First among equals?

Many separated parents assume that when the care of their children is shared equally, neither parent can claim child maintenance. However, that assumption is incorrect. In assessing any claim for child maintenance where there is equal shared care, it is important to differentiate between “equal nights cases” and “equal day-to-day care cases”. In either scenario, one parent may have a legitimate claim for child maintenance against the other parent, but the procedure for making that claim, and the amount of any award made, will depend on the type of case.

Who decides whether child maintenance is payable?

As practitioners will be aware, child maintenance payments can be:

• agreed between parents
• calculated by the Child Maintenance Service (CMS), or
• ordered by the court in prescribed circumstances or where the CMS lacks jurisdiction

When considering a claim for child maintenance, it is important to first determine whether the case falls under the jurisdiction of the CMS or the court. In general, whilst the CMS uses a rigid statutory formula to calculate child maintenance, the court retains a discretion to make child maintenance awards based on the particular circumstances of a case.

What is meant by equal shared care?

What happens when the care of a child is shared equally such that it is difficult to establish whether there is a “non-resident parent” and a “parent with care”? The first step is to ascertain whether the equal shared care applies to the number of overnights only (equal nights cases) or more broadly to the day-to-day care of the children (equal day-to-day cases). Whereas identifying equal nights cases will generally be straightforward, an assessment of whether there is equal day-to-day care will require a more holistic assessment of what is happening with any children “on the ground”. Beyond considering overnight contact only, relevant factors might also include:

• who is the primary point of contact for the school or nursery?
• who spends more time with the child after school or nursery?
• who organises extracurricular activities, playdates and childcare?
• who covers the child’s expenses?

Why is this relevant?

In equal nights cases the CMS retains the power to make a maintenance assessment and will factor in the division of nights using the statutory formula. This is found at paragraph 7 of Schedule 1 to the Child Support Act 1991, which provides that the basic rate of child maintenance is reduced by ½ + £7 per week if the qualifying child spends more than 175 nights with the non-resident parent per year. For a parent paying the “maximum assessment” level for one child, equal overnights will translate into a reduction of child maintenance from c£15,250 per annum to c£7,300 per annum.

However, where there is equal day-to-day care, the CMS has no power to assess child maintenance, as the Child Support (Maintenance Calculation) Regulations 2012, regulation 50 provides that a CMS assessment will not be made unless it is established that one parent provides “day to day care to a lesser extent” than the other. In a situation where one parent is receiving child benefit, the CMS will, unless provided with clear evidence to the contrary, treat the parent in receipt of child benefit as the parent with care.

Until recently, it was unclear whether the court could make a child maintenance order in equal day- to-day care cases. The case of OS v DT [2025] EWFC 156 (B) has since clarified the position.

OS v DT

This was a Central Family Court decision, and therefore not binding on other courts. It primarily concerned the application of s25 of the Matrimonial Causes Act 1973 (MCA 1973) to the significant pool of assets shared between the parties following a long marriage. Having decided on the division of assets, HHJ Hess considered whether the husband should be ordered to pay child maintenance and school fees where the parties were taking on “an exactly equal burden of child-care” (ie equal day-to-day care). The husband argued that the court had no jurisdiction to order child maintenance in those circumstances. HHJ Hess did not agree, stating:

“my view is that in a situation 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. The bar on court applications provided by Child Support Act 1991, sections 8(1) and 8(3) does not apply in this scenario and the court retains its basic powers under [s23(1)(d) MCA 1973].”

Accordingly, there is now judicial support for the proposition that the court can make child maintenance orders in equal day-to-day cases. Following this judgment, an application under FPR r29.8 to prevent the court from making a child maintenance order in an equal day-to-day case on the basis that the CMS would have jurisdiction to make a maintenance assessment should fail.

It remains to be seen how the court will exercise its discretion to order child maintenance in equal day-to-day care cases. On the facts of OS v DT, HHJ Hess declined to make a child maintenance award on the basis that the parties were left with a reasonable level of capital to meet their needs and the husband was shortly to be made redundant and have little or no earned income. The position might be different where there is a significant disparity in the financial resources of the parents. In all cases where such an application is made, the court must consider all of the circumstances of the case before deciding whether to make a child maintenance order.

The case of OS v DT involved a married couple, but its ruling could equally apply to an unmarried couple where a claim was brought for child maintenance under Schedule 1 to the Children Act 1989. There is no reason to believe that the court would have reached a different conclusion on the jurisdiction issue.

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