The case of TW & TM (minors) is an interesting judgement of Mr Justice Mostyn in the High Court, deciding the appeal of a non-resident father against orders for child maintenance in relation to his two children.
There were two substantive points of appeal which were decided. Over the next two posts, I shall set out and discuss each point separately as each is an intricate and important issue in the law surrounding child maintenance.
In terms of setting the scene, the case relates to the orders subject to appeal were made in May 2015. There were two orders because there was a separate order relating to each child who have different mothers. Both orders varied existing orders which were made by consent: the first relating to TW was made on 16 April 2012 and the second relating to TM was made on 19 February 2014. This is an important factor in deciding the first point of the appeal.
The judge at first instance found that the high profile footballer father had income of £190,000 per annum, made up of his basic pay and bonuses for goals scored. She also found that the father was more concerned with his own standard of living than with his financial obligations to the children, which were in arrears.
Her orders were that the father should pay maintenance at the rate of £30,000 per year, per child or £2,500 per month, per child.
The first point of appeal contended by the father was that the judge at first instance did not have the power to make the orders for maintenance that she did because of the principle set out in a case called Dickson v Rennie (which I have discussed in relation to another point in that case here).
Mr Justice Mostyn makes clear in his judgment that this argument fails on the following basis:
- Dickson v Rennie was a case which said that unless the Child Maintenance Service had made a maximum calculation for maintenance first, then the court did not have the power to order ‘top up’ maintenance in contested proceedings in accordance with section 8(6) Child Support Act 1991.
- The orders being appealed here, the May 2015 orders, were not originating orders – they were variations of earlier orders which were made by consent and accordingly were validly made in accordance with section 8(5)(b) Child Support Act 1991.
- Mr Justice Mostyn confirms that where an original order is validly made e.g. by consent, then the court has the power to vary the order as it considers fair on the evidence before it, notwithstanding that the variation is contested. He is clear on this issue, stating at the end of paragraph 3 of his judgment:“There can be no doubt at all that there were in existence valid prior orders capable of variation and the suggestion that the learned deputy district judge did not have jurisdiction to vary her order is legally devoid of any merit.”
- In fact, for good measure Mr Justice Mostyn notes that it is recorded in earlier orders that there was a maximum calculation in existence in relation to TM, in any event.
- This is an interesting point because section 8(5) of the Child Support Act 1991 provides that the court can only make an order where a written agreement exists for periodical payments to or for the benefit of the child and the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.
We therefore have clarity as to the court’s construction of this section to confirm that the court making an order in the terms agreed does not equate to the court only being able to vary its order to the extent that the parties can agree.
The second ground of appeal related to the amount of maintenance ordered which succeeded and which I will address next time.