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Child Maintenance for High Earners – Going Beyond the Formula

This is the second part of my analysis of Mr Justice Mostyn’s decision in the appeal of TW and TM (minors), part one of which can be found here (Child Maintenance Orders made in Court).

The second ground of appeal related to the amount of maintenance which the father was ordered to pay for the children. By way of brief reminder, the judge at first instance varied orders in relation to child maintenance for the father’s two children, requiring him to pay £2,500 per month per child, a total of £60,000 of maintenance per year. The father’s income was found to be £190,000 and so this order represented 31.6% of the father’s gross income.

Mr Justice Mostyn started from the decision in an earlier case he decided called GW v RW [2003] 2 FLR 108, where he stated that the starting point for the court in deciding child maintenance is the statutory formula. He then went on in that case to award more than the sum equivalent to the statutory maximum on the basis that the father earned much more than the statutory child maintenance income threshold.

He reaffirmed the principle where he stated in TW and TM (Minors) as follows:

“There are at least two reasons why this principle should be maintained and reaffirmed. The first is this. It would be an example of arbitrary law-making if the computation of child maintenance were radically different depending on whether it was done by the secretary of state under the 1999 Act or whether it was done by a court under sch.1 of the Children Act or s.23 of the Matrimonial Causes Act. Consistency of approach is obviously desirable in order to satisfy the need for the law, particularly in these days when so many people are unrepresented, to be predictable and accessible. Arbitrariness is to be avoided wherever possible. However, there is a second very important reason which is that once an order has been in force for a year then pursuant to s.4(10)(aa) of the 1991 Act either parent may apply for a maintenance calculation. If the maintenance calculation is made then by virtue of s.10(1)(a) of the Act and reg.3(2) and (3) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992, SI 1992 No.2645 the order, upon the making of a fresh calculation, shall cease to have effect; and that would include an earlier order made for top-up under s.8(6) of the Act, it being provided that in reg.3(3) that the only orders that remain untouched by the making of a fresh calculation are orders made under s.8(7) or (8) of the Act which are orders that provide for child support for school fees or to meet disability expenses.

It follows that in May of next year in this case it will be open for the father to apply for a calculation and on the making of the calculation this order will cease to have effect for all time and be incapable of revival. If the calculation is made on a maximum income basis then it will be open to the mothers to apply for fresh top-up orders under s.8(6). Bearing in mind that the father’s income now, he being out of contract, is on any view less than it was when the deputy district judge heard the case; and given what I heard about him being offered a lower rate of contract than he had hitherto, it must be anticipated that any calculation made in this case after May 2016 would not be a maximum calculation, with the result that the mothers would be unable to approach the court for a top-up under s.8(6). That, in my view, is another very good reason why the principle in GW v RW should be reaffirmed. It would be an exercise in futility for orders very much in excess of the formula laid down by Parliament to be made if it was open to the paying father to have the orders abrogated in the way I have described after they have been in force for a year.”

Mr Justice Mostyn notes that the order awarded was 31.5% of the father’s gross income, that being more than twice the 13.05% prescribed by the statutory maximum formula. In the absence of justification for departure from the formula, the judge amended the award to being more in line with the formula and encouraged the parties to sensibly discuss the position for a final order.