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Neutral Citation Number:
Reported Number:	R(CS)1/09
File Number:	CCS 1980 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	27/06/2008
Date Added:	10/07/2008
Main Category:	Child support
Main Subcategory:	applications
Secondary Category:	Human rights law
Secondary Subcategory:	article 13 (redress)
Notes:	Maintenance assessment – shared care – parent not in receipt of child benefit treated as non-resident parent – vires of regulation 8(2)(b)(i) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 Human rights – whether treatment of parent not in receipt of child benefit as non-resident parent in breach of Article 14 of the Convention The parents shared the care of their two children equally. The mother applied for child support and on the basis of the shared care arrangements the Secretary of State decided that the mother was the parent with care and that the father was liable to pay child support. The father appealed and the tribunal confirmed the decision of the Secretary of State, observing that it attached no significance to the fact that the child benefit was paid to the mother and that either parent could have been treated as the parent with care. The father appealed to the Commissioner, contending that, in treating him as the non-resident parent and the mother as the person with care, the regulations operated in an unfair and discriminatory way and that there must be some room for discretion. Held, allowing the appeal but substituting his own decision to the same effect, that: 1. the tribunal had erred in not applying regulation 8(2)(b)(i) of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 which states that, where both parents provide care to the same extent, the parent who is not in receipt of child benefit is to be treated as the non-resident parent (paragraph 15); 2. the rule in that regulation was not irrational or ultra vires (R(CS) 14/98 followed) and there was no basis for suggesting that it breached any provision of European Union Law: neither the child support scheme nor the child benefit scheme was within the scope of council Directive 79/7/EEC (paragraph 16 to 19); 3. even if the rights of parents in connection with the child support scheme came within Article 8, there was no breach of Article 14 in the present case since the child benefit arrangements between the parents were voluntary and therefore any theoretical possibility of gender-based discrimination within the child benefit scheme did not apply to them (paragraphs 24 to 28).
Decision(s) to Download:	R(CS) 1_09 bv.doc