[2024] UKUT 430 (AAC)

Regulation 50 provides as relevant;

I allow the appeal on Grounds One and Three. Regulation 50 must be applied on its own terms, and without importing considerations that arise under regulations 46 and 47. ( JS v SSWP (CSM)[2017] UKUT 296 (AAC) paragraph 21). The question whether a non resident parent “also provides a home” or one “person provides day to day care to a lesser extent” than another must be answered in light of all of the relevant evidence. As the Upper Tribunal said in JS:

In this case it does appear that the FtT looked exclusively at the number of nights spend in each household. At any rate if they did not there is no explanation of what other factors they took into account, which would itself be an error of law Flannery v Halifax Estate Agencies [2000] 1 WLR 377. Further the reference to the children not spending at least 175 nights in the care of the appellant is a reference to a concept arising under regulations 46 and 47, leading me to conclude that those two regulations have been elided with or allowed to inform the consideration of regulation 50, contrary to JS.

It may be that on reconsideration of regulation 50 in light of all of the evidence on day to day care before the FtT it will again reach the conclusion argued for by the second respondent. But it is possible that they will not, and that being so the appeal must be allowed on these grounds and the case remitted.

I also allow the appeal under ground two, although not for the exact reasons advanced by the appellant. The principal point is that the family court order of 22 December 2021 post dated the decision under appeal. It should not have been taken into account at all.

Furthermore, the relevance of any change in language between the orders noted by the FtT had to be established. The question for the FtT under Regulation 50, which it has to answer itself, is whether one parent provides day to day care to a lesser extent than the other. That is the statutory test, to which I apply no gloss. The operative provisions of a Child Arrangements Order will often be relevant to that enquiry (at least, if the actual arrangements in place for the children concerned are the same as set out in the CAO). It is much less obvious that whether CAO describes itself as a shared lives with order or a lives with/spends time with order is relevant. That terminology does not go to the day to day care actually received by the children. There are cases, and this was one of them, where exactly the same arrangements can be described as lives with/spends time with or “in effect a shared care arrangement”. The FtT must be careful to consider the substance of the children’s day to day care and should be wary of placing significant weight on the label put upon it.

I also sound a note of caution concerning recitals of the form seen in the order of 22 December 2021, which was to the effect that both parents should have an equal say over and are equally responsible for the care and maintenance of the children and all significant matters relating to their education, health, religion and upbringing. The FtT took account of this recital but a recital to very similar effect is included in the current standard template wording for a CAO approved by the President of the Family Division. It is likely to be commonly seen. The question for an FtT under regulation 50 is what are the actual arrangements for day to day care. A recital might record that a parent has certain rights and duties, but it cannot tell an FtT if they are in fact exercised. If the FtT is to consider such a recital at all, it should be alive to the need to ask what evidence the recital actually is as to the day to day care of the children concerned.

I therefore conclude that the decision of the FtT involved an error of law. I allow the appeal and set aside the decision of the FtT. The case must be remitted for a re-hearing by a new FtT, in accordance with my direction above.