[2025] UKUT 027 (AAC)

In the nine paragraphs of the tribunal’s Detailed Reasons that follow the heading “Findings of Fact” the Tribunal first refers to the Child Arrangements Order to which the Mother and Father consented, and then identifies the question it must answer to decide the appeal against the 2020 CMS Decision: “which parent provides more day to day care?”

The Tribunal explains that it won’t cover every aspect of care each parent gives to the children, but will instead provide examples which show their respective day to day care, and who provides the more significant share and why. That is a permissible approach to explaining the tribunal’s reasons.

Paragraphs [13] to [19] relate to the evidence given about what the respective parents do in terms of day to day care. Many of the sentences open with phrases like “[the Father] explained that...” of “he described…” “he stated that…”, “[the Mother] gave examples of…”, “she emphasised that…”, “she explained how…”, “she stated that…” As such, they are recitations, or perhaps summaries, of the evidence given by the Father (paragraphs [13]-[14]) and the Mother (paragraphs [15]-[19]). None of those sentences includes a clear statement of what the Tribunal made of the evidence recounted. As such the reader can’t be at all sure that they are findings of fact at all.

Other sentences in this section of the written reasons contain no such introductory words. These sentences could be findings of fact, but sandwiched as they are between recitations of evidence, it is not entirely clear whether they are a continuation of the evidence in the previous sentence (and so attributable to the witness referred to in the preceding sentence), or whether they reflect the judge’s own findings based on her assessment of the witness’s evidence.

Even if one infers from its location under the heading “Findings of Fact” that everything in paragraphs [10]-[19] amounts to a finding of fact by the Tribunal, it is not clear how the Tribunal resolved the conflicts between the accounts given by the parents: the Father said that he pays for his daughter’s gymnastics (see paragraph [14]), while the Mother says that she does (see paragraph [15]). There is no indication of whether, and if so how, the judge resolved this conflict which might well have been important. Neither is there any mention of the voluminous documentary evidence in the appeal bundle, which included evidence of payments made.

Even putting all of this to one side, when one looks at the day to day care described in paragraphs [13]-[19], what is being attributed to the Father and Mother (whether by themselves or as found by the Tribunal) is remarkably similar. It is instructive to look at it in tabular form:

The table above suggests that the parents each provide broadly equivalent day to day care when they have the children. So, what separates the parents in terms of day to day care?

Taking their evidence at face value, the Father takes responsibility for medical and dental appointments, while the Mother takes the lead on personal grooming. The father eats with the children and does homework with the daughter, while the mother buys the children’s stationery, fetches and carries for them when they are at their Father’s and forget things, and does craft activities with the daughter. Although in some domains the parents take responsibility for different aspects of day to day care, there is broad equivalence and it might be thought that, looking at the situation holistically and seeking to identify the overall pattern, neither parent provides more day to day care than the other.

The main differentiating factor appears to be on the issue of payment for school meals, and the arrears that built up when the Father refused to pay. Payment for school lunches is, of course, an element of day to day care, and so it is relevant to the assessment of whether the Father is to be treated as the “non-resident parent” for the purposes of the child maintenance legislation, with less day to day care than the Mother. However, there is a problem here too because, as the judge herself pointed out in paragraph [14] of the Detailed Reasons, the arrears in school meal payments arose in the period “when the case was closed”. In other words, after the 2020 CMS Decision. The judge doesn’t appear to have made any findings about the situation in the period up to the 2020 CMS Decision, which was the relevant period for the purposes of the appeal against the 2020 CMS Decision.

To the extent that the matters set out in the Detailed Reasons for the FtT Decision amount to findings of fact at all, they are not clearly anchored in time. It is therefore unclear whether the findings relate to the date of the 2020 CMS Decision, the date of the 2022 CMS Decision, the date of the hearing before the First-tier Tribunal, some other date, or to a period spanning several of these dates.

Most of what is said under the heading “Findings of Fact” is written in the present tense, which suggests that the evidence given by the Mother and Father was about how day to day care was being managed around the date of the hearing before the First-tier Tribunal, and on an ongoing basis. Therefore, to the extent that the Tribunal was making findings, those findings might have been made based on evidence that related to a time more than three and a half years before the relevant date (i.e. when the 2020 CMS Decision was made). Given the way that children’s needs change over time it is highly unlikely that the day to day care that the children required in January 2020 was the same as that which they required in October 2023, and so it is similarly unlikely that what was provided to them by their parents in January 2020 was the same as what was provided in October 2023. The absence of any facts found in relation to payment for school meals during the relevant period creates a large hole in the Tribunal’s decision.