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