R(CS) 11/02

Mr. E. Jacobs	CCS/1911/2001
8.4.02
Maintenance assessment – child sometimes in care of relatives – whether absent parent providing “day to day care” 
The absent parent shared the care of his child with the parent with care, and sought an allowance for shared care. At issue was whether he had care of the child for not less than 104 nights in the year commencing 1st December 1998, and therefore had ‘day to day care’ pursuant to regulation 1(1) of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992.
The absent parent argued that he had had care of his child on 105 nights in the year, 93 of which had been spent with him and the remainder with the child’s grandparents or aunt. The Secretary of State decided that the absent parent did not have ‘day to day’ care. A tribunal rejected his appeal because they did not accept his evidence. The absent parent appealed to the Commissioner.
Held, allowing the appeal, that:
1.	the tribunal went wrong in law by not accepting the evidence of the absent parent, which the Commissioner accepted on making his own findings of fact (paragraphs 6-10);
2.	there are different aspects to caring for a child and whether the absent parent had ‘day to day care’ of his child depended on the meaning given to ‘care’ in regulation 1(1) (paragraphs 11-18);
3.	‘day to day care’ includes care overnight;
4.	 in regulation 1(1) ‘care’ is concerned with the exercise of immediate, short-term and mundane aspects of care (paragraph 19);
5.	 separation is not necessarily incompatible with such care, but that will depend on factors such as length, duration and the continuing exercise of control (paragraph 20);
6.	 applying this analysis to the facts of this case, the absent parent did not have care of his child when she stayed overnight with her grandparents or aunt (paragraphs 21-23).

The Commissioner substituted his own decision that the absent parent did not have ‘day to day care’ of the child, and was not entitled to an allowance for shared care.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	My decision is as follows. It is given under section 24(2) and (3)(a) of the Child Support Act 1991.
1.1.	The decision of the Cardiff appeal tribunal, held on 8 November 2000, is wrong in law.
1.2.	I set it aside, make findings of fact and give the decision appropriate in the light of them.
1.3.	I accept the absent parent’s evidence of the nights when S (the child) stayed with him, his parents or his sister.
1.4.	My decision is the same as the tribunal’s.
The appeal to the Commissioner
2.	This case concerns the child support maintenance payable with respect to S. In the terminology of the child support legislation, the appellant is her absent parent, and the second respondent is her parent with care. I shall refer to them in those terms.
3.	Specifically, the issue is whether the absent parent has shared care of S for the equivalent of 104 nights a year from and including 1 December 1998. The Secretary of State and the tribunal decided that the absent parent was not entitled to an allowance for shared care of S. 
4.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of Mr Commissioner Bano. The Secretary of State’s written observations supported the appeal. The parent with care’s observations on the appeal consisted of a letter from S setting out weekends when she had not seen her father. The absent parent’s observations on the appeal asked for an oral hearing. They contained detailed arguments. The absent parent also questioned the accuracy of S’s recollections.
5.	An oral hearing was directed by Mr Commissioner Bano. It was held before me in Cardiff on 3 April 2002. The absent parent attended, but was not represented. The parent with care did not attend and was not represented. The Secretary of State was represented by Mr. H James. 
The evidence
6.	The absent parent produced a list of dates when S had stayed with him, his parents or his sister. The list covered the year from December 1998. The list was not compiled contemporaneously, but it was based on documents like diaries and bank statements that were contemporaneous with the dates in question. The documents from which the list was compiled were not before the tribunal or before me. The list covers 105 nights, only 93 of which were spent with the absent parent. He accepted before me that he was not entitled to an allowance for shared care of S if (a) his list was inaccurate by only 2 nights or (b) if the nights S spent with her grandparents and aunt were disregarded. 
7.	Against the absent parent’s list of dates there was a general statement from the parent with care. She did not refer to any documents in her possession. She merely stated from memory that S had not stayed with the absent parent as often as he claimed and referred to a number of unspecified weekends in particular months. Except for the month of August 1999, there was nothing necessarily inconsistent between the absent parent’s list and the parent with care’s statement, as the number of weekends in particular months corresponded with the number of weekends in those months that were not on the absent parent’s list.
8.	The parent with care’s observations on the appeal to the Commissioner consisted of a letter from S listing some weekends when she was unable to stay with the absent parent. As with her mother’s statement, there is nothing necessarily inconsistent between her letter and the absent parent’s list.
9.	Although the original documents were not before the tribunal, the preponderance of the weight of evidence supported the accuracy of the absent parent’s list. Although the chairman did not have the chance to question the absent parent, he was not entitled to reject the absent parent’s list for the reasons he gave. On the evidence available, the only decision open to the tribunal was to accept that list. It did not and thereby went wrong in law. 
10.	However, the tribunal nonetheless came to the correct conclusion that the absent parent was not entitled to an allowance for shared care of S. The reason is that the nights S spent with his parents and sister were not nights for which the absent parent had care of her. 
Day to day care
11.	‘Day to day care’ is defined by regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992, but the definition does not make clear what does and does not amount to care for this purpose. 
12.	There are a number of aspects to caring for a child. There is the carer’s mental attitude towards the child, being concerned about the child’s health and welfare. Then, there is decision-making about the child. This covers everything from the immediate and mundane (like what time the child should go to bed) to the long-term and important (like education and religion). There is also the provision of the necessities of life, like food, clothing and shelter. Finally, there is responsibility for the child’s control and protection. 
13.	Aspects of care may be divided between different people: for example, the child may be at school, on a school trip, with a babysitter or staying on a sleepover at a friend’s home. In each of these cases, some aspects of care will pass to the teacher, the baby sitter or the friend’s parents. The nature and extent of the care provided will vary according to the circumstances. But in all these examples the care involved will be immediate or, in the case of a school trip, short-term. 
14.	Aspects of care may be shared by different people. The most obvious example is when the child’s parents live together and with the child. In that case, potentially all aspects of care may have to be discussed. In other cases, only the longer-term aspects of care require agreement: for example, if the child’s parents are separated but share parental responsibility. 
15.	The child may be allowed some freedom of choice in care. The extent to which that is allowed will depend on the child’s age and maturity as well as on the attitude of those with control and parental responsibility. But to the extent that the child has freedom of choice, that is always because it has been allowed by someone with that authority.
16.	The physical presence of the child is not necessary for the all aspects of care. That is obviously the case as far as the long-term decision making is concerned. It may also be the case for the immediate and mundane aspects of care. For example, a parent may allow a child to go on a sleepover, but stipulate the child’s diet. Or the parent may tell a baby sitter what time the child has to be in bed or the television programmes that the child may watch. 
17.	So there are different aspects to care, which may be divided between or shared by different persons, including the child, and those persons need not in all circumstances be in the child’s presence. 
18.	The issue for me is: what aspects of care are covered by ‘day to day care’ in the child support scheme?
19.	Day to day obviously covers overnight. This is put beyond doubt by the details of the definition in regulation 1(2), which refers to numbers of nights. Inherent in the language and the emphasis on nights is a concentration on the immediate, short-term and mundane aspects of care. That means deciding on the child’s activities, diet and bedtime. It also means exercising control over the child’s behaviour, protecting the child from harm and providing care in case of illness. 
20.	This does not mean that the child must be in the parent’s presence at all times. Separation is not necessarily incompatible with a parent having day to day care of a child. The significance of the separation depends on its duration and purpose, and on the degree to which the parent continues to exercise control over the child and to be responsible for the child’s behaviour and protection. Some separation is almost inevitable during a stay, for example when the parent or child goes to the toilet. The duration and purpose of that separation is always compatible with day to day care. Other separation is not inevitable, but its purpose and its duration in comparison to the length of the stay are compatible with day to day care. For example, a child may go to spend an evening with a friend while staying with an absent parent. The same is the case if the child is left in someone else’s charge while the parent is absent, for example to go shopping. 
21.	How does this apply to the nights when S was staying with her father’s parents or sister?
22.	When S was staying with his parents or his sister, the absent parent (a) agreed that she could stay with them rather than with him, (b) accepted financial responsibility for her, (c) was always geographically close by and (d) was the person who would have been called upon if she had been taken ill or had any significant difficulties. The significance of those facts has to be assessed in the context of the law’s concern with overnight and immediate care and control. In that context, they are not sufficient to give him her day to day care for those nights.
23.	The absent parent’s agreement to S staying elsewhere was an aspect of his care of her at the time. It was a decision about what she could do and where she could go for a night or two. She was never far away and he could be called quickly and easily if he was needed. However, for practical purposes during the night it was S’s grandparents or aunt who exercised immediate control over her and who had responsibility for immediate control and safety. The nature of the care they exercised, its duration and its purpose were all incompatible with the absent parent having S’s day to day care while she stayed elsewhere. The reality was not that S was in his care. It was that she was spending time that she could have spent in his care in the care of other relatives instead. 
24.	I have not overlooked the fact that day to day care is not exclusively concerned with absent parents. The definition of ‘person with care’ requires that the person must usually provide day to day care for the child. See section 3(3)(b) of the Child Support Act 1991. Nothing in my reasoning is incompatible with that other context. Child support law is concerned with maintenance and the costs of bringing up a child are more related to the aspects of day to day care as I have analysed it than to the longer-term decisions about upbringing. 
25.	This is not to say that day to day is solely concerned with cost. It is undoubtedly correct that the assumption of financial responsibility that usually accompanies day to day care is the rationale behind the allowance for shared care in the child support maintenance formula. However, financial responsibility and care, though they may be connected, are not the same thing. Indeed, short-term overnight care may involve only minimal cost, or even no cost at all. So, the fact that the absent parent may have retained financial responsibility for S while she was staying elsewhere was not of itself sufficient for him to have her day to day care for that time. 
Summary
26.	I allow the appeal, because the tribunal weighed the evidence irrationally. However, the outcome decision given by the tribunal was correct, despite its mistake. As the relevant facts are clear on my analysis of the evidence, I can confirm the decision given by the tribunal. I have done this in paragraph 1.4.

8 April 2002	(signed) Mr. E. Jacobs
Commissioner