Navigating through the complexities of child maintenance and understanding the legal framework around “top up” orders can be challenging for many parents. This article aims to provide clarity and guidance on this area.

What is Child Maintenance?

Child maintenance is financial support that helps cover a child’s living costs when their parents have separated. It helps to provide for the child’s every day needs such as food and clothing.

The payment is made to the parent who the child lives with majority of the time (“the receiving parent”) by the parent the child lives with the least (“the paying parent”). If a child does not spend any nights with one parent, that parent is still required to pay child maintenance. If the child spends an equal amount of time with both parents, then no child maintenance is payable.

Child maintenance is payable for any child under 16 or under 20 if they are in full time education.

How is Child Maintenance calculated?

The Child Maintenance Service has jurisdiction to deal with child maintenance payments if the paying parents earns up to £156,000 gross per annum/£3,000 gross per week. You cannot use the Child Maintenance Service if the paying parent lives abroad, the exception to this is if they are working abroad for certain British organisations, such as the civil service or the armed forces.
There is no obligation on parents to use the Child Maintenance Service and they can reach an agreement voluntarily; however, it is useful to have a calculation even if you do not wish to proceed with the Child Maintenance Service as an indication of what should be paid. The Child Maintenance Service is also useful if you do not want the paying parent to know your location or any personal information.

The Child Maintenance Service uses a formula that considers various factors including the paying parent’s income, how many children they have to support and the number of nights the child(ren) spends with them. You can see what you are likely to receive or have to pay by using the following calculator – https://www.gov.uk/calculate-child-maintenance.

What are Top Up Orders?

Top up orders come into play when the paying parent’s income exceeds the Child Maintenance Service threshold of £156,000 gross per annum/£3,000 gross per week. In these circumstances a “top up” order can be applied for. A “top up” order is an additional amount the court can order a high-income parent to pay over and above the standard Child Maintenance Service calculation to ensure the child(ren’s) needs are adequately met.

A parent can consider applying for a top-up order when they believe that the standard child maintenance payments are not sufficient to cover the child’s needs, especially if those needs include extraordinary expenses like private schooling, specialised medical care, or extracurricular activities that go beyond the basics.

A top up order is not automatic and must be applied for through the court. Before applying to court, a maximum assessment must first have been carried out by the Child Maintenance Service.

How is Top Up Child Maintenance payment calculated?

Historically it was widely considered by Mostyn J that the starting point to calculate a “top up” award was to simply apply the same formula used by the Child Maintenance Service to the paying parent’s income over £156,000 and up to £650,000 gross per annum. However, his approach has been criticised because: (i) it produces particularly high figures in cases with multiple children and (ii) the awards made when applying the formula, particularly to high incomes were often well in excess of awards made by the courts in cases where the Child Maintenance Service did not have jurisdiction.

With these considerations in mind in James v Seymour [2023] Mostyn J devised what he termed an Adjust Formula Methodology (or AFM) to produce a Child Support Starting Point for paying parents who earn over £156,000 up to £650,000 gross per annum. The AFM differs from the Child Maintenance Service formula as it allows for deductions of school fees and extras. Mostyn J highlighted the AFM formula will not be relevant where; there are four or more children, a payer parent’s gross income is more than £650,000, the paying parent’s income is largely unearned, or the paying parent has no income or lives on capital.

The AFM can be worked out as follows:

• Step 1: Identify the paying parents gross income.

• Step 2: Reduce the gross income by the number of child(ren) living in the paying parent’s household – this is 11% for one child, 14% for two children or 16% for three children.

• Step 3: Deduct the amount of pension contributions.

• Step 4: Gross up school fees paid by the paying parent by the amount of income tax paid by the paying parent and deduct these and any extras to produce the paying parent’s “exigible income”. School fees are grossed up by taking the figure paid for the school fees and dividing it by 0.55.

• Step 5: Apply the Child Maintenance Service formula to the first £3,000 of the paying parent’s weekly income. For the first £800 apply 12% for one child, 16% for two children and 19% for three children. For the remaining income apply 9% for one child, 12% for two and 15% for three.

• Step 6 : The AFM is then calculated by applying a tariff by multiplying 2.4% for a single child and 3% for each of two or three children to the remaining income.

• Step 7 : Deduct the amount to the number of nights the child(ren) spends with the paying parent as follows:

There is no obligation on courts to apply the AFM as Mostyn J describes it as being designed to produce a “loose starting point which a decision maker can summarily choose to accept or reject without fear of appellate review”. James v Seymour is a relatively recent decision and there is limited commentary on the judgment, but the initial response appears to be welcomed. Before applying for a “top up”, the Child Maintenance Service formula and the AFM should be applied to the paying parent’s gross income to assess whether it is beneficial to apply for a “top up”. Those who earn over £650,000 gross per annum remain subject to greater discretionary powers.

How can we help?

Given the complexity of child maintenance and the nuances of “top up” orders, seeking legal advice from a family solicitor specialising in these matters is crucial. One of our specialist family solicitors can help provide guidance tailored to your specific situation, help you navigate the legal system, and ensure that the best interests of your child/ren are always at the forefront.

We are passionate about the work do and are committed to provide exceptional client service to get you the best possible outcome in often stressful circumstances. Our family lawyers provide a kind and empathetic approach by listening to and understanding our client’s needs, and we offer straight forward and clear advice.
Contact us on 020 3440 8000 or A_FamilyReferrals@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.