R(CS) 7/02

Mr. C. Turnbull	CCS/7334/1999
8.6.01
Maintenance assessment – special case of child in care of local authority being allowed to live with parent – whether other parent can be a “person with care”
A child in the care of the local authority was required by a High Court Order to live with the mother. The child left the mother’s home to live with the father. The father applied for child support maintenance and an assessment was made requiring the mother to pay maintenance to the father. On appeal to a tribunal, the mother contended that the child had not been lawfully placed with the father by the local authority, and that therefore he was not a person with care, and the mother was not an absent parent. The tribunal dismissed the appeal. The mother appealed to the Commissioner.
Held, that the tribunal had been right to dismiss the appeal because:
1.	but for regulation 27A of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992, the father satisfied the conditions of section 3(3) of the Child Support Act and was a person with care;
2.	regulation 27A did not have the effect that section 3(3)(b) of the 1991 Act was not satisfied, because regulation 27A is inclusionary rather than exclusionary, i.e. it only effects a modification of section 3(3)(b) in relation to a child who is in fact living with the parent with whom he has been placed by the local authority, and not in relation to a child who is in fact living with some other person.

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	This is an appeal by a mother (“Mrs. P”) against a decision of the Bristol Child Support Appeal Tribunal made on 27 August 1999. My decision is set out in paragraph 19 below. In substance the appeal fails.

2.	The facts, so far as it is necessary to relate them for the purposes of this decision, were as follows:

(1)	Mrs. P and her then husband (“Mr. B”) had a child (“L”), who was born on 24 February 1980.

(2)	In 1991, Mr. B and Mrs. P having by then presumably separated, L was placed in the care of the local authority by Order of the High Court. The Order gave the local authority leave to place L with Mrs. P at her home in Bath.

(3)	L lived with Mrs. P until 1994, when she absconded and went to live with Mr. B in Weston-super-Mare. However, in July 1994 a further High Court Order was made requiring L to be returned to Mrs. P forthwith. 

(4)	In June 1996 (by which time L had attained the age of 16) L again left Mrs. P’s home and went to live with Mr. B, where she thereafter remained, with the knowledge and at any rate some degree of approval of the local authority.

(5)	On 2 October 1996 Mr. B applied for a maintenance assessment to be made in respect of L. On 28 May 1997 a maintenance assessment was made requiring Mrs. P to pay to Mr. B in respect of L the sum of £59.16 per week from 14 November 1996.

(6)	Mrs. P applied for a review of that decision, but on 21 July 1997 a second child support officer refused to review it. 

(7)	 On 27 August 1999 the Tribunal dismissed Mrs. P’s appeal against that refusal.

3.	In order to indicate the parameters of the dispute, I should at this stage summarise very broadly Mrs. P’s primary contentions before the Tribunal:

(a)	that the local authority’s placement of L with her had never been lawfully terminated, and that there had been no lawful placement of L with Mr. B.

(b)	that Mr. B was therefore not a “person with care”, and that either she (Mrs. P) was the person with care, or there was no person with care. 

(c)	that in neither of the possibilities in (b) was she an absent parent;

(d)	that Mr. B therefore had no locus standi to apply for a maintenance assessment, and that in any event that no such assessment could be made requiring her to make payments to Mr. B.

4.	Contention (a) above gave rise to issues of fact and law before the Tribunal. However, on the view which I have reached as to the construction of the relevant legislation it was not necessary for the Tribunal to investigate them. 

5.	The statutory provisions primarily in point are the following.

The Child Support Act 1991 (“the 1991 Act”)

“3.  (1)  A child is a “qualifying child” if –– 

(a)	one of his parents is, in relation to him, an absent parent; or

(b)	both of his parents are, in relation to him, absent parents.

(2)	The parent of any child is an “absent parent”, in relation to him, if –– 

(a)	that parent is not living in the same household with the child; and 

(b)	the child has his home with a person who is, in relation to him, a person with care.

(3)	A person is a “person with care”, in relation to any child, if he is a person –– 
(a)	with whom the child has his home

(b)	who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and 

(c)	who does not fall within a prescribed category of person.” 

(4)	The Secretary of State shall not, under subsection (3)(c), prescribe as a category –– 

(a)	parents; 

….”

The Child Support (Maintenance Assessment Procedure) Regulations 1992 (“the MAP Regulations”)

“51.  (1) For the purposes of the Act the following categories of person shall not be persons with care –– 

(a)	a local authority;

(b)	a person with whom a child who is looked after by a local authority is placed by that authority under the provisions of the Children Act 1989, except where that person is a parent of such a child and the local authority allow the child to live with that parent under section 23(5) of that Act;

….

(2)	In paragraph (1) above –– 

“a child who is looked after by a local authority” has the same meaning as in section 22 of the Children Act 1989.”

The Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (“the MASC Regulations”)

“27A.	(1) Where the circumstances of a case are that a qualifying child who is in the care of a local authority in England and Wales is allowed by the authority to live with a parent of his under section 23(5) of the Children Act 1989, that case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this case, section 3(3)(b) of the Act shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the parent of a child whom the local authority allow the child to live with under section 23(5) of the Children Act 1989.”

The Children Act 1989 (“the 1989 Act”)

“22(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is –– 

(a)	in their care; or 

.…

23(1) It shall be the duty of any local authority looking after a child –– 

(a)	when he is in their care, to provide accommodation for him; and 

(b)	to maintain him in other respects apart from providing accommodation for him.

(2)	A local authority shall provide accommodation and maintenance for any child whom they are looking after by –– 

(a)	placing him (subject to subsection (5) and any regulations made by the Secretary of State) with –– 

(ii)	a relative of his ….

on such terms as to payment by the authority and otherwise as the authority may determine; 

(4) A person falls within this subsection if he is –– 

(a)	a parent of the child;

(5) Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State. 

(5A) For the purposes of subsection (5) a child shall be regarded as living with a person if he stays with that person for a continuous period of more than 24 hours.”

6.	The Placement of Children with Parents etc. Regulations 1991 were the regulations made under s.23(5) of the Children Act 1989. Some of them did not apply to a child aged 16 or over. They defined “placement” as “the act of allowing a child who is in the care of a local authority to live pursuant to section 23(5) of the Act (placement of a child in care with parents etc.)” Reg. 5 provided that a placement should only be made after a placement decision had been made by the director of social services or by an officer of the local authority nominated for that purpose by the director.

7.	The contention on behalf of Mrs. P in a written submission to the Tribunal was that

“In the case of a child who is in the care of a local authority, the conjoint effect of Section 3(3)(b) of the Child Support Act 1991 and Regulation 27A of the [MAP Regulations] is that a parent can be “the person with care” only if that parent is a “parent the local authority has allowed the child to live with under Section 23(5) of the Children Act 1989.””

8.	It was further contended on her behalf that there was never anything which amounted to a decision to place L with Mr. B, rather than Mrs. P, and therefore that Mr. B was never a person who the local authority allowed L to live with. I proceed for the moment on the hypothesis that this further contention is correct.

9.	But for Reg. 27A of the MASC Regulations, it would in my judgment have been clear that Mrs. P’s contention in the previous paragraph would not have led to the conclusion that Mr. B was not the parent with care. It is not disputed that (ignoring for the moment Reg. 27A) Mr. B fulfilled limbs (a) and (b) of the definition of “person with care” in s.3(3) of the 1991 Act. As to limb (c), the question is whether he fell within a prescribed category of person. The prescribed categories were those in Reg. 51 of the MAP Regulations. If Mr. B was not a person with whom L was placed by the local authority, the Secretary of State is right in submitting that he did not fall within the category prescribed in the opening words of Reg. 51(1)(b), and it does not therefore matter that he did not fall within the exception contained in the later words.

10.	The question is whether Reg. 27A of the MASC Regulations makes any difference to that conclusion. An arguable view, based on a literal reading of Reg. 27A, is as follows:

(i)	the fact (which I assume for the purposes of my analysis to be correct) that L had been placed with Mrs. P, and that that placement had not been terminated and replaced by a placement with Mr. B meant that Reg. 27A(1) applied (Mrs. P being the parent with whom the local authority had permitted L to live under s.23(5) of the 1989 Act );

(ii)	that meant that, in determining whether Mr. B was a “person with care”, it was necessary to substitute for limb (b) of the definition of that expression in s.3(3) of the 1991 Act a reference to the parent with whom the local authority allowed L to live.

(iii)	Mr. B was therefore not the parent with care.

11.	I accept that stages (ii) and (iii) of the above argument follow from stage (i). (I observe that it would not follow that Mrs. P was a person with care; she clearly was not because L did not at the material time have her home with Mrs. P. It would, however, be sufficient for Mrs. P to show that Mr. B was not a person with care). However, in my judgment stage (i) of the above argument is not correct. It attributes to Reg. 27A a meaning and effect which in my judgment it does not have. 

12.	In my judgment Reg. 27A only effects a modification of limb (b) of the definition of “person with care” in relation to a child who is in fact living with the parent with whom he has been placed by the local authority. It does not modify it in a case where the child is not in fact living with that parent. In other words, the effect of Reg. 27A is that where a child in care is placed and is living with a parent, that parent will be a “person with care” whether or not that parent usually provides day to day care for the child. It does not have the effect that, if the child in fact goes to live with someone else (whether a parent or not) who fulfils the three (unmodified) limbs of the definition of “person with care” in s.3(3), that person cannot be a person with care because he cannot satisfy limb (b) of that definition as modified by Reg. 27A. 

13.	I reach that conclusion for a number of reasons. 

14.	First, the words in Reg. 27A “is allowed by the authority to live with a parent of his under s.23(5) of the Children Act 1989” in my judgment imply more than simply that a placement decision has been made. They in my judgment require that the child be actually living with the parent with whom he has been placed. If the child is not doing so, the case is not a special case within Reg. 27A.

15.	Secondly, Reg. 27A as actually drafted is circular in so far as it applies only where a qualifying child is placed with a parent. But a child can only be a qualifying child if one or both of his parents is an absent parent, and a parent can only be an absent parent in relation to a child if the child has his home with a person who is, in relation to him, a person with care. But since the main purpose of Reg. 27A is undoubtedly to make the parent with whom the child is living a person with care in circumstances in which he would not otherwise be, the use of the term “qualifying” in Reg. 27A is arguably self-defeating. That indicates that one must in any event read Reg. 27A as if it had started with something like the following wording: “where the circumstances of a case are that a child who, if section 3(3)(b) of the Children Act 1989 were satisfied, would be a qualifying child and who is in the care of a local authority ....” If the Regulation had been so worded, it would have been plain that its intention was solely inclusionary – i.e. to make a parent a “person with care” in circumstances in which he would not otherwise be, and not partly exclusionary – i.e. to make a parent not a “person with care” in circumstances in which he would otherwise be. 

16.	Thirdly, that the purpose of Reg. 27A was solely inclusionary is in my judgment confirmed by the enactment history of the provisions. Reg. 27A was inserted by amendment at the same time as the exception to Reg. 51(1)(b) of the MASC Regulations was added. Prior to those additions the position was that a parent with whom a local authority had placed his or her child could not be a “person with care”.

(a)	The purpose of adding the exception to Reg. 51(1)(b) was so that such a parent could be a “person with care”. (I suspect that that must have been done because s.4(4)(a) of the 1991 Act had expressly provided that the Secretary of State could not prescribe parents as a category under s.3(3)(c) of that Act, and because the unamended Reg. 51(1)(b) was considered to be in breach of that). 

(b)	The purpose of adding Reg. 27A seems likely to have been only to enable such a parent to be a person with care even though the day to day care was usually provided by the local authority (see the distinction between (i) the provision of accommodation and (ii) maintenance in other respects drawn by s.23(1) of the 1989 Act). It is in my view unlikely, given the enactment history, that an additional purpose of adding Reg. 27A was to prevent a parent who otherwise fulfilled the definition of a person with care from doing so because the child had been placed with the other parent and that placement had not been lawfully terminated. 

17.	Finally, it is submitted on behalf of Mrs. P that it cannot have been the intention of the legislation that she should be liable to pay child maintenance to Mr. B in such circumstances. In the observations on her behalf in reply it is said:

“This appeal raises an important issue. If a child has been committed to the care of the local authority by an Order of the High Court and pursuant to the leave of the Court the child is placed with one of the child’s parents, but runs away and goes to live with the other parent without any alteration in the High Court Order or in the placement authorised by the High Court, can and should the Child Support Agency compel the parent with whom he/she should be living to pay to the other parent money to support the unlawful situation?”

However, if a local authority believes that the child’s interests require that the child be prevented from living with the parent with which the child has in fact gone to live, it can no doubt take steps to prevent the child living there. I see no reason why it should have been thought appropriate for the child support legislation to attempt to achieve or assist in achieving that same object by refusing to accord to that parent the status of a “person with care” which he or she would have under the ordinary definition. 

18.	I observe that Mrs. P’s whole case was in any event a somewhat technical one, because there is no doubt that the local authority gave a measure of approval to L living with Mr. B. On 8 October 1996 the Official Solicitor had written to L saying :

“I have now received a letter from [the Council] which confirms that the Social Services Department assessment recommends that you should remain with your father for as long as you wish to do so. There is to be a further review in six months time when the Social Services Department will look at the possibility of discharging the care order. 

It looks unlikely, therefore, that there will be any more contested court proceedings; the older you get, the more unlikely it is that the court will make any order which is not in line with your wishes and I am sure, whatever her personal feelings are, that your mother will accept it.” 

19.	The Tribunal appears to have proceeded on the footing that Mrs. P’s submission (see para. 7 above) as to the effect of Reg. 27A was correct. It nevertheless dismissed her appeal. That was at least in part because it concluded that “it is sufficient to show that the authority had regard to the [Placement of Children with Parents etc.] Regulations”, and that the local authority had done so. I do not think that that approach was correct in law, but it is unnecessary for me to examine that in detail. On the view which I take as to the effect of the relevant statutory provisions no such questions arose. I therefore set aside the Tribunal’s decision as erroneous in law, but in exercise of the power in s.24(3)(a) of the Child Support Act 1991 I give the decision which the Tribunal should have given (which is the same as that which it actually gave), namely to dismiss Mrs. P’s appeal from the decision of the Child Support Officer made on 21 July 1997. 

Date: 8 June 2001					           (signed) Charles Turnbull
Commissioner