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B (A Child) [2006] EWCA Civ 1574

Appeal by father against a contact order. Appeal dismissed.

In this judgment Wilson LJ considers the question of whether the court should have regard to the impact that making order for contact will have on the parent's liability under the Child Support Act. During the course of these proceedings the father contended that the mother was seeking to reduce his contact time to fewer than 104 nights as this would raise the amount due to her under the Child Support Act.

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Case No: B4/2006/1000

Neutral Citation Number: [2006] EWCA Civ 1574

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTERFIELD COUNTY COURT
MR RECORDER MAXWELL Q.C.
[LOWER COURT NO. CD03P03039]

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 23rd November 2006

Before :

LORD JUSTICE MUMMERY

and

LORD JUSTICE WILSON

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In Re B (A Child)

(Transcript of the Handed Down Judgment of WordWave International Ltd
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The Appellant father appeared in person

The Respondent mother also appeared in person

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice Wilson:
1. Before it determines the level of staying contact to be enjoyed by a parent with a child (or when under a shared residence order it defines the number of nights for which the child should reside in one parent's home and in the other parent's home), should the court have regard to the impact of its determination upon a parent's liability to pay child support to the other under the Child Support Act 1991? Such is the question raised by this appeal.

2. The appeal is brought by a father, who, like the respondent mother, appears in this court in person, as indeed both did in the court below, against an order for contact between him and his daughter, L, who was born on 23 February 1995 and so is now 11 years old, made by Mr Recorder Maxwell Q.C. in the Chesterfield County Court on 17 March 2006. In form the recorder's order was a comprehensive restatement of the provisions for contact between the father and L; but in effect it was by way of variation of an earlier order for contact between them made by Mrs Recorder Wilson in the same court on 5 July 2004. On the face of it the nature of the only substantive variation was relatively minor. Its effect was to reduce the number of nights to be spent by L with the father from just above 104 to just below 104 each year. I have calculated that under the previous order L was required to spend 105 nights with the father each year and that under the order under appeal she is required to spend 93 nights with him each year. Although there may be slight room for argument in relation to those numbers, the parents agree that the effect of the recorder's order was to reduce the father's contact from at least 104 nights each year to less than 104 nights each year and that this will have an effect upon the father's liability to pay child support to the mother for L under the Act of 1991.

3. In that the effective date of the maintenance assessment upon the father referable to L is prior to 3 March 2003, his liability falls even now to be assessed pursuant to the provisions of the Act of 1991 as they stood prior to the amendments made to it by the Child Support, Pensions and Social Security Act 2000: see Article 3 of the Child Support, Pensions and Social Security Act 2000 (Commencement No. 12) Order 2003 (S.I. 2003 No. 192). Indeed it is unclear whether, like other parents subject to assessments dated prior to 3 March 2003 and thus subject to the old statutory regime, the father will ever be migrated into the new regime then introduced.

4. At the date of the recorder's order the most recent assessment against the father was dated 2 August 2004. The sum payable thereunder was £53.85 a week but the figure carries no significance because since then the father has had an increase in his salary as a Post Office manager which, quite apart from the effect wrought by the recorder's order, would give rise to a higher assessment. What is important is that that figure was calculated upon the express basis that marginally more than two sevenths of his net income was exempt from the calculation in the light of his care of L for at least 104 nights each year: such is the combined effect of Regulation 1(2) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 (SI 1992 No. 1815), which defines "day to day care" as care of not less than 104 nights each year, and of Regulation 20, the effect of which is to treat as absent a parent with a lesser degree of day to day care than the other parent but to reduce the former's liability in accordance with a complex algebraic formula.

5. Following the making of the recorder's order the Child Support Agency has sought to reassess the father's liability. To date it has produced only an interim assessment because, as he concedes, the father's cohabitant has to date refused to allow details of her income to be divulged to the agency. On that interim basis, and in the light of the fact that under the recorder's order the nights to be spent by L with him are less than 104 each year and so insufficient to secure any discount for him under the old regime applicable to him, the agency has calculated that his liability is to pay £97.26 per week or £5,058 per annum. The parents agree that, had the effect of the recorder's order not been to reduce the number of nights to be spent by L with him to less than 104 each year, the father's liability, on that same interim basis, would have been £69.48 per week or £3,613 per annum. Thus, on this interim basis, the effect of the recorder's order is that, by reason of what on my calculation is a reduction of 12 in the number of nights to be spent by L with the father each year, his liability to pay child support has increased by £1,445 per annum.

6. Since 1998 there have been numerous, acrimonious hearings between the parents in relation to the level of the father's contact with L or, in that he has at times unsuccessfully sought a shared residence order, the optimum division of her time between the two homes if such an order were to be made; and although one must always guard against too ready an assumption that such a high degree of conflict is the responsibility of each parent in more or less equal shares, judges have made frequent and increasingly urgent exhortations to both parents to abate it in the interests of L's emotional health. Wherever responsibility for the conflict lies, the exhortations have proved unsuccessful; and I do not propose to lengthen this judgment by adding one of my own.

7. The order for contact dated 5 July 2004 provided, broadly, for L to have contact with the father as follows:

(a) each alternate weekend, both in term-time and during holidays, from 6:00pm on Friday until Monday morning;
(b) each Wednesday evening in term-time until 8:00pm;
(c) a fortnight plus one day during each summer holiday;
(d) at least two further nights during each summer holiday;
(e) a week, plus in alternate years one day, in each October half-term holiday;
(f) five nights during each Christmas holiday;
(g) two days in each February half-term holiday;
(h) a week during each Easter holiday and, in alternate years, one further day; and
(i) visiting contact on L's birthday and on Father's Day.

In calculating the number of nights to be spent by L with the father pursuant to that order, I have assumed that the alternate weekends do not quite amount to 26 each year because of the further provisions for contact in the summer, at Easter and in October, in which perhaps two or three of the alternate weekends each year might find themselves subsumed; but there could be argument about that.

8. Before the recorder were two applications. The first application, issued by the father in December 2004, was for the attachment of a penal notice against the mother to the order for contact dated 5 July 2004. At an early stage of the hearing the father abandoned that application. The second application, issued by the mother in May 2005, was for variation by way of reduction in the amount of contact for which provision had been made in the order dated 5 July 2004. This the father strenuously opposed. Indeed, notwithstanding that he issued no formal cross-application for variation, it is clear that before the recorder the father was contending, by contrast, that the provisions dated 5 July 2004 should be so varied as to increase the amount of his contact with L.

9. The focus of the mother's application was the provision in the order dated 5 July 2004 for contact on alternate weekends. Her case was that L had come to an age at which her wishes and feelings were assuming great significance and that L was increasingly opposed to being required to go to stay with the father throughout all alternate weekends. The focus of the father's contention, by contrast, was the provision that contact mid-week during term-time should only be visiting contact. Instead he argued that mid-week term-time contact should take place overnight each week, alternating between Mondays/Tuesdays and Thursdays/Fridays.

10. Directed to investigate, Mrs Jones, a CAFCASS officer, by report dated 7 December 2005, stated that L had made various complaints to her about the father, in particular about his allegedly demanding, inflexible attitude towards the contact arrangements, and about his cohabitant, in particular her alleged moodiness, the alleged level of her arguments with the father and her alleged unpleasantness towards L herself. In particular, so Mrs Jones reported, L stated that she objected to the contact at alternate weekends and instead wanted merely to visit the father on Sundays from about 9:00am until about 3:00pm. L also volunteered to Mrs Jones that, when in bed at the father's house, she from time to time had the same dream, namely that she sneaked out of his house, met the mother down the road and went with her to live far away. In conclusion Mrs Jones suggested that L's wish to reduce the contact was not only a reflection of her inevitable attunement with the wishes of the mother; that L was reacting against disharmony in the relationship between the father and his cohabitant; that she, Mrs Jones, had been astonished to hear the father suggest to her that L was telling her untruths; and that, although she declined to make a specific recommendation, she was "of the view that [L's] words should be heard".

11. Down the years it has been a frequent contention on the part of the father to the court that the motive of the mother, in arguing for lesser staying contact, was to achieve a situation in which L stayed with him for less than 104 nights each year so that the child support payable by him to her for L would be higher; and, by contrast, the mother has contended that the motive of the father, in arguing for greater staying contact, was to achieve a situation in which L stayed with him for at least 104 nights each year so that the child support payable by him to her for L would be lower.

12. It is indeed clear that, in opposing the mother's application for variation, the father specifically contended that her motive in making it was to secure an increase in child support. In his statement in answer dated 31 October 2005 he alleged that the application was "simply about money"; and he made reference to the threshold of 104 nights of contact each year which he needed to cross in order to secure a reduction of 28% (i.e. two sevenths) in the child support otherwise payable. The mother was not permitted, still less required, to file a statement in reply to the father's statement. But it is agreed that at the hearing before the recorder, which took place on 9 and 10 February 2006, reference was made to the father's contention that the mother's stance was born of her wish to secure an increase in child support; that she vehemently challenged the contention; and that the recorder extracted from the father the level of his current payments of child support and calculated two sevenths of it. The mother alleges to us that the recorder thereupon said words to the effect "I hardly think that the mother would go through all this in order to secure an increase only of that size". But the father denies that the recorder said anything of the sort; and there is no need for us to call for a transcript of the proceedings in order to resolve that issue. What is clear is that, in his final written submissions sent to the recorder at his invitation following the end of the hearing, the father asserted that the outcome for which he was contending "protects the necessary and morally and legally correct 2/7 shared care discount".

13. The order of the recorder was to make only one variation to the provisions in the order dated 5 July 2004, namely that only one half of the alternate weekends of contact should begin at 6:00pm on Friday and that the other half of them should begin at noon on Saturday. It is easy to see that the effect of that variation was to reduce the contact by 13 nights each year or, if two or three of the alternate weekends are subsumed in other contact provisions, say 12 nights each year. It is this loss of say 12 nights which has the significant effect upon the father's liability for child support. The judge declined to alter the provision for mid-week term-time contact.

14. In his reserved judgment the recorder explained the basis of his decision. It was that L had become resistant to the high level of contact provided by the order dated 5 July 2004; that part of her resistance was attributable to the father's jealous and possessive attitude towards what he regarded as his time for contact under its provisions; that the mother had had to encourage L to go to the father for contact and on occasions to require her to do so; that L had expressed a genuine and unsolicited wish to have less contact; and that, at her age, it was appropriate for the court to give – and to be seen by her to give – some effect to her wish, albeit not to the extent which she had requested.

15. From what I have set out at [12] above we can safely conclude that the recorder had well in mind the effect on the father's liability for child support of the slight reduction in staying contact which in the end he favoured. Yet in his judgment he made no reference to it at all. He appears not to have taken it into account in reaching his decision. Was he right not to have done so?

16. The father contends that the recorder was wrong not to have done so for four reasons. In setting them out as follows, I apply to them a degree of forensic polish in order to make them shine as brightly as possible.

(a) Quite apart from the point made at (b) below, the father would be required to pay less by way of child support if he were migrated into the new regime referred to in [3] above. The recorder should have had an eye to the injustice of the father's continued enclosure within the old regime and should have sought to mitigate it by preserving his discount referable to day to day care.

(b) Had the father been migrated into the new regime, the effect of the recorder's order in reducing the amount of staying contact would not have been entirely to eliminate the father's discount in respect of child support. In that under the order L is directed to spend with him a number of nights each year which falls between 52 and 103, he would, if subject to the new regime, have been liable to pay only six-sevenths of what he would otherwise have been liable to pay: see s.11(6) of, and para. 7(4) of Schedule 1 to, the Act of 1991 as amended. The recorder should have borne this paradox in mind and have relieved the father from unjust exposure to it by declining to favour any reduction in the number of nights to less than 104 each year.

(c) It is absurd to consider that the extra costs incurred by the mother referable to L in the event of her spending an extra 12 nights each year in the mother's home would amount to anything approaching £1,445 per annum. The recorder should have avoided making an order which would so manifestly over-compensate the mother for such extra costs as she would incur as a result of it.

(d) The reduction of £1,445 per annum or of any other substantial sum in the father's disposable income renders him unable to make direct payments for the benefit of L during periods of contact at the level at which he would otherwise have made them. Thus the order did not serve L's welfare although such should have been the recorder's paramount consideration under s. 1(1) of the Children Act 1989. Furthermore, in considering what order to make, the recorder was required by s. 1(3)(f) of the Act to have regard to the capacity of each parent to meet L's needs, including to their financial capacity to do so and thus to the effect of possible alternative orders upon such capacity.

17. I reject all four of the father's arguments.

18. The first three arguments are based upon anomalies in the current child support legislation which can properly be said to give rise to substantial injustice; but they are irrelevant to determination of the optimum level of a parent's contact with a child. The basis of the first argument is the government's refusal to date to provide for the migration into the new regime of absent parents who, by virtue only of the date of the assessment, currently remain enclosed within the old regime. The basis of the second is the fact that under the new but not the old regime liability is reduced even when the child spends less than 104 nights each year with the absent parent so long as they amount to at least 52 nights. The basis of the third is the fact that under both regimes there is, presumably in an attempt to avoid still greater complexity, an arbitrariness in the number of nights set as the thresholds to discounts and therefore the likelihood of disproportionate financial repercussions in cases which fall just above or just below the thresholds. In Phillips v. Peace [1996] 2 FLR 230 Johnson J. held at 231E, 234E and 235B that, even though the nil assessment upon the father to pay support for his daughter under the Act of 1991 was "startling to the point of absurdity", it would be wrong for the court to exercise its jurisdiction under Schedule 1 to the Act of 1989 to order payment of a lump sum to or for her benefit in order to provide for her regular maintenance; for such would be a device to outflank Parliament's intention in devising the rules for assessment in and under the Act of 1991. How much more inappropriate it would be to exercise the jurisdiction to make an order for contact with a view to reversing or mitigating the consequences of the statutory provisions. Indeed it would be positively unlawful to do so because it would be to introduce a consideration unrelated to the child's welfare.

19. The fourth argument may have more superficial attraction because at least it is clothed in a reference to the child's welfare and to one of the factors in the check-list set by s. 1(3) of the Act of 1989. In my view, however, it would be impracticable for a court which hears an issue as to contact or shared residence to discern the beneficial or detrimental effect upon the child of the consequences under the Act of 1991 of alternative possible orders; and it would also be wrong in principle for the court to attempt to do so. It would be impracticable because it would demand a vastly complex enquiry first into the likely differences under one or other of the regimes in the sums payable by way of child support attendant upon the differences between possible orders and thereupon also into the effect of the differences in those sums upon the two households, and specifically upon the child when within each of the two households, whence and whither they would be payable. It would be wrong in principle because it would put the cart before the horse. First breed your horse, namely the optimum arrangements for the child in terms of contact or shared residence, devised without reference to child support. Then, at the rear of the horse, let Parliament fit the appropriate cart, namely the amount of the liability for child support.

20. So the answer to the question raised by this appeal, as set out at [1] above, is no.

21. I would dismiss the appeal.

Lord Justice Mummery:

22. I agree