CCS/2861/2001

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	By consent, I dismiss the father’s appeal against the decision of the Sheffield appeal tribunal dated 29 May 2001.

REASONS

2.	I held an oral hearing of this appeal at which the father and the mother of the “qualifying children” appeared in person and the Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to all three of them for their helpful submissions.

3.	This case has a long and complicated history.  Happily, it is unnecessary for me to set it all out in detail but the sequence of decisions is important.  The mother is the “person with care” of the qualifying children and she applied for child support maintenance in January 1997.  In February 1997, a maintenance enquiry form was issued to the father (“the absent parent”) and he promptly completed it and returned it, mentioning that the children sometimes spent nights with him.  A maintenance assessment was made in June 1997, with effect from 31 March 1997.  It was made on the basis that the father did not provide “day to day care” as that term is defined in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.  That part of the decision was not made explicit but the father accepts he could have deduced it from the explanation of the assessment.  In practical terms, regulation 1(2) provides that a person provides day to day care to a child who spends on average at least two nights a week with him or her.  An absent parent who provides day to day care is said to have “shared care”, although that is not a statutory term, and that usually results in a lower maintenance assessment being made.

4.	On 6 May 1998, following notification by the father of a change in his housing costs, a child support officer reviewed the earlier assessment with effect from 5 October 1997 (later changed to 6 October 1997).  The father requested a second tier review on a number of grounds including a claim that he provided day to day care for the children.  The child support officer accepted that the father had day to day care of the children and accordingly, on 6 August 1998, reviewed the decision of 6 May 1998.  The mother appealed.  In a decision given on 1 March 1999, the Sheffield child support appeal tribunal accepted that the father did provide day to day care.  The mother appealed to a Commissioner who, on 21 June 2000, set the tribunal’s decision aside on the grounds that they had given inappropriate directions and had given inadequate reasons for their decision.  The case was remitted to another tribunal who sat on 9 April 2001 and 19 May 2001.  The issue of day to day care was considered on the first day although the formal decision was not given until the second day.  The tribunal found that the father did not provide day to day care of the children.  He now appeals against that decision with my leave, granted solely because I considered it arguable that the tribunal had erred in placing the burden of proof on the father.  

5.	During the course of the hearing of the appeal, the father indicated that he no longer wished to have the tribunal’s finding in respect of day to day care reversed.  This was prompted in part by an arrangement made shortly before the hearing under the temporary compensation payment scheme established under section 27 of the Child Support, Pensions and Social Security Act 2000 but also by a recognition that it is difficult in 2002 to be entirely sure with whom each of the children stayed overnight on specific dates in 1996 or 1997.  The findings are not relevant to any current maintenance assessment.  However, as I have received submissions on the point of law arising in this case I will set out my conclusion on that legal issue and my reasons.

6.	The tribunal said:

“The burden of proving entitlement to shared care is upon the Respondent.

“That is because the Appellant is the parent with care.  She sought a Child Support Assessment.”

7.	The helpful submission written by Mr Wilson on behalf of the Secretary of State draws a distinction between the legal burden of proof and the evidential burden of proof.  In conventional proceedings in civil courts, the legal burden of proof requires the person on whom it is placed to provide enough evidence to enable the court to decide in his or her favour.  If that person does not produce such evidence, the other party will win even though he or she may have produced no evidence.  The legal burden of proof is also relevant in rare cases where evidence is so finely balanced that the court is unable to decide the case one way or the other on the evidence.  Then the person with the burden of proof will lose.  In the present case, the Secretary of State submits that the tribunal were right to hold that the burden of proof lay on the father because he was claiming to have day to day care and therefore asking that the case be treated as a “special case”.  However, in Payne v. Payne [2001] EWCA Civ 166 at [25], [2001] Fam. 473, Thorpe LJ said:

“Generally in the language of litigation a presumption either casts a burden of proof upon the party challenging it or can be said to be decisive of outcome unless displaced.  I do not think that such concepts of presumption and burden of proof have any place in Children Act 1989 litigation where the judge exercises a function that is partly inquisitorial.”

That seems to me to apply as much to a decision on an initial claim under the Child Support Act 1991 as it did in Payne v. Payne, where the Court had before it an application by one parent to remove a child permanently from the jurisdiction.  The proceedings may be adversarial as between the two parents but the role of the Secretary of State in child support cases is investigatory.  Tribunals, too, “form part of the statutory machinery for investigating claims” and at a hearing before a tribunal the Secretary of State’s role is akin to that of an amicus curiae (Regina v. Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 Q.B. 456 (also reported as appendix to R(I) 4/65) per Diplock LJ).  It cannot be right that an absent parent always has the burden of proof.  The duty of the Secretary of State is to deal even-handedly with the contentions of both parents.  Furthermore, it is the duty of the Secretary of State to ask the parties the appropriate questions in order to elicit the requisite information.  If there is an appeal, a tribunal must act even-handedly in the same way and must ask any questions that the Secretary of State omitted to ask.  It is not an option to resort to the legal burden of proof as a way of deciding a case.

8.	It may be different where a decision has been made and an application is made for supersession but I do not consider it practical to draw any such distinction in the present case.  Here the mother was the initial claimant.  The father raised the issue of day to day care in response to that claim.  The issue of day to day care appears not to have been properly investigated and inasmuch as an implicit decision was made on the issue in favour of the mother no reason for it was given.  The father then applied for a review on other grounds and added day to day care as a ground when he applied for a second tier review.  Again the issue appears not to have been adequately investigated before a decision was given in the father’s favour.  The mother was the appellant before the tribunal.  The tribunal gave a decision in her favour – one can ignore the decision of the first tribunal which was set aside by the Commissioner – and the father is the appellant before me.  Had the initial decision been made after a proper investigation and with proper reasons, a case could have been made for saying that the father had the legal burden of showing that a different decision should be made and still had that burden before the tribunal as the appeal arose out of his application for review but, as it is, I am at a loss to see why either party should be considered as having been at a disadvantage compared with the other when the case came before the tribunal to be investigated properly for the first time.  Indeed, the initial decision given in June 1997 was not even mentioned in the submission made by the child support officer to the tribunal and the child support officer made no attempt to justify the review decision under appeal or even to support it, saying:

“I submit the child support officer considered the evidence provided by [both parents] and decided to allow shared care of 2 nights per week.  …  However due to the conflicting evidence … I respectfully request the Tribunal to decided whether shared care did exist.”

9.	I do not consider that the legal burden of proof had any part to play in this case.  If it did rest on the father it was because he had made the material application for review, rather than because he was an absent parent asserting that he had day to day care, but it was not appropriate for the decision in this case to be based on the legal burden of proof.

10.	The second type of burden of proof identified by Mr Wilson is the evidential burden.  This may shift during the course of proceedings, depending on the factual issues that become important in the light of the other evidence in the case.  It may be characterised by the principle that the person who asserts a fact must prove it.  This may require some modification in the light of the investigatory role of the Secretary of State but nonetheless it holds good in child support cases when the person making the assertion can reasonably be expected to produce the evidence.  However, consideration of the evidential burden of proof could not help the tribunal in the present instance.  By the time of the hearing the mother had produced a list of dates showing those on which she believed the children were with their father for the night and those on which she believed they were with her or somewhere else.  The father had indicated the dates in respect of which he disagreed with her.  Each relied on his or her diary and memory when giving evidence.  Each was asserting that on particular dates the children were with him or her.  Neither was making a greater assertion than the other.  Each therefore had an equal burden.  Each had in fact produced evidence upon which the tribunal could have decided the case in his or her favour.

11.	As in Payne v. Payne, the tribunal had, in my view, to decide the case one way or the other on the evidence before it and was not entitled to rely on any burden of proof in making the decision.

12.	Ms Haywood, adopting Mr Wilson’s submission, submitted that the tribunal did just that and did not in fact rely on the burden of proof in reaching his final conclusion.  Thus, she argued, even if the tribunal did err as to the burden of proof, that did not vitiate the decision.  She pointed out that the tribunal had made findings as to which nights each of the children was with their father and had given the following reasons:

“1.	The Respondent was courageous enough to indicate that on a number of occasions he could not recall in truth whether he had had shared care;

2.	on some occasions he had no other evidence than his diary note ‘boys to me’.  The Tribunal found that, in general terms, that represented a note of intention between the parties but it could not properly be regarded as accomplished fact;

3.	on some occasions he had no detail at all in his diary;

4.	the Respondent again in relation to certain dates had raised challenges but those were geared to the dates when he was in fact challenging that the boys were with the Appellant.  For example, whilst not claiming that the boys were with him over the period 26 March 1997 to 2 April 1997 he had raised an issue which was inappropriate because he accepted that the boys were with … (the Appellant’s first husband) in London.

5.	the Tribunal found that for the most part the Appellant’s diary note was to be preferred.  It tended to concentrate on the issue being considered by the tribunal with relevant details of where the boys were on any particular occasion.  By way of contrast the Respondent’s note tended to concentrate on the relationship between the Appellant and himself in that it gave close details of what had happened between the parties rather than the specific issue of shared care of the boys.”

There is considerable force in Ms Haywood’s submission.  On the other hand, the tribunal considered the question of the burden of proof to be important enough to have spent some time on it at the hearing and it is not surprising that the father considers that the tribunal took it into account in determining the appeal.  That was my first impression too when reading the statement of reasons, particularly as the tribunal did not comment specifically on the father’s contention that reliance should not be placed on the mother’s evidence because an earlier list of dates she had supplied had been clearly demonstrated to be incorrect in a number of respects.  However, on reflection, the position is not so clear.  The tribunal did give positive reasons for accepting the mother’s evidence and so he was not just looking at weaknesses in the father’s case.  I accept the father’s point that the use of the word “courageous” was inappropriate but that does not take the case any further.  It seems to me that the tribunal’s reasoning can really only be evaluated in the light of the evidence he was considering and the diary evidence is not in the bundle of documents before me.

13.	Happily, it is not necessary for me to consider that evidence.  As the father does not seek new findings of fact, it is not necessary for me to decide whether the tribunal erred in any respect other than his statement as to the burden of proof and, having dealt with that in general term, I consider that I should say no more about the merits of this appeal as regards either the law or the facts.  The whole saga has plainly been stressful for both parents and I will join the Child Support Agency in trying to draw a line under it.  I formally dismiss this appeal but I record that that is with the consent of the appellant.

(signed)	MARK ROWLAND
Commissioner
28 November 2002