Child maintenance plays a vital role in supporting children when their parents live separately. While many parents are able to agree their own arrangements for the children’s welfare, including financial support, this isn’t always possible. In those situations, the Statutory Scheme steps in to assess, calculate, and, if necessary, enforce child maintenance payments.

These calculations are based on income information held by HMRC. However, if the Paying Parent’s financial circumstances extend beyond what is recorded, the assessed amount may be lower than it should be. So, what options are available when this happens?

 

1. Variation Application

If a Paying Parent income does not reflective the full financial circumstances, and it is believed other income has not been taken into consideration by CMS, an additional income variation is often the first step.  This can be reported by either parent and can be done through the “Report a change” section of CMS online account.

There are four types of additional income that can be raised:

• Unearned Income. This could include dividends, interest from savings and investments or rental income.   This income must be £2500pa or more to be considered. Note, there is no legal requirement to include these types of income without a variation application.  
• Additional Income. This applies only where maintenance is assessed at nil or flat rate automatically through certain benefits payable to the Paying Parent or their partner, but the Paying Parent also has an income from pension, employment or self-employment. This ‘additional’ income must be £100pw or more to be considered.
• Diverted Income. If the Paying Parent has the ability to control the amount of income they receive and that control is used to unreasonably reduce the income by diverting it to another person or for another purpose, it may be considered diverted income. There does not have to be a deliberate act to constitute diversion.
• If the Paying Parent has assets such as money, stocks and shares, property (not their main home), a notional income can be considered. Each category of asset must exceed £31250 to be considered.

CMS do not have the resources to investigate all variation applications thoroughly and many are rejected through “insufficient evidence”.  If that happens, the decision should be disputed further, which we discuss later.

2. Referral to the CMS Financial Investigation Unit (FIU)

In some cases where the financial circumstances do not reflect the child maintenance award, the case may be referred to the Financial Investigation Unit (FIU) who will conduct a review of the allegations of possible additional income

A Receiving Parent can request a referral to FIU but must explain why the income is believed to be wrong.   The FIU will only accept the case if they agree there is merit in the dispute.

FIU will gather financial information directly from relevant organisations, including banks, mortgage providers, a credit reference agencies.  It does not rely on the Paying Parent to provide information, although they might be asked to provide additional information later in the process if deemed necessary to assist with making a decision.

Parties do not receive a full copy of the FIU file or the evidence gathered, unless the matter is submitted to a Tribunal, at which point the Tribunal may direct the provision of the full file.

An FIU investigations can take up to 2 years, and does not guarantee a change to the child maintenance.

3. Disputing Decisions

If child maintenance is revised as a result of the variation or FIU investigation, that decision can be disputed, with the first step being a request for a mandatory reconsideration, which must be raised within one month of the revised decision.

A Mandatory Reconsideration Notice is issued which will either revise, or refuse to revise the decision.  A mandatory reconsideration against an FIU decision will always refused because a CMS case worker cannot over rule the decision.

Note; in some cases parents are told they cannot raise a mandatory reconsideration against an FIU decision – that is not correct.  Stand your ground and insist on the mandatory reconsideration being completed.

Having received the Mandatory Reconsideration Notice, if a party remains dissatisfied they can submit an application to HMCTs for an independent Tribunal panel to review the case further. Again the appeal application must be filed within one month of the Mandatory Reconsideration Notice issue date.

Some parents experience difficulty receiving a copy of the mandatory reconsideration notice.  All is not lost, and you may still be able to file an appeal with if you can demonstrate that you have been through the process, but no notice has been issued.

The Tribunal process will involve a much greater investigation into the financial circumstances of the Paying Parent.  Evidence will be requested by the Tribunal Judge, which might include tax returns, company accounts and even bank statements. All parties will receive copies of the evidence and have an opportunity to comment on it.

The Tribunal panel will review the financial evidence and will take further oral evidence.  Once satisfied they have all the necessary information, they will make a decision based on all evidence presented to them.

A Tribunal decision is authoritative, and can only be overturned if there is a proven error in law. Whether you are the Paying Parent or the Receiving Parent, it is vital that you prepare to represent your case, and you have a full understanding of the boundaries and remits of the Tribunal process.

  Final Comments

Whether the variation or the FIU route is explored to consider the true income of the Paying Parent, the process can be lengthy.  Where an appeal is necessary, it will take years rather than months to conclude.

Deciding which route to take can be difficult, and may depend on the level of evidence available to represent a case to the Tribunal and how long you are prepared to wait.

Enforcement of any arrears from these decisions will not take place whilst an appeal is ongoing.

An FIU investigation is unlikely to continue if an appeal is live against the same disputed decision.

– Author: Michelle Counley

When a parent disagrees with a decision made by the Child Maintenance Service (CMS), the first step is to request a Mandatory Reconsideration . This must be done within 30 days of receiving the original decision notice.

Mandatory Reconsideration gives the CMS an opportunity to review the decision, taking into account any new information or evidence that may not have been considered initially. Once the review is complete, CMS will issue a Mandatory Reconsideration Notice, confirming whether the decision has been changed or upheld.

Although the process is intended to be straightforward, issues often arise especially when errors are not identified early. These oversights can have long‑lasting and financially significant consequences.

Clarity is essential when asking for a Mandatory Reconsideration. The CMS may issue several decisions in close succession, and unless you clearly say which decision you are challenging, your request will automatically be linked to the most recent one, and that may not be the decision you intended to dispute.

This can send the appeal in a completely different direction than you expected and potentially may be dismissed.

A recent case highlights just how important accuracy is during the reconsideration process.

The parent received a revised maintenance calculation that added a variation for additional income, backdated over several years and resulting in substantial arrears. Only a few days later, the parent left their job and moved onto benefits, which changed their calculation to the flat‑rate amount. The parent requested a Mandatory Reconsideration to challenge the inclusion of the additional income, but because the flat‑rate assessment had already been issued, the challenge was inadvertently linked to that newer decision rather than the one relating to the additional income.

CMS appeals progress slowly, and it was around 18 months before a hearing was scheduled. At the hearing, it became clear that the appeal related to the flat‑rate benefits decision—not the original income‑based calculation the parent had intended to dispute.

The Tribunal dismissed the appeal, as the flat‑rate decision was legally correct. By this stage, the time limit to request a reconsideration of the income decision had expired, leaving the parent unable to challenge it.

As a result, the parent was left with substantial child support arrears based on a decision that had never been correctly challenged and could no longer be appealed.

The Mandatory Reconsideration process may appear simple, but it carries significant legal weight. Identifying the correct decision, submitting clear grounds for challenge, and understanding the difference between a complaint and a reconsideration request are all crucial steps in protecting your rights.

To avoid these pitfalls, it’s vital to:

• Clearly identify which specific decision you are disputing
• Use the exact date of the decision you are appealing.
• Make sure your dispute is against the decision itself, and not the quality of service.

Mistakes that go unchallenged, even accidentally, can accumulate over many years and lead to devastating financial consequences.

 – Author: Michelle Counley

 

When it comes to family lawyers, their primary objective is to achieve the most favorable outcome for clients during financial remedy proceedings. However, there’s a crucial question that often goes unaddressed in client conversations—one that can have significant financial consequences. What about the Child Maintenance Service (CMS)?

The CMS allows individuals to apply for child maintenance whenever a child does not live in the same household as one or both parents. Upon receiving an application, the CMS intervenes to calculate and oversee child maintenance payments. Subsequently, the courts relinquish their authority to issue orders for periodic child maintenance.  CMS continues to hold authority unless both parties reach an agreement, and a consent order is established.

When lawyers engage in conversation with their clients, discussing the CMS is vital. Not only does this help to clarify if any existing application is relevant and how it might affect final orders, but it also ensures that clients are fully informed about the risks associated with CMS in the future.

It is important to recognise that the CMS does not automatically close when court orders are signed. The liability remains until the applicant actively closes the application, thereby removing the authority for the Secretary of State to act on their behalf. If this is not managed correctly, paying parents remain vulnerable to charges through both the court system and the CMS.

 

A Real-Life Scenario

Recently, we assisted a paying parent who found themselves facing a staggering £20,000 CMS debt due to this very situation. Despite both parties having legal representation, neither lawyer asked about the existence of a CMS case, nor discussed the implications of this when finalising orders.  The court was not made aware of the CMS application, and the order for child maintenance was granted.  The paying parent dutifully adhered to the court order —unaware that their liability with the CMS was accumulating arrears.

Had the court been notified of the CMS claim, any monies paid under the order could have been offset against the CMS charges. Since neither party’s representative made the court aware of the CMS arrangements, the CMS debt remains outstanding.

 

The ‘12 month’ rule

Financial court orders offer a short-term guarantee for periodical payments for child maintenance.  After 12 months have passed, either party can apply to CMS for a reassessment of child maintenance.  At that point, the child maintenance clause in the court order becomes null and void. This provision ensures parents have the right to seek CMS assistance when needed.

When parents’ circumstances change, applying to the CMS without incurring any costs, can be a helpful opportunity.  However, lawyers should understand that it also serves as an accessible exit route for those entangled in costly settlements.  It is not uncommon for maintenance awards initially set at thousands of pounds to decrease significantly, sometimes to just a few hundred pounds per month.

Importantly, Section 9 (4) Child Support Act prevents any order clause from prohibiting an application to CMS.  After 12 months have passed – the security of the court order no longer exists.

 

Seek Expert Guidance

CMS may not be an immediate concern when lawyers receive instructions from their clients, but it remains a crucial topic for discussion.  Seeking tailored advice helps to avoid unpleasant surprises in the future.

NACSA offers valuable expert advice and assistance to lawyers and their clients. If you have any CMS questions please visit our website  nacsa.co.uk or email mailto:[email protected]

Remember, awareness and proactive steps can make all the difference in protecting your client’s financial interests.

– Author: Michelle Counley

 

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