As discussed in part one, the topic of child maintenance is often the cause of much confusion, we considered the statutory scheme and its potential pitfalls. See part one of this article here. In part two, the focus is on the court’s approach where the statutory scheme does not apply.
When can the court make an order for child maintenance
It is important to first consider whether the court can make an order. The child maintenance service ("CMS"), and not the court, has jurisdiction to make an assessment of child maintenance when the child concerned (referred to in the legislation as a "qualifying child"), the parent with care ("PWC") and the non-resident parent ("NRP") are all habitually resident in the UK (s 44(1) of the Child Support Act 1991 ("CSA 1991")).
However, there are some circumstances in which the court can still make an order for child maintenance. The most common are:
Where the CMS does not have jurisdiction
If the child or one of the parents is not habitually resident in the UK, the CMS will not have jurisdiction (s 44, CSA 1991) and therefore the court is able to make orders for child maintenance. The caveat to this is that there are some limited circumstances where the NRP is not habitually resident here, but it still falls within the child maintenance scheme – for example, where they are employed by the civil service, are a member of the military or employed by a company registered under the Companies Act.
Where the parties agree
The court does have jurisdiction to make an order for child maintenance in terms agreed by the parties. It is not sufficient for the parties to agree that the court should adjudicate child maintenance; they must have agreed the terms. The court can only make an order that is, in all material respects, in the same terms as the agreement reached by the parties (s 8(5)(b), CSA 1991).
However, this is only effective for a limited period of 12 months; either party can apply for a CMS assessment after 12 months, beginning with the date of the order (s 4(10)(aa), CSA 1991).
Where there has been a maximum assessment
Where there has been a maximum CMS assessment, the court can make an order to "top up" the child maintenance (see s 8(6), CSA 1991). It is not sufficient for a maintenance calculation to have been carried out, it must be a maximum assessment (Dickson v Rennie [20141 EWHC 4306, [20151 2 FLR 978).
For this reason, where a top up order is required, an application for an assessment should be made to the CMS as soon as possible, even if it appears obvious that the NRP’s income will exceed the maximum.
This does not prevent the application being made before the maximum assessment is made, and so it is possible to make an application for a top up whilst awaiting a maximum assessment, but the court would not be able to adjudicate on the application until the maximum assessment has been made. If necessary, an application to adjourn the claim for top-up maintenance can be made to allow for the maximum assessment. The timing of the application may have a significant impact, as the court has the power to backdate a top up order to six months before the application (H v C [20091 EWHC 1527 (Fam), [20091 2 FLR 1540.)
Where the order is for educational expenses or costs associated with a disability
Pursuant to ss 8(7) and 8(8) of the CSA 1991, the court retains jurisdiction to make school fees orders and to make orders associated with a child’s disability.
How does the court approach quantum of child maintenance?
The court has a duty to carry out a discretionary balancing exercise pursuant to section 25 of the Matrimonial Causes Act 1973 ("MCA 1973") or Sch 1 of the Children Act 1989 ("CA 1989") in order to determine the appropriate level of child maintenance. Child maintenance claims must be founded on a budget, which the court will consider carefully. However, recent case law has helpfully provided additional guidance on how overall quantum might be determined.
In the recent case of Collardeau-Fuchs v Fuchs [20221 EWFC 135, Mostyn J described the approach to be taken in cases where the child maintenance claim is front and centre (such as under Sch 1 or if there is no spousal maintenance claim) as opposed to a claim for child maintenance which is subsidiary to claims made by a spouse.
In these circumstances, a Household Expenditure Child Support Award ("HECSA") should be made by the court which extends beyond the direct expenses of the child(ren) and can additionally meet the expenses of the PWC’s household. Whilst Mostyn J was clear that a HECSA could not meet expenses which were directly personal to the PWC and had no reference to their role as carer of the child(ren), a HECSA could include provision for, by way of example, designer clothing, on the basis that those expenses were connected to the role of carer. When assessing an application for a HECSA, the court should consider the reasonable level of the PWC’s household expenses not only by reference to the present standard of living of the NRP but also (if applicable) to the standard of living enjoyed by the family prior to the breakdown of the relationship. The object of the court is not to replicate that standard but to ensure the child’s circumstances bear some sort of relationship to them.
The HECSA should ensure that the PWC is not burdened with unnecessary financial anxiety. When assessing the PWC’s budget, the court should "paint with a broad brush", and look to achieve a fair and realistic outcome in the circumstances of each case.
Adjusted formula cases
The court has long grappled with cases where the child maintenance claim is subsidiary to the main spousal claim, but where the income of the NRP exceeds the maximum for the purposes of the CMS formula.
In TW v TM (Minors) (Child Maintenance: Jurisdiction and Departure from Formula) [20151 EWHC 3054 (Fam), [20161 2 FLR 1386 Mostyn J expressed the view that, even where a NRPs income exceeds the statutory ceiling, the formula adopted by the CMS continued to provide useful guidance for judges when quantifying child maintenance. In CB v KB (Financial Remedies: Calculation of Income Streams and Child Support) [20191 EWFC 78, [20201 1 FLR 795, Mostyn J went further and suggested that the formula should be applied for incomes up to £650,000.
However, there was criticism of this approach, in particular from Moor J in CMX v EJX [20221 EWFC 136, who pointed to the high headline figures that were produced by adopting the formula in higher income cases.
In the very recent case of James v Seymour [20231 EWHC 844 (Fam), Mostyn J addresses this criticism and, by way of an appendix, sets out an Adjusted Formula Methodology ("AFM") for use by judges to give them a Child Support Starting Point ("CSSP"). Once they have this starting point, they can consider whether any adjustment is necessary having considered the relevant budget.
The AFM adopts the same principles as the CMS formula, but mindful of the criticisms made by Moor J, makes adjustments to the formula to reduce the overall level of quantum in the cases where income is at its highest.
Mostyn J is clear that the AFM should not be adopted for cases where the NRP’s income is more than £650,000 or where there are four or more children, or where the application is to vary child maintenance.
As demonstrated, dealing with applications for child maintenance is not straightforward. Particular attention needs to be given to whether the CMS or the court has jurisdiction, the type of support being applied for and the scheme that will apply to determine quantum. Careful thought and consideration at the outset will ensure that these applications start off on the right foot.
Please note this content was originally published in the Family Law Journal July 2023 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2023