Legal Advice on CMS Shared Care and CMS Day to Day Care
Shared Care & Day to Day Care - Exceptional representation from the UK's leading experts in Child Maintenance Law
The concept of 50/50 Day to Day Care was introduced under the 2012 Child Maintenance Legislation. It is to recognise that two parents can co-parent a child even if they cannot see eye to eye generally. Day to Day care is different from 50/50 shared care. This is where many parents go wrong when asking the CMS to consider care arrangements but often the biggest obstacle parents face is the Child Maintenance Service itself whose fundamental role is to calculate and collect child maintenance. It is not geared up to resolve parents' disputes about 50/50 care and in most, if not all, cases they will leave the existing arrangements in place which will result in one or both parents applying to a child support tribunal to have their case resolved. The concept of 50/50 day to day care goes against all principles of the Child Support Act and the role of the statutory service to calculate and collect payments so its hardly surprising that they generally refuse to change the assessable liability particularly when they may have the other parent denying that 50/50 care exists.
What is Day to Day Care?
Day to day care is not the same as shared care, Put simply, shared care is concerned with which pillow does your child have its head on at midnight - either your home or the other parents' home. Day to day care looks at the other 23 hours and 59 minutes. Although shared care plays a part in terms of the opportunity to provide care, because a 7 day period cannot be split equally, the pattern of care over 14 days or even 28 days is looked at. It is important that you remember that day to day care has no legal definition and you can be providing care for your child even if they are not with you. The legal test for Regulation 50 looks for the same amount of day to day care as the other parent so you should consider if you also take responsibility for major decisions such as education, activities and other social or welfare matters.
Getting the right team on your side.
Since 2014, when Regulation 50 came into effect, there have been a number of Upper Tribunal decisions on aspects of applying Regulation 50. The main case successfully argued by Mike Smith from Durham Legal Services is JS v Secretary of State for Work and Pensions and Another (CSM): UKUT 296 (AAC). In this case, most of the principles which are used today can be found e.g. that Child Benefit is not the deciding factor, that care by proxy can be considerd but most importantly that shared care and day to day care are different and this difference is the clear intention of Parliament.
The JS case also highlights two other cases and the only one of them relating to the current 2012 scheme also involved our senior partner, Mike Smith successfully representing one of the parties. Since this case, Durham Legal Services have gone on to successfully represent many other parents regarding their involvement with Regulation 50.
To be successful with a 50/50 day to day care case which is contested by the other parent will be very difficult without representation. At appeal, the Tribunal will look at a number of things such as mental attitude towards the child; decisions about the child's health and welfare; decision-making about the child; decisions about the necessities of life; decisions about control and protection, all of these areas are very complex and using our experience of what is asked at Tribunal hearings on these cases, we have developed our own successful system of helping to put the right evidence forward.
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