H v I : (Child Maintenance)

On an application to vary child maintenance, the original order normally provides the starting point. The applicant must establish a material change in circumstances. The court must consider all the circumstances, with first consideration given to the welfare of the children, and may adopt a proportionate approach ranging from summary dismissal to a complete reassessment.

Highly variable income should generally be assessed over an appropriate medium-term period rather than by reference to a single poor year. Financial resources include valuable shareholdings whose value may be realised. Increased obligations to a new family do not justify reduction where the payer’s overall resources remain sufficient. Enforcement follows where the payer was able to pay but chose different priorities.

The parties were formerly married and had two daughters. A child periodical payments order and provision for school fees were made in 2020 following financial remedy proceedings. The father did not appeal the child maintenance provisions.

The mother applied to enforce arrears, alternatively for top-up maintenance. The father applied to reduce child maintenance and to require the mother to contribute to school fees. He argued that annual CMS reviews, or a telephone application to the CMS, had discharged the 2020 order and that any new assessment should begin afresh. The central issues were whether the order remained in force, the proper approach to variation or reassessment, and whether the father had been unable to pay.

1. Child maintenance order. The mother’s enforcement application was granted and the father was ordered to pay the arrears within 28 days. The father’s downward variation application was refused.
2. The court reached a tentative conclusion that the CMS annual reviews did not constitute a maintenance calculation under sections 4 and 54 of the Child Support Act 1991 and regulation 3(2) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. The father had not established that a fresh application had generated a calculation capable of discharging the 2020 order.
3. An application to vary a periodical payments order requires consideration of all the circumstances, with first consideration given to the welfare of the children. The central question was whether the father had established a material change since 2020 sufficient to justify variation. The original order was a proper starting point, and the court retained flexibility to adopt a proportionate procedure.
4. The father’s income was highly variable. It was more reliable to examine it over three- or five-year periods than to focus on one poor year. His substantial shareholding was also a relevant financial resource. Viewed over the medium to long term, his income and capital had improved rather than deteriorated materially. His increased obligations to his new family did not alter that conclusion.
5. The mother’s capital, the shared-care arrangements and the elder child’s boarding-school attendance did not amount to material changes justifying variation. The original award was not open to collateral challenge because it had not been appealed.
6. For enforcement, the father bore the burden of proving inability to pay. The evidence showed that he could pay the maintenance. Non-payment resulted from his priorities, including repayment of other sums, rather than inability.
7. Alternatively, even if the order had ceased to have effect, the original order would remain the appropriate starting point and a fresh order would have been made retrospectively.