The judgment of Holman J in Dickson v Rennie [2015] 2 FLR 978 records that at the final hearing of the mother’s Schedule 1 application in June/July 2007 District Judge Walker had ordered inter alia long-term periodical payments for the child of £41,200 pa (or £3,433 pm) index-linked. As the judge recorded in her judgment, both parties had accepted that the court had jurisdiction to make an order for child periodical payments. So, as Holman J noted, those acting for the father did not take a point at that time that the jurisdiction of the court to make child periodical payments was excluded by the relevant provisions of the CSA 1991. In December 2010 the father applied for the child periodical payments to be varied downwards but in July 2012 he consented to this being dismissed with costs.

By the time of the hearing before Holman J in December 2014 the child periodical payments order, if it had remained in force, would have been £48,108 pa (or £4,009 pm). However, in March 2014 the father had applied to the CMS for an assessment. As at 7 October 2014 the CMS assessed the father’s income to be £20,045 pa (£385.48 pw) gross. Whereas District Judge Walker had taken a global view of the father’s worldwide assets and income, the CMS took as the data for their assessment the contents of the father’s UK tax returns leading to a calculation based solely upon that relatively small part of his income and assets which (he said) was his remuneration from a company registered and located in the jurisdiction. On the basis of this assessed income and taking into account the number of nights a year that the child spent with her father, the child maintenance assessed to be due and payable was £1,375 pa (or £26.43 pw).

As Holman J noted at [23], s 8(1) applies ‘in any case where the Secretary of State would have jurisdiction to make a maintenance calculation’ and s 8(3) states that (subject to an exception which did not apply to this case) where s 8(1) applies ‘no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order’. Therefore the Secretary of State would have had jurisdiction to make a maintenance calculation back in 2007 so that the jurisdiction of the court, even then, was excluded but this was not the way in which the case proceeded before the District Judge.

At [24] Holman J then referred to one of the exceptions to the above exclusion namely that set out at s 8(6) (the so-called ‘top-up’ jurisdiction):

‘(6) 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 gross weekly income exceeds the figure referred to … [now in certain regulations]; 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.’

At [27] Holman J stated that the question/issue that arises ‘is as to how the non-resident parent’s gross weekly income falls to be determined for the purposes of subs (6)(b)’ and whether determination of the ‘gross weekly income’ for the purposes of s 8(6)(b) ‘falls upon the court or falls upon the Secretary of State and the CMS’. He noted that this was a point upon which there was no decided authority. He recorded the ‘conventional’ view always to have been that the ‘top up’ jurisdiction could only be triggered when the Secretary of State or the CMS had already made a maximum maintenance calculation (i.e. £294 pw or £15,288 pa) reflective of a gross weekly income as being or exceeding £3,000. In support of this, Holman J referred to the authors and editors of Child’s Pay and Rayden and Jackson on Divorce and Family Matters as all taking the view ‘that a top up can only be applied for when “the maximum liability” has been reached’.

At [29] Holman J referred to the mother’s submissions in support of the argument that determination was a matter for the court namely that s 8(6) was a ‘stand-alone jurisdiction’ and correctly stating ‘that normally it is the power, duty and function of a court to reach its own determination and decision as to whether or not it has “jurisdiction” in some matter’.

The judge then stated that this argument gained ‘considerable force’ from the obiter observations of Charles J in CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2011] 1 FLR 208 at [4]:

‘The premise for that stance was and is that, unless and until the Commission make a maximum assessment, the court’s power to order “top up” periodical payments pursuant to section 8(6) Child Support Act 1991 is not engaged. I queried this, because it is not what section 8(6) expressly provides, and I was referred to [certain authorities]. It seemed to me arguable that the court could determine the issue of fact that is part of the trigger to its jurisdiction set by section 8(6)(b), namely whether the father has a net weekly income in excess of the figure set in regulations …’

As Holman J then observed, although he considered the point to be ‘arguable’, Charles J went on at [5] to state that the point had not been raised nor, therefore, considered by counsel in advance of the hearing, and so he had concluded that the point could not be fairly pursued on the appeal that was before him (which concerned the question of whether or not a lump sum order could be made (notwithstanding the existence of a CSA/CMS assessment) essentially for the provision of funding legal proceedings in CA 1989 Schedule 1 proceedings).

At [30] Holman J concluded as follows:

‘Although I absolutely accept the view of that distinguished judge that the point is “arguable”, I am absolutely clear that the point is not in the end a good or correct one. It is perfectly true that, as Charles J observed, s 8(6)(b) of the 1991 Act does not include any express words within it to the effect that the gross weekly income “as calculated [or assessed] by” the Secretary of State or the Child Support Agency/CMS exceeds the relevant figure. Section 8(6)(b) merely refers in the abstract to what is essentially a question of fact, namely, as a matter of fact that the gross weekly income does exceed the specified figure. But it seems to me crystal clear from the scheme of the Act as a whole, and s 8(6) within it, that even although the question may be said to go to the jurisdiction of the court, to make a top-up order the relevant “gross weekly income” for the purposes of s 8(6)(b) has to be the gross weekly income that has been assessed or calculated by the Secretary of State or the CMS. Quite clearly that subsection is, indeed, providing a “top-up” jurisdiction; it is not providing some avenue of challenge or appeal to the calculation or assessment that has earlier been performed by the Secretary of State or the CMS.’

And at [31]:

‘There is simply nothing at all in the legislation which enables or permits any kind of challenge or appeal (absent judicial review) into the court system from the calculation or assessment that has been made by the CMS in any case or situation in which it is not arguable that the gross weekly income does, or may, exceed £3,000. It would be completely adventitious if s 8(6) of the 1991 Act provided some avenue of challenge or appeal in the relatively small number of cases in which the gross weekly income happens arguably to exceed £3,000; and, in my view, it is manifestly not the purpose of s 8(6) to provide that. Thus, on the facts of the present case, the mother strenuously disputes that the true level of gross weekly income of the father is £385 or anything remotely like it. But Miss Potter accepts that, whether it is that figure, or £500, £1,000, £1,500, £2,000, or £2,500, in none of those circumstances can there be any resort to the court by way of appeal or challenge to the calculation made by the CMS. Patently s 8(6) is not intended to provide some form of disguised “appeal” just because it is, or may be, arguable, or even demonstrable, that his gross weekly income exceeds £3,000. For those reasons, notwithstanding the obiter observations of Charles J which I have quoted, it is my very clear and firm view, and I so hold, that the top-up jurisdiction under s 8(6) is not available unless the CMS have themselves assessed the gross weekly income as being or exceeding £3,000 per week, or (which comes to the same thing) have made a maximum maintenance calculation, currently in the sum of £294 a week or £15,288 pa.’

In TW v TM (Minors) (Child Maintenance: Jurisdiction and Departure from Formula) [2016] 2 FLR 1386 Mostyn J stated at [3] that Dickson v Rennie decided that the court has no power to make a contested order unless there has been an antecedent maximum assessment. He then stated that by contrast consent orders could be validly made under CSA 1991 s 8(5)(b) by which the court is empowered to make a maintenance order which is in all material respects in the same terms as a prior agreement and referred to V v V (Child Maintenance) [2001] 2 FLR 799 where Wilson J (as he then was) decided that it was perfectly acceptable for a court to conflate the requirement of a prior agreement and the making of the order into one exercise.

At the heart of Holman J’s decision was a view that if the court could determine the question of fact as to whether the non-resident’s parent’s income exceeded £3,000 pw, when an assessment based on a lower figure was in force, then this would not be providing a ‘top-up’ jurisdiction. Instead, it would provide an avenue of challenge or appeal to the calculation or assessment that had earlier been performed by the Secretary of State or the CMS. Therefore, if it were not permissible for there to be such a challenge to such a calculation or assessment where it was not arguable that the income exceeded £3,000, it would be adventitious if there was some avenue of challenge or appeal in cases in which it was arguable that the gross weekly income figure happened to exceed £3,000.

However, as Charles J observed – and Holman J accepted – the position is arguable. This it is not what s 8(6) expressly provides: the sub-section does not include any words within it to the effect that the gross weekly income ‘as calculated [or assessed] by’ the Secretary of State or the CMS exceeds the relevant figure. Section 8(6)(b) merely refers in the abstract to what is essentially a question of fact in establishing jurisdiction and such a question is normally a matter for a court. To say that a court is unable to assess a party’s gross weekly income figure having been provided (say) payslips or tax returns or even evidence of lifestyle is evidently a nonsense. Courts do precisely that exercise every day.

So, is the issue settled? It is sometimes overlooked that in AB v CD (Jurisdiction Global Maintenance Orders) [2018] 2 FLR 150 Roberts J, in holding that a ‘global’ order for periodical payments (where the husband had been ordered by His Honour Judge Everall QC to pay £39,000 pa in global maintenance for the wife and the children with a corresponding reduction in that sum in the event of a CMS calculation) was jurisdictionally legitimate, observed (at [49]) that the judge had made an (emphasis added) ‘assumption … that the husband’s income crossed the threshold for a maximum assessment both at the time of the final hearing and in all likelihood into the future’. In other words, this was a case where the court and not the CMS had determined the necessary question of fact. However, this was a case where the order made was a so-called ‘Segal’ order and not one under s 8(6) as there was no application then pending with the CMS, far less an assessment, and the judgment in essence follows Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855 in confirming that a Segal order does not per se amount to an impermissible device to circumvent s 8(3) of the 1991 Act.

However, if it is permissible for the court to make such an assumption where there is no CMS assessment in place and it forms part of the court exercising a Segal order jurisdiction, why it is impermissible for the court to make that assumption (or finding) where there is a CMS assessment in place and it forms part of the court exercising its ‘top-up’ jurisdiction? Is it because the assumption is that a maximum assessment is not needed for a Segal order but it is for a ‘top up’ order? Holman J would suggest that, with the latter, for the court to make such a finding is tantamount to an impermissible challenge or back-door appeal – but is this right where the statute does not expressly state that the assessment is one for the Secretary of State or the CMS exclusively to undertake?

That leaves the door open to questions of unfairness: children of unmarried parents required to bring applications under CA 1989 Schedule 1 rather than the MCA 1973 are left without the benefit of the court choosing to exercise its discretion in making a Segal order and if their parents do not agree to lodge a consent order they are also not aided by the possibility of V v V (Child Maintenance) jurisdiction. While parents have a choice to marry or to remain unmarried, to work together or litigate furiously, their children have no such choice.