TW & TM (Minors), Re

When a court makes a child-maintenance order under Schedule 1 to the Children Act 1989, the statutory child-support formula is ordinarily the starting point, including where income exceeds the formula maximum. Departure requires a good reason, clearly identified and supported by the evidence. The formula is not conclusive, but substantial departures require correspondingly substantial findings about other financial resources and lifestyle. A valid consent maintenance order may be varied even where the jurisdictional requirements for an originating contested order were absent. A quantified arrears order under Schedule 1 does not attract interest merely because it is expressed to carry interest.

The father appealed against two orders made by a deputy district judge under Schedule 1 to the Children Act 1989, varying earlier consent orders for maintenance of his two children. The appeal concerned jurisdiction, the level of periodical payments, and the imposition of interest on quantified arrears.

The father was temporarily out of contract as a professional footballer. The deputy district judge assessed his gross earning capacity at £190,000 per year and ordered payments of £2,500 per month for each child. She also quantified arrears, charged them on property interests, and ordered interest at 8 per cent. The central issues were whether the orders could be varied, whether the maintenance award departed impermissibly from the statutory formula, and whether interest was legally available.

1. Jurisdiction. The appeal on jurisdiction was dismissed. Dickson v Rennie [2014] EWHC 4306 (Fam) concerned an originating contested order requiring a prior maximum maintenance calculation under section 8(6) of the Child Support Act 1981. The present orders varied valid earlier consent orders. Section 8(5)(b) therefore empowered the court to make an order in materially the same terms as the prior agreement. The approach in V v V (Child Maintenance: Periodical Payments) [2001] 2 FLR 799, permitting the agreement and order to be made in one exercise where the order records consent, was applied.
2. Maintenance. The orders for periodical payments were set aside and the issue was remitted to the deputy district judge. The formula under the child-support legislation should ordinarily be the starting point for a court determining maintenance. This promotes consistency, predictability and accessibility, and avoids futile orders which may be displaced by a later statutory calculation. The formula applies even where income exceeds the statutory maximum. Departure may be justified, but the court must identify a good reason. A departure producing payments more than twice the formula rate required substantially fuller findings about the father’s other resources and lifestyle than had been made.
3. Remittal and interim orders. The appellate court could not exercise the discretion afresh because the deputy district judge had heard oral evidence and considered documentary material that was unavailable on appeal. Interim payments of £1,266 per month per child were substituted from 1 September 2015 pending reconsideration on current evidence.
4. Interest. The order for 8 per cent interest on the quantified arrears was revoked as ultra vires. The arrears were not a lump-sum order within section 23(6) of the Matrimonial Causes Act 1973 or paragraph 1(2)(c) of Schedule 1 to the Children Act 1989. The quantified arrears remained in force.

• High Court (Family Division): appeal from orders made by DDJ Drew in the Central Family Court on 19 May 2015. The jurisdiction ground was dismissed. The maintenance issue was remitted, interim orders were substituted, and the interest provision was revoked.