Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 430 (AAC)

Fecha: 18-Dic-2024

The Appeal

16.

The appellant appeals with the permission of the FtT on three grounds:

Ground One, that applying a “nights spent” test to the question of whether a special case is made out under regulation 50 is the wrong approach

Ground Two, that the decision is in error or internally inconsistent in treating arrangements set out in the order of 22 December 2021 as having different consequences for CSM calculations to the order applicable at the time of the decision under appeal, because the parts of both orders dealing with where the children would live/spend time were the same, and

Ground Three, that the FtT applied regulations 46 and 47 to the case contrary to the case of JS v SSWP and another (CSM) [2017] UKUT 296 AAC)

17.

The first respondent invites the Upper Tribunal to allow the appeal. As to grounds one and three she says

“the FTT accepted that both the PWC and NRP ‘have equal contact with the children’s school and are both responsible and involved in the children’s educational needs. [YRC] and [MJ] both contact the children’s dentist and doctor. The parents are both responsible and involved in the children’s health needs’. Therefore, the only difference in the level of care by both parents is the number of nights that the children spend at their home….
It was held in JS v SSWP (CSM)[2017] UKUT 296 (AAC) that 'In the context of reg 50, overnight care is therefore not a trump card', however the FtT in this case appear to have treated it as such. It is worth noting that regulations 46 and 47 should only arise if one of the parents is found to be the NRP under regulation 50 (JS v SSWP (CSM)[2017] UKUT 296 (AAC) (at para 26)). It is at this point where a reduction is being considered that the number of nights a child is spending with the NRP. From the SOR it appears that the FtT have applied regulations 46 & 47 as justification for the appellant to be the NRP under regulation 50. “

18.

As to ground two she says:

the family court order of 22/12/2021 was issued after the decision by CMS. The Court Order was that there should be a shared care agreement in place. The only court order under effect at the date of decision was 17/02/2021, the FtT must stand in the shoes of the decision maker on the day that they made the decision. Any evidence this point would not be in the jurisdiction of the FtT under this appeal. If this document notified a change of circumstances, this would need to be reported to CMS separately. I submit that the FtT have not erred in law on this ground.

19.

The second respondent opposes the appeal. he points ton the family Court order of 17 February 2021 as saying the children live with him and spend time with the appellant. He says he was meeting the children’s needs to a greater extent. The care provided by each parent was not equal at all. The order of 22 December 2021 is irrelevant.