Child Maintenance and shared care

A tale of two jurisdictions: Child maintenance and shared care

Strangely, a specific area of family law is carved out and left almost exclusively to be dealt with by a body called the Child Maintenance Service (CMS). The name tells us our subject – child maintenance. Generally, everything else in family law is left to be dealt with by the Family Court. It is through numerous and overly complicated revisions to the law that this binary system has come to be, but it is one we are left to grapple with.

Ordinarily, to get the person who does not live with a child, ‘the non-resident parent’ (NRP), to pay maintenance to the other parent, an application is made to the CMS. There are exceptions, but most of the time, the CMS (and the ‘Tribunal’ if there are disputes), is the forum that deals with and determines the child maintenance award. Where there are exceptions, and CMS does not have jurisdiction, the Family Court will deal with the matter. Recently, OS v DT [2025] EWFC 156, a decision in the Family Court, clarified the position on a specific situation, but one which many people may encounter.

Where there is shared care of the children, and importantly, there is equal shared day-to-day care (more on this later) of the children, but there is a need for a child maintenance order, it is the Family Court that has jurisdiction to hear the case, not the CMS. Specifically, the judge said:

‘where there is an established agreement or order which clearly provides for parents to have exactly equal care for a child, either party can apply to the court for a child periodical payments order and that party does not first have to make an application to the CMS’. – para 52 (viii).

This is similar to the situation where one of the parents of the child, or the child themselves, are not resident in the United Kingdom. The CMS in that scenario will not have jurisdiction. The applicant can apply to the Family Court for relief, without having to apply to the CMS first just for it to confirm it has no jurisdiction.

The judge’s words in OS v DT seem quite deliberate. He says an order or agreement must clearly provide each parent has exactly equal care for a child. More often than not, the number of nights a parent has with the child is the determinative factor used to calculate maintenance. However, there may be scenarios where there are an equal number of nights spent with each parent, and the day-to-day care provided is of a lesser extent than the person applying for maintenance. If that is the scenario, the correct place to apply is the CMS.

Where the CMS has jurisdiction and is dealing with an application that one party provides lesser day-to-day care, the CMS or Tribunal will first presume a party not receiving child benefit is the party providing lesser day-to-day care. If there is evidence that the presumption is rebutted, all of the evidence is assessed. The assessment of what day-to-day care is provided focuses on practical care. It may also involve adopting a balance sheet approach, considering the time spent with each parent (counting the hours alone isn’t determinative), their arrangements and provision made for healthcare, recreational activities, clothing, and food, and what extent each make arrangements for schooling for the child. The list of considerations is non-exhaustive, and it is not mandatory for the aforementioned factors to be considered.

However, if the scenario is that there is an agreement or order that there is exactly equal shared care of the children between the parties, as per the words of the judge in OS v DT, and there is a need for a child maintenance order, the CMS does not have jurisdiction, and the court to apply to is the Family Court.

If you are dealing with child maintenance issues involving shared care, or are unsure whether the CMS or Family Court has jurisdiction in your case, I recommend taking early legal advice.

Please contact Jennifer Allen by emailing JAL@hughes-paddison.co.uk or call 01242 574244 to discuss your situation.