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A Court of Appeal judgment handed down on 21st October 2026 has clarified an important issue: a Child Maintenance Service (CMS) review cannot, in itself, bring a child maintenance top-up order to an end.
When can a top-up order be made?
A parent can apply for a child maintenance top-up order where the paying parent’s gross income exceeds £3,000 per week.
Under the Child Support Act 1991, the CMS calculates child maintenance using a statutory formula. The court can then consider whether additional payments are appropriate.
Three conditions must be met: there must be a maintenance calculation in place, and the paying parent’s income must exceed the relevant threshold. The court must also be satisfied that a top-up order is justified in the circumstances.
What happened in this case?
The Court of Appeal considered appeals brought by two mothers whose children had the same father, a former professional footballer who had earned around £3 million a year when the original maintenance calculations were made.
In September 2021, the father told the CMS that he was unemployed. In February 2022, the CMS issued a nil assessment, backdated to September 2021. The CMS later revised that assessment on the basis of misrepresentation. Following an appeal, the First-tier Tribunal upheld a recalculation assessing the father’s annual income at between £220,000 and £240,000 which is well above the £3,000-a-week threshold.
In both cases, maintenance calculations were in place, and the court had previously determined that additional payments were appropriate. The father argued that the CMS review in September 2021 had brought the existing top-up orders to an end. His argument relied on a narrow interpretation of the relevant legislation.
What did the Court of Appeal decide?
The Court of Appeal rejected the argument that an administrative review by the CMS could bring a court-ordered top-up arrangement to an end.
The judgment clarified several important points:
- One continuing maintenance calculation: A CMS review may change the amount payable, but it does not create a new maintenance calculation capable of ending a top-up order.
- Reviews do not end calculations: The legislation identifies specific events that bring a maintenance calculation to an end. Neither a review nor an adjustment to the amount payable is one of them.
- Protection against repeated litigation: If every review or payment adjustment ended a maintenance calculation, top-up orders could be challenged or brought to an end each year, potentially leading to unnecessary and repeated court proceedings.
- The court retains control: The court retains jurisdiction over the top-up order. If a variation is needed, an application must be made to the court.
What happens next?
The two mothers’ applications have been referred back to the original court, which will determine the amounts payable and how the arrears should be paid.
The decision provides important clarity for parents who have court-ordered top-up arrangements. A change in a CMS assessment does not automatically cancel a top-up order. Where a change to the order is sought, the appropriate route is an application to the court.
Need advice about child maintenance?
Dealing with the CMS can be challenging for both parents who receive maintenance and those who pay it. Disputes over assessments, reviews, arrears and top-up orders can add further complexity to an already difficult separation.
If you need specialist advice about child maintenance or a court-ordered top-up arrangement, please email me via [email protected] call 01457 860606.
