CS3 and Equal Shared Care Cases
In cases where parents have absolute equal care of their child/ren, legislation may prevent an application for child maintenance payments to be made.
In previous schemes, parents who had absolute equal shared care were still liable to pay maintenance. The Non Resident Parent being defined entirely by the person who did not receive child benefit for the children. CMS should no longer determine the role of parents by way of a claim to child benefit.
Regulation 50 (2) Child Support Maintenance Calculation regulations 2012 states:
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant. [our emphasis]
A response from Department of Works and Pension Policy Team state;
“It would not be right to ignore the fact that a small, but growing number of parents are entering into agreements to share the care of their children on an exactly equal basis. Therefore under the new scheme, where there is evidence of exactly equal day to day care, neither parent will be required to pay statutory child maintenance. I.e. would not have a statutory case.
The test applied here is that of equal day to day care. This involves the overall care arrangements for the child being shared equally and not just where they stay overnight. Parents who have been able to make an agreement where they entrust the care of their child to each other to this extent will be far better placed to decide between them how the financial needs of their child should be met.
Unlike the previous schemes, the test for equal shared care is not based on the number of nights that the child may stay with each parent, although that remains a significant factor. The prevention of an application can only occur if there is evidence, such as a contact order, that makes each parent entirely responsible for the care regime of the child on an exact equal basis. This may include who takes care of the child through school holidays, or who takes the child to after school clubs, or doctors appointments. CMS will almost certainly require a court order to reject an application. If there is no court order, but a parent has substantial evidence to show care is provided equally, they may wish to take the necessary steps to present the case to HMCTs. For more information on this please see our HMCTs appeal page