.	Mrs McCann introduced an additional point in her written submissions to the effect that, in this particular case, the Tribunal erred in law by failing to identify the relevant period for the change of circumstances review and accordingly erred in law in not so doing.

28.	In this case a change of circumstances review was requested on 11 November 1996.  The relevant week for the purposes of that assessment, as defined by sub paragraph (c) of the definition of "relevant week" (see paragraph 12 herein) was the week of 4 - 10 November 1996.  The father asked for a second tier review of the assessment (provided for by article 20(2) of the Order) as he alleged that he had care of his daughter E... for an extra 13 nights per year.  The Tribunal therefore was required to consider which parent provided the care for E... to a lesser extent than the other.  The Child Support Officer and the Tribunal were required to consider the definition of "day to day care" and also were required to establish the relevant period over which this care had to be considered.  Mrs McCann submitted that the Child Support Officer and the Tribunal, in order to deal with this question of "day to day care", were obliged to consider the care arrangements of the qualifying child in the 12 month period ending with the relevant week, or such other period ending with the relevant week if such a period was more representative of the current arrangements for E... - see regulation 1(2).  She submitted that the Child Support Officer and the Tribunal were both obliged to consider these arrangements in a period ending with the same relevant week as had been identified for the change of circumstances review in the first place.  

29.	It is clear that the Tribunal failed either to identify this period or consider the evidence in light of the period identified.  In the circumstances I conclude that the Tribunal erred in point of law in not so doing.

30.	In the circumstances I conclude that, for the reasons set out in paragraphs 14, 16, 18, 20, 28 and 29, the Tribunal has erred in point of law.  Accordingly I set aside the decision.  I conclude that the case must be referred back to a freshly constituted Appeal Tribunal for a complete rehearing.  Although there was no issue concerning T... between the parties to the present appeal, in my view I do not have jurisdiction to restrict the issues before the new Tribunal only to those concerning E....  However the Tribunal ought to take account of the conclusions in matters of law set out in the decision herein.

(Signed): J A H Martin

CHIEF COMMISSIONER

12 October 1999