Child Maintenance Solicitors

While many families have arrangements under which a child spends substantial time with both parents, child maintenance may still be payable where there is an imbalance in care. For example, even where a child spends approximately 55% of their time with one parent and 45% with the other, the parent providing the majority of the care will be entitled to receive child maintenance. Accordingly, the arrangements for a child and the allocation of time between parents can have a significant impact on both entitlement to, and the amount of, child maintenance payable.

How is child maintenance calculated?

In most cases, child maintenance is assessed and administered by the Child Maintenance Service (CMS).

The CMS calculates child maintenance primarily by reference to:

• The paying parent’s gross income (after deducting pension contributions); and
• The level of shared care between the parents.

Where a child stays overnight with the paying parent, the amount of maintenance payable is reduced to reflect the costs that parent incurs directly.

Broadly speaking, the CMS applies the following reductions:

1. No overnight stays: Full child maintenance is payable, no reduction applied.
2. 52 to 103 nights per year: A reduction of one-seventh (14%)
3. 104 to 155 nights per year: A reduction of two-sevenths (28%)
4. 156 to 174 nights per year: A reduction of three-sevenths (42%)
5. At least 175 nights per year: A reduction of 50%, together with a further adjustment.

A useful tool to calculate how much child maintenance is payable can be found on the Gov.uk website. It is free of charge, and it can be used repeatedly, meaning that a parent can consider what the child maintenance should be payable in various scenarios, if so required.

The CMS will usually rely on a court order, parenting plan or written agreement to establish the division of care. Where no formal documentation exists, it may consider other evidence to confirm the actual pattern of care.

Why overnight stays are not always the whole story

Many parents assume that child maintenance depends solely on the number of nights a child spends with each parent. However, the legal position can be more complex.

Equal shared care arrangements are becoming increasingly common as attitudes towards parenting continue to evolve. Many separated parents seek to play an active role in their children’s lives, and it is no longer unusual for children to spend equal time with both parents.

There are cases in which overnight stays are split equally, but the CMS has nevertheless concluded that one parent provides a greater proportion of the child’s day-to-day care and therefore remains liable to pay child maintenance.

Conversely, there have been cases where overnight stays were not divided exactly equally, but the overall care arrangements were considered sufficiently balanced that no parent could properly be regarded as providing less day-to-day care than the other.

This is where Regulation 50 becomes particularly important.

Regulation 50 & equal day-to-day care

Regulation 50 of the Child Support Maintenance Calculation Regulations 2012 provides that “a person cannot be treated as a non-resident parent for child support purposes unless he provides day-to-day care to a lesser extent than the other parent.”

Where both parents provide a home for the child and share day-to-day care equally, the CMS may conclude that neither parent is a non-resident parent for child support purposes. In those circumstances, the CMS may determine that it has no jurisdiction or authority to make a maintenance calculation, or it may make a nil assessment (i.e. £0 payable).

Although the CMS will often begin with the assumption that the parent receiving the child benefit is the parent with primary care, that assumption can be rebutted. For example:

• One parent may not be eligible for child benefit because of their income.
• Child benefit may simply have remained in one parent’s name following separation for administrative reasons.
• The evidence may demonstrate that both parents are equally responsible for the child’s day-to-day care.

What counts as “day-to-day care”?

There is no definitive legal test for day-to-day care. Each case will depend on its own facts and the evidence available.

Relevant factors may include:

• Taking the child to and from school;
• Attending medical, dental and other healthcare appointments;
• Managing extracurricular activities;
• Providing meals and clothing;
• Organising social activities;
• Supervising homework and daily routines; and
• Overall responsibility for the child’s everyday needs.

The CMS will consider the evidence as a whole rather than focusing on any single factor.

Challenging a CMS decision

Mandatory reconsideration

If you disagree with a CMS decision, you can ask the CMS to reconsider it through a process known as Mandatory Reconsideration.

The request must be made within one month of the date of the decision.

Although a request can be made by telephone, it is generally advisable to do so in writing and retain a copy. You should provide:

• Your full name and CMS reference number;
• Details of the decision you are challenging;
• Reasons why you believe the decision is wrong (for example, errors in income calculations and/or you provide more care than the CMS have assumed); and
• Any supporting evidence.

The CMS will review your case and send you a Mandatory Reconsideration Notice with their new decision.

Appeal

If you are still unhappy with the decision, an appeal can be made within 1 month to an Independent Tribunal using form SSCS2, which is available on the government website.

The case will be reviewed by an independent panel, who will make a final decision. You may be asked to attend a hearing, but sometimes cases are decided without one.

When does the Family Court become involved?

In cases where one parent cares for the child to a larger extent, it is the CMS calculator which is used, and in the absence of an agreement between parents, it is the CMS who determines the amount payable, rather than the court.

In cases where there is equal shared care and Regulation 50 successfully applies, but the CMS  decides it does not have jurisdiction to make a child maintenance assessment, the Family Court will then regain jurisdiction to make child maintenance orders.

More recently, the Family Court has considered whether parties in genuine equal care arrangements may apply directly to the court without first seeking a CMS assessment.

OS v DT [2025] EWFC 156 (B)

In OS v DT [2025] EWFC 156 (B), HHJ Hess considered financial remedy proceedings involving three children whose care was shared equally between their parents. One of the issues before the court was whether it had jurisdiction to make a child periodical payments order without the parties first making an application to the CMS.

The judge concluded that, because the CMS had no jurisdiction in circumstances of genuinely equal day-to-day care, the Family Court did have jurisdiction to consider child maintenance without requiring a prior CMS application.

Having reached that conclusion, the judge ultimately decided not to make a child maintenance order. However, he did order the father to pay 75% of the children’s school fees, taking into account the parties’ financial circumstances, including his greater earning capacity and retention of more capital assets within the wider financial settlement as part of the divorce.

An important note of caution

While OS v DT provides persuasive authority, it was a first-instance Family Court decision. Unlike decisions of the Court of Appeal or Supreme Court, it is not binding on other judges. Although parties can rely upon its reasoning, another court is not obliged to follow it.

It is also important to remember that the case concerned a genuinely equal sharing of day-to-day care. If there is any imbalance, however slight, in the parties’ day-to-day care arrangements, then Regulation 50 will not apply. In those circumstances, the CMS will retain jurisdiction and, unless one of the statutory exceptions applies, the Family Court will not have jurisdiction to make a child maintenance order.

How we can help

Disputes concerning child maintenance, shared care arrangements and CMS jurisdiction can be complex, particularly where parents share responsibility for a child’s day-to-day care.

At Ward Hadaway, our specialist family law solicitors have extensive experience advising clients on child maintenance disputes and applications to the Family Court. If you would like advice tailored to your circumstances, please contact our team.