What happens when Child Maintenance is not enough?

Divorce & Matrimonial Finance

09 May 2024

Child maintenance refers to the financial support which is made by a parent towards a child’s living costs and expenses after the parents separate. It is usually an amount which is paid to the resident parent who cares for the child most of the time.

Applications for statutory child maintenance are dealt with by the Child Maintenance Service (“CMS”). The CMS provides formulas to calculate the appropriate amount to be paid, and the Court’s role is ousted in many situations related to child maintenance. However, one situation where the Court does have jurisdiction is in relation to “top-up orders” for maintenance, which may be ordered where the paying parent’s income exceeds the £156,000 limit under the CMS. This is where child maintenance can become seemingly more complicated.

CMS calculations

The Gov.uk website (Department of Work and Pensions) provides a step-by-step guide on how to work out child maintenance, alongside an online calculator which can be used by imputing the relevant figures and other prescribed information. The starting point is to use the paying parent’s taxable gross income to determine the rate for calculating child support in the case. Certain factors, such as pensions, the number of children the paying parent is responsible for and the number of nights the children spend with the paying parent, will be considered by the CMS when determining the calculation. Once the gross income is determined, this is used to calculate the paying parent’s gross weekly income, which will then determine the rate of child maintenance to be paid. Under each rate bracket, the paying parent will be obliged to pay a certain percentage of their gross weekly income, depending upon how many children they are paying maintenance for.

When the paying parent has a salary above £156,000

The CMS has a threshold of £156,000 gross per annum / £3000 gross per week for calculating child maintenance. When the paying parent has an income above this limit, the payable amount is capped meaning that a fraction of their income is not accounted for in the calculations. The receiving parent may believe that this results in an inadequate and / or unfair amount to care for the child. In this situation, the receiving parent may wish to apply for a top-up maintenance order, for additional maintenance to be paid by way of periodical payments.

Section 8(6) of the Children Support Act 1991 provides that the Court can consider making a top-up order provided that the paying parent’s gross income exceeds £156,000 per annum and the CMS has made a maximum maintenance calculation. The relevant law on top-up orders varies depending on the legal relationship between the child’s parents. For children of parents who were party to a marriage or Civil partnership that have applied for a divorce or dissolution, the procedure is set out in the Matrimonial Causes Act 1973 (“MCA 1973”) or the Civil Partnership Act 2004 (“CPA 2004”) respectively. For unmarried parents, the relevant statute is the Children Act 1989 (“CA 1989”).

How much top-up maintenance can be awarded

In deciding whether to make a top-up order and how it is to be quantified, the Court is to carry out a balancing exercise of factors such as the financial resources available to both parents, any other responsibilities that the parents may have, such as their responsibility towards any other children, any disabilities of the subject child and the financial requirements of the child. The appropriate level of child maintenance is up to the Court’s discretion. However, case law has generated guidance on how the Court is to calculate this figure.

In the case of James v Seymour [2023] EWHC 844 (Fam), Mostyn J developed a new formula which includes factors such as the number of children provided for and the number of overnight stays the child has with the non-resident, paying parent.

The formula is called the Adjusted Formula Methodology (“AMF”), which judges can use as a Child Support Starting Point (“CSSP”). It works as follows:

  • the paying party’s eligible income (E) is determined by taking their gross earned income, and applying reductions for the following:
    • the number of children living in the household, in the same way that a reduction would be applied by the CMS
    • deduct any pension contributions, in the same way that a reduction would be applied by the CMS
    • deduct school fees paid for the benefit of the relevant child(ren)
  • the CMS formula is applied to E of £3,000 per week (£156,000 per annum)
  • a further tariff is applied to E of between £156,000 and £650,000 (2.4% for one child, 3% for each of two or three children)
  • finally, an adjustment is made to reflect the number of overnight stays the children have with the paying parent each year in accordance with the CMS formula, (for 52-103 overnight stays with the paying parent, a reduction of 1/7th, 104 – 155: 2/7ths, 156 – 175: 3/7ths, 176 – 183: 50% minus £7 per child per week).

Mostyn J was careful to note that there are cases where the AMF should not be adopted, such as where the income is higher than £650,000, where there are four or more children or for applications to vary child maintenance. The formula is not determinative, but it at least provides a useful starting point to calculate what may be an appropriate amount of top-up maintenance for those with high incomes.

The AFM is a useful tool to determine what amount of top-up maintenance may be ordered by a Court. However, as top-up orders involve a high level of discretion by the Court, it is useful to obtain legal advice to address the specific issues in your case. It is helpful to note that:

  • top-up orders are only available if there has been a maximum assessment of child maintenance. (Dickson v Rennie [2014] EWHC 4306, [2015] 2 FLR 978). An order cannot be made before the maximum assessment, though the application can be made beforehand.
  • the Court can backdate a top-up order to 6 months before the application, H v C [2009] EWHC 1527 (Fam), [2009] 2 FLR 1540.

Cases and resources used:

James v Seymour [2023] EWHC 844 (Fam)

Y v Z [2024] EWFC 4

H v C [2009] EWHC 1527 (Fam), [2009] 2 FLR 1540

Dickson v Rennie [2014] EWHC 4306, [2015] 2 FLR 978

H v C [2009] EWHC 1527 (Fam), [2009] 2 FLR 1540

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