A ‘child maintenance top-up order’ is a document issued by the family courts that requires a parent to pay additional child maintenance on top of the amount calculated by the Child Maintenance Service (CMS). Such orders tend to be issued by the courts if the paying parent’s gross income is over the CMS’s maximum limit of £3,000 (gross) per week (equivalent to £156,000 per year).
If a parent’s income exceeds this limit, the court must consider the factors set out in Schedule 1 to the Children Act 1989 when deciding whether to make a top-up order. These include:
- The financial needs of the child
- The income, earning capacity, property, and other financial resources of each parent
- Any physical or mental disability of the child
- The standard of living enjoyed by the child and their family before the parents separated
- The manner in which the child is being or is expected to be educated or trained, and
- The financial needs, obligations, and responsibilities of each parent.
When assessing whether income exceeds the CMS cap and what level of additional maintenance is appropriate, the court will look at the paying parent’s total income from all sources, including:
- Salary and wages.
- Self-employment profits.
- Bonuses, commissions, and overtime.
- Dividends and investment income.
- Royalties and intellectual property income.
- Overseas income taxable in the UK.
For example, if a paying parent earns £350,000 gross per year, the Child Maintenance Service (CMS) will only calculate maintenance based on the first £156,000 of that income. This can result in a disproportionately low payment relative to the parent’s actual financial capacity. Where the CMS assessment does not adequately meet the child’s reasonable needs, such as private school fees or a standard of living consistent with the parent’s wealth, the receiving parent may apply to the court for a top-up order to bridge the gap.
A top-up child maintenance order is typically made only after the Child Maintenance Service has carried out a maintenance calculation and confirmed that the paying parent’s income exceeds the statutory cap. The court’s jurisdiction arises at that point, and the CMS process cannot be bypassed.
How is child maintenance top-up calculated?
Child maintenance top-up is not calculated using a fixed formula, as CMS maintenance is. The court has a wide discretion to determine the appropriate level of additional maintenance when the paying parent’s income exceeds the statutory cap. It is not bound by any single formula or approach.
In general terms, the court’s approach will involve:
- Examining the paying parent’s income above the CMS threshold.
- Assessing the child’s needs, lifestyle, and what the parental resources can reasonably support.
- Exercising judicial discretion to arrive at an appropriate additional amount.
The Adjusted Formula Methodology
The Adjusted Formula Methodology from James v Seymour [2023] EWHC 844 (Fam) has become an increasingly used reference point in top-up cases. The methodology is designed to give a ‘Child Support Starting Point’ (CSSP), which serves as a baseline figure to guide the court or the parties towards a settlement.
When using the Adjusted Formula Methodology, the courts will complete the following steps:
- Step 1: Identify the paying parent’s gross income – typically from the paying parent’s most recent P60 or tax return
- Step 2: Calculate ‘exigible income’ – This means adjusting the gross income figure by applying a percentage reduction for any children living in the paying parent’s own household (11% for one child, 14% for two children, 16% for three or more), deducting pension contributions currently being paid, and deducting any school fees (divided by 0.55 to reflect that fees are paid from post-tax income).
- Step 3: If exigible income is £156,000 or less – apply the CMS standard formula to the full amount of exigible income (subject to any shared care reduction).
- Step 4: If exigible income is between £156,000 and £650,000 – apply the CMS formula to the first £156,000 of exigible income, then apply a lower tariff rate to the balance above £156,000: 2.4% for one qualifying child; 3% for two or three qualifying children.
- Step 5: Account for shared care – apply a reduction to reflect the number of nights the child spends with the paying parent
- Step 6: Arrive at the Child Support Starting Point (CSSP) – the combined figure produces the CSSP; the amount the court uses as its starting point when determining how much top-up child maintenance to order above the CMS cap. The CSSP is a “loose starting point” only. The court can depart from it upward or downward where there is a reason to do so.
It is important to note that the Adjusted Formula Methodology remains a subject of debate in UK family law. Many family lawyers argue that it risks turning what is (and should remain) a discretionary, needs-based assessment into a formulaic exercise without legislative authority. Critics point out that rigidly applying a formula may fail to reflect the child’s actual needs, particularly in cases involving significant additional costs such as private school fees, medical expenses, or the need to maintain a certain standard of living.
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