[2025] UKUT 027 (AAC)

To decide whether a parent named as the “non-resident parent” in an application for child maintenance under section 4 of the 1991 Act is to be treated as the non-resident parent, the Tribunal must first decide whether that parent has day to day care of qualifying children to a lesser extent than the parent with care. That is a question of fact to be determined based on the evidence.

There is no definition in the 1991 Act, or elsewhere in the statutory framework for the child maintenance scheme, of what “day to day care” means.

The meaning of the phrase “day to day care” and the proper approach to assessing it was discussed by Judge Wikeley in CCS/1875/10 at [48]:

“… rather than considering who had (in legal terms) parental responsibility for S, and effectively using that as a proxy for being the person with care, the tribunal should have focussed on who was providing the hands-on care or the “immediate, short-term and mundane aspects of care” (R(CS) 11/02, at [19]), bearing in mind that “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” (R(CS) 11/02 at [24]). As I postulated at the oral hearing, it is about who puts food on the table, washes the child’s clothes, deals with the letters from school and reads a bedtime story.”

Another helpful statement of how to approach the assessment of whether the named parent is to be treated as the “non-resident parent” was made by Judge Jacobs in MR v SSWP and LM [2018] UKUT 340 (AAC):

“19.

Details can be significant, but it is important not to lose sight of the pattern, which is what the tribunal has to find. Fluctuations may cancel themselves out: here the father accepted that the week-long holidays with each parent “would largely balance themselves out”. And a child’s specific needs may vary from time to time: it may be pure chance whether a child is with their father or mother when they fall and need to go to the hospital.

20.

The tribunal had to look for a pattern or distribution of care by taking account of the evidence as a whole, including all the details that the parents provided. These are easy words for the Upper Tribunal to write, but they are not so straightforward for the First-tier Tribunal to apply and explain. There is no formula that a tribunal can apply to take account of all the different aspects of care. Suppose the father pays for his children to attend an after school club, their mother picks them up, unless she is working, when her parents stand in for her. How is the care involved to be allocated? And how does any of that compare with making sure that the children go to bed at a sensible time and don’t eat too much junk food? Unless the facts make the decision clear cut, it must involve a broad and impressionistic evaluation.”

I echo what Judge Jacobs says about the difficulty of the First-tier Tribunal’s task, and I acknowledge that the First-tier Tribunal’s task is not a simple matter of totting up the hours spent with the children, but rather a more “impressionistic evaluation”.

However, as I said in the first appeal in these proceedings (see DB v (1) SSWP and (2) SB (CSM) [2023] UKUT 70 (AAC)), the assessment must be made based on findings of fact rooted in evidence, and not on value judgments. I decided that the First-tier Tribunal in that case had not taken that approach:

“Instead, the First-tier Tribunal based its decision that the mother provided a greater proportion of the children’s day to day care on a value judgment on the relative merits of the parents’ respective values, philosophies and motivations. The only differentiating finding of fact was about the cutting of the nails, and the judge expressly stated that this finding was “not a clinching factor”. Rather the First-tier Tribunal appears to have been persuaded by its impression that the mother was motivated by what was best for the children, while the father was focussed on the money spent on them.”

Turning to the appeals before me now, the Tribunal decided that the Mother provided a greater proportion of the children’s day to day care in terms of both their practical and emotional needs (see paragraph [12] of the detailed written reasons).

There is nothing in the Detailed Reasons or in the decision notice relating to the FtT Decision to indicate that the judge was not aware of the proper legal test for establishing whether one parent had a greater share of day to day care than another, and given that the legislation and case law cited by the judge were pertinent, I am not persuaded that the judge was unaware of the proper test.

I shall now consider whether the FtT Decision’s foundations in terms of the findings of fact on which it stood, were inadequate.