Just within bounds: global maintenance orders and child support

Divorce|December 11th 2017

For better or for worse, the Child Support Act 1991 removed from the courts the power in most cases to make child maintenance orders. Now such orders can essentially only be made to give effect to a child maintenance agreement between the parents, or to ‘top-up’ a child support assessment made by the Child Support Agency (CSA), or its successor, the Child Maintenance Service (CMS), where the paying parent’s income exceeds the maximum taken into account by the child support scheme. (Note that, for the sake of clarity, I am using the term ‘child maintenance’ to refer to court orders, and the term ‘child support’ to refer to assessments by the CSA/CMS).

All of which would mean, one would think, that where child maintenance has not been agreed and no child support assessment has been made, the court cannot make a child maintenance order save, perhaps, as a temporary measure until such time as a child support assessment is made. Whilst that is technically true, there is something that the court can do: make a ‘global maintenance order’, requiring maintenance to be paid to the child-caring spouse for their benefit, and for the benefit of the child/children.

Isn’t such an order contrary to the rule that the courts can’t make child maintenance orders when the CSA/CMS has jurisdiction? Well, no, it is “just within the bounds of legitimacy”, to use the phrase used by Lord Justice Thorpe in the year 2000 to describe such orders. That this is so was confirmed last week by Mrs Justice Roberts, in the High Court case AB v CD (Jurisdiction Global Maintenance Orders).

The case concerned an appeal by a husband against a global maintenance order. The order specified that he should pay the global sum of £39,000 per annum to the wife “for the benefit of herself and the children of the family”, with a corresponding reduction in that sum in the event of a future child support assessment. The primary ground for the appeal was that the order was effectively an order for child maintenance and, in accordance with the provisions of the Child Support Act, the judge did not have jurisdiction to make such an order, at least in respect of two of the children – the other child being in receipt of disability allowance, which is an exceptional case when the court does have jurisdiction to make a maintenance order in relation to that child.

As I have indicated, Mrs Justice Roberts did not agree. This global maintenance order did not contravene the Child Support Act, she said, for the following reasons:

  1. This was technically a spousal maintenance order, as it was clearly intended by the judge to include a substantial element of spousal support (although the judge did not specify how much was for spousal support and how much was for the benefit of the children), and of course the court still has jurisdiction to make such orders.
  2. The order did not challenge or seek to oust the jurisdiction of the CSA/CMS: there is no reason why a child support assessment could not be made after the global maintenance order was made and, indeed, this global maintenance order specifically envisaged the possibility of a subsequent child support assessment. All the order was doing, as Lord Justice Thorpe said back in 2000, was holding the position until such time as the CSA/CMS can carry out its proper function (if indeed it is called upon to do so by either parent).
  3. Global maintenance orders have been used by practitioners and accepted by the courts for more than twenty years. Indeed, there is a global maintenance order included in the Standard Financial and Enforcement Orders recently promulgated for use by the President of the Family Division, Sir James Munby, which is framed in very similar terms to the order in this case.
  4. The judge was clearly aware that the husband’s income was, and would for the foreseeable future be above the amount for a maximum child support assessment. All the court was doing in making a global maintenance order was ‘sorting things out in advance’, thereby avoiding the need for the parties to come back for a ’top-up’ order, after a child support assessment has been made.

For my own part, whilst I can see the utility of such orders I am not entirely convinced that they accord with the intention of the Child Support Act. Still, in view of the corresponding reduction in the event of a subsequent child support assessment, and the court’s jurisdiction in any event to make a ‘top-up’ order, it may well be that the end result in such cases is not that different from what it would have been if the global order could not have been made.

You can read the full report of the case here.

Image by Anssi Koskinen via Flickr under a Creative Commons licence

Author: Stowe Family Law

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