Day-to-day care - a new legal test.
It has now been three years since the 2012 Regulation on day-to-day care was enacted for all CMS cases. Parliament, in its wisdom, decided not to give a precise definition of day-to-day care. However, three years later, following a recent Upper Tribunal, we may be getting closer to a working definition. Although the Tribunal adopted the same position as Parliament and refused to give a working definition, what it did imply was that a number of circumstances would help Tribunals decide when, and if, Regulation 50 should apply. For instance, it was decided that day-to-day care and shared care are two very separate issues and it would be possible to satisfy Regulation 50 without the need to have 50:50 shared care. In fact, it implied that if circumstances were right, there could be equal day-to-day care but only one night shared care. It was also mooted that day-to-day care can be by proxy and, in theory, that it could still be taking place even when it is not your "turn" to have the children i.e you may be responsible for the aftercare of a visit e.g. washing and ironing all clothes or being the parent who deals with a routine medical matter such as setting appointments.
A further issue which appears to have been established by the Tribunal is that if Regulation 50 is satisfied, it simply means the parents are no longer under the jurisdiction of the statutory body for child maintenance and they should, therefore, try to reach a family-based agreement or, failing that, consider an application to the Family Court under the Children's Act 1989 in the same way parents could before 1993 citing lack of jurisdiction as the reason for the application.
Because of this new approach, all cases decided since 2014 could, in fact, be wrong and parents are urged to contact our specialist day-to-day care team to have their current circumstances assessed. For the avoidance of doubt, this includes receiving parents who have been told they're not entitled to anything and paying parents who believe having the children 50:50 shared care means you don't have to pay anything.
There are many reasons why you should get legal advice before you embark on trying to arrange a Child Maintenance Service (CMS) shared care or 50/50 day to day care assessment. Below are the main reasons why parents instructed Durham Legal Services (DLS) to deal with their child maintenance 50/50 care case.
1. Mike Smith, our Senior Partner, was the lead lawyer in the Upper Tribunal case which gave us the case precedent that defined the definition of Person With Care. His expertise in this area is very well respected throughout the Child Maintenance Community and gives parents a realistic chance of winning their case.
2. We understand the need to demonstrate any arrangement is not only backward looking but also forward looking.
3. Parents who try on their own initiative to get 50/50 care in place soon come up against the “Assumption Rule” care arrangements in a written form going forward. We can help you with this when no agreement exists.
4. Where no Court Order is in place and parents are reluctant to go to court, using our Footprint System we work towards putting the right agreement in place in order to satisfy the needs of the child.
5. We recognise that even with 50/50 care, there are instances when both parents need to pool income e.g. school dinners/ uniform etc.
The introduction of the new CMS legislation means that when equal shared care is truly in place, neither parent is required to make child maintenance payments to the other. However, like all new legislation, the rules around shared care are being tested at all levels of the appeals system. This is one of the many reasons why parents should get legal representation if they are challenging a shared care decision. Again we strongly recommend individuals affected by this legislation seek our legal advice urgently.
Day to Day Care / Shared Care Overview.
Under the current Child Maintenance scheme, neither parent having greater day to day care than the other should result in a £nil payment. However, day to day care is not the same as shared care. Many people believe by just having 50/50 shared care they will have a £nil liability but this is not the case; it must be day to day care to qualify. There is no fixed rule and each case will be assessed on its own merit. This means the correct procedure needs to be put in place before any appeal is made and we can help you with that as part of the appeal representation.
Until very recently, even if a Court Order was in place, the CSA would base their decision on what the PWC said or what was happening in reality. If there was a dispute about the level of shared care, the Agency would normally make a decision based on diary evidence. Several months ago, CSA Policy Unit stated that if a Court Order or some other formal agreement e.g. a signed agreement drawn up by legal representatives on either side exists, then that will be the shared care which will be allowed in the assessment. If either party claims that does not reflect the reality of the situation, then they would have to get their agreement or Order properly varied and then the CSA will change the assessment to reflect the updated Order. However, it is unclear if this policy is being adopted by the decision makers and there are further pitfalls because of Upper Tribunal decisions which affect the 1993 and 2003 schemes and which have carried forward into the 2012 scheme.
Simply writing to the CMS and claiming to have 50/50 shared care will not be sufficient. The Child Maintenance Service itself is often unclear about the difference and existing CSA caseworkers who have transferred to CMS often still revert to the old “shared care” rules when there is a dispute.
Establishing care patterns needs a careful analysis of the individual circumstances and, if the matter goes to appeal, it needs to be argued properly and reasonably. Tribunal Judges dislike shared-care cases and being asked to rule over a few days care over the course of a year and they are generally unsympathetic to both parties if they think the children’s access is being manipulated for money. It is undoubtedly one of the areas where they prefer to have parents professionally represented. We areable to help you with this. Call us now on 01207 693966
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