Hayley Trim's Analysis: Pre-pay and top-up - a wider Schedule 1 jurisdiction?

23 July 2010

Pre-pay and top-up - a wider Schedule 1 jurisdiction?

Charles J recently gave judgment in CF v KM [2010] EWHC 1754 (fam). He held that the court had jurisdiction to make a lump sum order towards the mother's costs of both her Schedule 1 claim and Section 8 proceedings before and otherwise than on a final determination of her Schedule 1 claim. This was in circumstances where the current CSA assessment put the father's income at below the maximum £104,000p/a net and therefore "top-up" periodical payments would not be permitted (although see below). This was the first case to address this particular jurisdictional issue.

The lump sum order made was limited to the judge's own estimate of the mother's future costs because he was not satisfied with her explanation of how she had funded some of her past costs, and her costs going forward were not sufficiently particularised by reference to the work that remained to be done. A note for future cases - perhaps her award would have been greater had more detailed schedules of the costs of future work been provided.

But what particularly struck me about this case were the obiter comments of Charles J concerning the circumstances in which the court can make "top-up" periodical payments orders under s 8(6) Child Support Act 1991.

This provides that:

This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if -

(a)        a maintenance calculation is in force with respect to the child;

(b)        the non-resident parent's net weekly income exceeds the figure referred to in paragraph 10(3) of Schedule 1....; and

(c)        the court is satisfied that the circumstances of the case make it appropriate for the non-resident parent to make or secure the making of periodical payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the maintenance calculation.

Charles J thought it potentially arguable that the non-resident parent's income under s8(6)(b) could be determined by the court, rather than by reference to the existing child support assessment.

This would mean that provided a maintenance calculation is in place, even if that calculation assesses the non-resident parent's income at under the maximum, the court could still review his income and if it concluded that it exceeded £2,000 per week, it could arguably, and subject to s8(6)(c), make an order for periodical payments. 

So for example where the CSA/CMEC has been restrictive in its approach to income, or the maintenance calculation took place some time ago and a review is still in progress, but income over the "top-up" threshold can be demonstrated to the court, the court would not be precluded from making an order for periodical payments.

The point was not fully argued and Charles J did not rule on it in CF v KM. Whether it could be argued successfully if a purposive approach is taken to the legislation remains to be seen, but given the record of the CSA/CMEC, there are bound to be cases where it is worth a try.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

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