Equal shared care and child maintenance: what OS v DT [2025] means for parents

The recent Family Court decision OS v DT [2025] EWFC 156 (B) has clarified an issue that has caused confusion for years: if parents share the care of their children exactly equally, can child maintenance still be payable?

The short answer is: yes, but not through the Child Maintenance Service (CMS). In this article, Family partner Grainne Fahy and Senior Associate Yasmin Khan-Gunns explain what the court decided and what it means in practice.

Who decides maintenance in equal shared care?

In most separated families, child maintenance is dealt with by the CMS. The CMS calculates payments where:

• One parent provides more day-to-day care, and
• The other parent pays maintenance.

However, under the statutory scheme created by the Child Support Act 1991, the CMS only has jurisdiction where there is a “non-resident parent”.

So, what happens when care is exactly equal?

For years, there has been uncertainty:

• Does the CMS simply assess maintenance at £0?
• Or does the CMS have no power at all to assess in those circumstances?

That distinction matters because if the CMS has jurisdiction (even at £0), the court is usually prevented from making its own maintenance order.

The Decision in OS v DT

In OS v DT, His Honour Judge Hess clarified the position.

The court found:

1. The CMS has no jurisdiction in exactly equal shared care

If parents genuinely share care equally, not just in overnight stays but in day-to-day responsibility, there is no “non-resident parent” under the statutory scheme.

That means the CMS cannot make an assessment at all.

2. The Family Court can step in

Because the CMS has no jurisdiction in those circumstances, the statutory bar preventing the court from making maintenance orders does not apply.

The Family Court therefore retains its power to make a child periodical payments order (in other words, a maintenance order).

Importantly:

A parent does not need to apply to the CMS first.

The court can determine whether care is equal and, if so, consider maintenance itself.

What happened in this case?

Although the court confirmed it had the power to order maintenance, it decided not to award ongoing child maintenance payments in this particular case because:

• Both parents had substantial capital.
• Both had strong earning capacity.
• The father was facing redundancy.

However, the court did order the father to pay 75% of the children’s school fees, reflecting his financial position.

This shows that even where regular maintenance is not ordered, the court can make targeted financial provision for children.

Why this matters for parents

This case is important for three main reasons:

1. Equal shared care does not automatically mean “No Maintenance”

If care is exactly equal, the CMS may not be able to help – but the court can.

2. The definition of “equal” matters

Disputes may increasingly focus on:

• Whether care is truly equal in practice.
• Whether day-to-day responsibility is shared, not just overnight stays.

Small factual differences could affect jurisdiction.

3. The court has flexibility

The Family Court can:

• Order regular maintenance.
• Make school fees orders.
• Structure child-related financial provision to achieve fairness.

The outcome will depend on the parents’ resources and the children’s needs.

Final thoughts

OS v DT [2025] provides long-needed clarity. In exactly equal shared care cases:

• The CMS does not have jurisdiction.
• The court can make maintenance orders.
• No prior CMS application is required.

For separating parents navigating shared care arrangements, understanding this distinction is crucial.

If you have questions or concerns about shared care arrangements, please contact Grainne Fahy or Yasmin Khan-Gunns.