There are limited circumstances in which parents can apply directly to the courts for child maintenance and bypass the Child Maintenance Service (CMS). The decision of HHJ Hess in OS v DT [2025] EWFC 156 (B) provides such an opportunity.
Although the primary issue in the case concerned the division of the couple’s assets, the court also considered whether child maintenance should be paid. Both parents agreed that care of the children was shared equally, which could ordinarily prevent CMS jurisdiction under Regulation 50 of the Child Support Maintenance Calculation Regulations 2012.
It was argued that the court lacked power to order child maintenance because of the equal care arrangements. HHJ Hess disagreed, noting:
- Section 44 Child Support Act 1991: No CMS jurisdiction decision is required where a parent or child is not habitually resident in the UK.
- Section 8(6) Child Support Act 1991: A CMS decision is necessary only to calculate maximum income for a potential “top-up” order.
- Regulation 50 Child Support Maintenance Calculation Regulations 2012: No CMS calculation can be made unless one parent provides day-to-day care to a lesser extent.
HHJ Hess concluded that Section 23(1)(d) Matrimonial Causes Act 1973 was akin to Section 44 Child Support Act, and imposed no restriction preventing the court from making periodical child maintenance orders without a prior CMS jurisdiction decision.
But what does this mean for parents?
Where it can be shown that neither parent provides care to a greater extent, CMS can lose its legal jurisdiction to calculate child maintenance under Regulation 50 of 2012 regulations. But this rule ignores the financial circumstances of each parent, and may result in the loss of child maintenance even if the income between parents vary considerably.
We often see applications to CMS which are then challenged on the grounds of Regulation 50, which usually involved lengthy tribunal proceedings. Receiving parents are then forced into defending their position as a ‘primary carer’ to safeguard future maintenance, and child maintenance payments would often cease during that time.
The decision in OS v DT changes this position. It allows parents to acknowledge an equal shared care arrangement and bypass the CMS by applying directly to the court for a child maintenance order.
Parents should note, that unlike CMS, the courts consider the needs of the child and will view the financial prospects of both parents, and how each parent may facilitate the financial support to the child. If appropriate, they will award child maintenance.
In the case of OS v DT, HHJ Hess concluded that both parents were sufficiently secure financially to provide for the needs of the child, and dismissed the claim for child maintenance. However, the findings in this case provides a great opportunity to parents to secure child maintenance where CMS may fail to do so.
If equal care routines apply in your case, and your child maintenance award is, or will be challenged – consider the merits of a court based order.
– Author: Michelle Counley
