Child Support, Sharing Care and the Problems in Top Up Orders (Out into the Open at Last)

There was a lot in HHJ Hess’s judgment OS v DT [2025] EWFC 156 (B):

• that acquest periods may well end as soon as there is a clear end to the relationship; [34]–[37];
• an adjustment for costs may be appropriate where one party has purchased their home and the other hasn’t yet ([39] saw HHJ Hess factoring in the stamp duty and purchase costs that the wife had coming down the road at her, when the husband had already purchased his home);
• a routine removal of pre-marital pensions; [32];
• chattel division can legitimately be put to one side (‘I have taken the view that the family’s chattels should be divided as a separate exercise’); [17];
• where an asset can be valued then it can be shared (and an applicant bought out of it) – the fact that this asset may fluctuate in value is not a reason to engage in Wells sharing of the asset ([46]⁠(xii)); and
• that costs orders will not automatically follow absence of clarity of disclosure, in the absence of something really pretty compelling; [22].

Can a court make an order where there is regulation 50 shared care?

But speaking for the child-support nerds, we all scurried through the maze, whiskers twitching till we got to (ironically) para 50 of the judgment, where at last the rancid cheese ‘what does regulation 50 shared care actually mean and do’ was to be cleaned from the passageways.

Just to be clear there is a difference between

• ‘shared care band equal’ (the NRP has more than 174 nights per year) entitling them to a bit over a 50% discount on what is paid); and
• ‘regulation 50 shared care’ which in theory focuses on the quality of your care and decision making about the child (the regulations aren’t clear what this means though there are a number of commissioner decisions providing some guidance^[1]).

We were reminded that where a maintenance assessment is being pursued, but there is no jurisdiction to make an award, then FPR 29.8 is the place to go:

1. the respondent should trigger an application;
2. a notice is then served on the applicant;
3. the applicant has 14 days to indicate whether they are persisting with their application which otherwise is treated as withdrawn; and
4. if the application is pursued, then it can be addressed without a hearing.

But top of the bill was what HHJ Hess had to say about the Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677), reg 50, which needs to be set out almost in full and with the key point in emphasis.

‘Parent treated as a non-resident parent in shared care cases

50.—(1) Where the circumstances of a case are that—

(a) an application is made by a person with care under section 4 of the 1991 Act; and

(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,

the case is to be treated as a special case for the purposes of the 1991 Act.

(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.

(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.

(4) For the purposes of paragraph (3), where a person has made an election under section 13A(1) of the Social Security Administration Act 1992 (election not to receive child benefit) for payments of child benefit not to be made, that person is to be treated as receiving child benefit.’

Where there is no ‘lesser care’ by one parent, then there is no ‘non-resident parent’ and without one of those the CMS process cannot run. So, what we have all been wondering about (and strange that 13 years on, the debate had still not be resolved!) is this:

Question A: What happens if you do manage to establish regulation 50 shared care?

Is the situation that the CMS simply has no jurisdiction (because then that would mean that you can ask the court for provision… on the basis of the principle that the court is only emasculated where the CMS has jurisdiction)?

Or:

Is it that the CMS has carried out its assessment (and the assessment is zero)? …which would be a great shield for the evasive Schedule 1 NRP, for example… because the applicant would never be able to show that the maximum threshold of £156,000 was reached and in consequence no top up order could ever be imposed, however great the NPR’s earnings.

Question B: And secondly who decides?

Do you have to make an application to the CMS and be knocked back? Which after all is what you need to do where you are disputing whether the NRP (non-resident parent) earns over £156,000 and so is a top-up case or not (Dickson v Rennie [2014] EWHC 4306).

Question A is answered at [52]⁠(viii): ‘you go to court’. The dichotomy is resolved:

• because the CMS is prevented from exercising jurisdiction;
• this mean that the court can make an order;
• it can do so because of s 8 CSA 1991 which reads ‘in any case where [the Secretary of State would have jurisdiction to make a maintenance calculation], no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and non-resident parent concerned’. Here HHJ Hess decides that the correct interpretation is that the CMS has no jurisdiction – court jurisdiction resumes.

Question B’s answer was in [52]⁠(vi) and was more of a surprise you don’t need to go to the CMS for your answer as to whether there is shared care or not. Yes, you could have made an application to the CMS and been knocked back and that would be very strong evidence… but even if you don’t have this then the court can make a decision about whether there is shared care and so progress to make an award.

No real guidance on the follow-up question we all raise as to well what the court should do with this jurisdiction – how does it approach quantum? All of those indications from Mostyn J in the run of cases from GW v RW [2003] EWHC 611 onwards that you think about what the CMS would have done don’t really help because what the CMS would do is firmly close the door in your face. Presumably it is James v Seymour all the way… though here, HHJ Hess considered it fair to decline to make an order, presumably being reassured that each side had substantial capital and earning capacity.

Whilst the editor of the FRJ Blog is kindly indulging me in a child support nerd-fest, here is a problem just as big that has been floating along unrecognised for even longer and I have doubts that it can be solved as easily.

The questionable enforceability of top-up orders

Remember how we get our top-up orders in child support cases…

• First, we go to the CMS.

• And then fairly quickly for high earners reporting income of £156,000 or above on their tax return we receive clarification that the cap is engaged:

  • the maximum income that the CMS can see is laid out in para 10(3) of Schedule 1 of the Child Support Act 1991, and where that cap is hit,
  • that triggers s 8(6) of the Child Support Act which says:

    ‘(6)This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

    (a) a maintenance calculation is in force with respect to the child;

    (b) the non-resident parent’s gross weekly income exceeds the figure referred to in paragraph 10(3) of Schedule 1 … and

    (c) the court is satisfied that the circumstances of the case make it appropriate for the non-resident parent to make or secure the making of periodical payments under a maintenance order in addition …

• Of course, where £156k of income is not clear and a variation has to be pursued, we are likely to be waiting around for three years or more whilst the tribunal reaches its conclusions as to income for child support purposes… but this terrible flaw is not the focus of this note.

So, the situation at this point is that:

• There is a CMS award in place
• And that is what provides the ticket to make application to the court for top up…
• …But what it also does is trigger the reg 19 (Child Support Maintenance Calculation Regulations 2012) procedure which fixes an annual review of the maintenance award and a new award is imposed each year where the NRP’s gross weekly income has changed.

That would not matter were it not for reg 3 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 no 2645 (chopping it back to the key points):

‘where a maintenance calculation is made … that order shall, so far as it relates to the making or securing of periodical payments to or for the benefit of the children with respect to whom the maintenance calculation has been made, cease to have effect on the effective date of the maintenance calculation.’^[2]

Yossarian’s comment ‘that’s some catch that Catch-22’ springs to mind …

• You can’t get a top-up order without starting the CMS process.
• But as soon as you do, you plant the virus for the top-up order’s destruction.

So, we may have a field full of top-up orders that technically can’t actually be enforced. Though they are being adhered to, in fact a CMS annual review may have stripped them of their binding effect. Every applicant would need to go back to court to renew the court order.

In the past there was thought that you could cover this off by some sort of agreement in the court order… but reg 4 of the same regulations provides for agreements to go the same way.

Would an undertaking work instead? Time will perhaps clarify for us.

In the meantime, it has been such a horrible thought that every single (domestic case) top-up award risks imploding that I have been happy that this problem is mouldering in the long grass…

Now that we know it is coming out in the open, I have been thinking about it some more. So far, all that I have come up with is that the applicant should:

• make their CMS application;
• secure their maximum assessment;
• pursue their top-up award;
• be careful about the drafting of it;
• and then DISCHARGE the CMS case to prevent the annual review from terminating the hard won top up.

Of course this doesn’t stop the other party from applying to the CMS once the order is a year on and discharging it anyway – but at least it doesn’t happen automatically.

The inevitable Christmas order footnote

I know people don’t like them, but doesn’t it make you want to think some more about a Christmas order? They are plastic coated against all of this destruction …

• the order is in fact a chain of orders;
• each lasts a moment less than 12 months and ends on Christmas Day;
• there is never a moment when there isn’t an order (permitting you to make an application) and there is never a moment when there is an order older than 12 months; and
• s 4(10)(aa) Child Support Act 1991 tells me that this makes this arrangement safe.

I very much hope that someone will come up with alternative solutions. I am sure our editors will rush to print with them.