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This is on the basis that there is no non-resident parent, either actual or deemed (as provided for in the Child Support Regulations 2000.) In turn, this means that the Court will have jurisdiction to make an order for child support, since the prohibition in s.8(3) of the Child Support Act 1991 does not apply. Following on from the 2012 Regulations then, a key question to consider in order to determine whether or not the agency has jurisdiction to make a calculation is whether or not there is a parent who provides day to day care to a lesser extent.

Crucially, this is not as simple as considering whether the parents have equal shared care of the child – that is, they spend an equal number of days and nights with the child. This was made explicit by Upper Tribunal Judge Gray in CF v SSWP & CG [2018] UKUT 276, who held that in order for there to be no maintenance calculation, there must be “equal responsibility for day to day care”. The judge made clear that equal responsibility for day to day care should not be approached on a strictly mathematical basis – instead, he held, it “involves more than the mere counting of days and nights; it involves the exercise of judgment in respect of parenting tasks and responsibilities.”

Of course, there will inevitably be some nexus between the day to day care test, and the fact that parents spend equal time with a child. As Upper Tribunal Judge Jacobs commented in MR v SSWP & LM [2018] UKUT 340, “the time that a child spends with a parent is important, but not just for itself. The longer a parent spends with their child, the greater the chances to provide care. That is why overnight care is relevant – because protecting children and responding to their needs at night is part of day to day care – and why it is not decisive – because the night is only part of the time.”

So, how can it be determined whether there is a parent who provides day to day care to a lesser extent? As a first step, a court order which sets out an equal division of the child’s time with both parents may be helpful. However, while this can act as evidence of how care is shared, it will not be determinative. Instead, guidance comes from MR v SSWP & LM [2018] UKUT 340. The judge emphasised that “the test is about providing care. […] What matters is the practical care that is provided.” So in assessing day to day care, practitioners are likely to find that there is no generalised approach. Rather, the court are likely to take into account a range of different factors which may indicate that one parent plays a more active role than the other. A parent may be considered to have taken on day to day care to a greater extent, for example, if they are the primary contact at the child’s school or nursery, or the child is registered with their local GP practice. If one parent overwhelmingly organises and attends the child’s activities, hobbies, or playdates, that may also be indicative. The parent who organises and pays for childcare could argue that they provide the bulk of day to day care. Similarly, if one parent alone pays for uniforms and school meals, they could attempt to rely on that. However, a note of caution – an important feature of MR v SSWP & LM [2018] was Judge Jacobs’ view that “nor is the test just about finances. Of course, the money is important and some aspects of care involve money…” Financial support alone is not determinative of the issue.

Subsection 3 of Regulation 50 provides that where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person. This has often been taken to mean that receipt of child benefit creates a rebuttable presumption that that parent is providing care for the majority of the child’s day to day care, and so should receive child maintenance. However, recent guidance from the Upper Tribunal suggests otherwise. In CF v SSWP & CG (CSM) [2018] UKUT 276 (AAC), Judge Gray was emphatic that “there appears no need for the operation of regulation 50(3).” He held that the child benefit subsection “cannot be used, in my judgment, to enable an overall view to be taken so that where there is evidence of some day to day care on both sides, the provision operates as a rough and ready tie-break”, underlining instead that “the evaluation of the extent of day to day care provided by each parent must be done on all of the evidence.”

Per Judge Gray, the correct approach in considering receipt of child benefit is summarised thus: “weight can be given to the receipt of child benefit only in the absence of evidence to rebut the presumption that the applicant is providing greater day to day care to a greater extent than any other person. If there is any evidence as to a division of care it must be assessed. If, on assessment it is found that either the day to day care is provided equally, or the non-applicant parent provides greater day to day care in fact, there is no need to apply the provision because regulation 50(2) is sufficient to prevent the non-applicant parent from being treated as a non-resident parent. Where, on assessment, the care provided by the applicant is found as a fact to be greater, the receipt of child benefit is irrelevant.”

In summary therefore, practitioners considering equal shared care and child support must look to a range of factors, and think creatively as to evidence that they can rely on to show that their client is the parent who provides the majority of day to day care. This is not an area in which a ‘one-size-fits-all’ approach can be taken, and it will not be as simple as looking only at which parent receives child benefit, which parent has a greater financial commitment to the child, or which parent spends a larger proportion of time with them.

Kate Strange, Pupil, 1 Hare Court

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