The Calculation Conundrum: Top-Up Maintenance After the Morgan Appeals

A maximum Child Maintenance Service (CMS) maintenance calculation is a condition precedent of a top-up order. But could a subsequent decision by the CMS bring the court’s order to an end? The question has exposed a tension between the court’s limited jurisdiction to make top-up orders and the continuing operation of the statutory child support scheme.

The difficulty arises from the interaction between two provisions of the Child Support Act 1991 (CSA 1991). Section 8(6) permits the court to make a top-up maintenance order where a CMS calculation is already in force, the paying parent’s gross weekly income exceeds £3,000, and the court considers it appropriate to award additional maintenance. Section 10, read with Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (SI 1992/2645) (the 1992 Regulations), reg 3, provides for certain court maintenance orders, including top-up orders, to cease to have effect upon the making of a subsequent maintenance calculation. The question was therefore whether a later CMS revision or supersession constituted a fresh maintenance calculation, with the consequence that an existing top-up order would cease to have effect.

James Pirrie put the problem before practitioners in his August 2025 article for the FRJ Blog.[[1]] After examining some imaginative ways of keeping top-up orders intact, he ended with an invitation: ‘I very much hope that someone will come up with alternative solutions. I am sure our editors will rush to print with them’. It seems that King LJ has now come to his assistance.

In Antoniou v Morgan; Morrell v Morgan [2026] EWCA Civ 1363, handed down on 21 October 2026, the Court of Appeal held that an initial CMS maintenance calculation continues in force notwithstanding later reviews, revisions and supersessions. Those later decisions do not, simply by changing the sum payable, engage s 10 CSA 1991. The judgment resolves the central question of statutory interpretation, although its implications for the wider operation of the child support scheme warrant further consideration.

The statutory difficulty

Section 8(3) CSA 1991 prevents a court from exercising powers it would otherwise have to ‘make, vary or revive’ a maintenance order where the Secretary of State would have jurisdiction to make a maintenance calculation. Section 8(4) expressly reserves the power to revoke. The top-up exception in s 8(6) applies where a calculation is in force, the payer’s gross weekly income exceeds the statutory ceiling (currently £3,000 per week), and the court considers additional payments appropriate. It is the CMS, not the court, which must determine whether the income threshold has been crossed (Dickson v Rennie [2014] EWHC 4306 (Fam)).

Section 10(1), read with the 1992 Regulations, reg 3(2), provides that a prescribed court order ceases to have effect, so far as it relates to periodical payments, from the effective date of a maintenance calculation. Regulation 3(3) protects school fees and disability expenses orders under s 8(7) and (8) CSA 1991. Top-up orders are not expressly included in that protection.

Therein lies the apparent trap. The receiving parent first needs a maximum CMS calculation to obtain a top-up order, but the CMS continues to administer the statutory liability thereafter. If a subsequent revision or supersession amounted to the making of a fresh maintenance calculation, s 10 could bring the top-up order to an end, even where the payer’s income remained above the statutory ceiling.

The possibility had long been recognised. In Re TW & TM (Minors) [2015] EWHC 3054 (Fam) at [7]–[8], Mostyn J observed that a court maintenance order made by consent could be brought to an end by a subsequent CMS calculation, leaving the receiving parent to seek a fresh top-up order if the statutory conditions were met. Those observations were obiter. The appeal concerned the variation of a consent order and the effect of a subsequent CMS decision upon an existing top-up order was not in issue. Professor Nick Wikeley took a similar view of top-up orders in his book, Child Support: Law and Policy: ‘rather unhelpfully, however, any subsequent Agency calculation after the top-up order is made has the effect of discharging the latter order’.[[2]]

The issue arose again in H v I (Child Maintenance) [2024] EWHC 3512 (Fam). Williams J questioned at [50] whether an annual review producing a different maintenance figure might constitute a fresh calculation. The reviews before him had left the amount payable unchanged, and his conclusion at [58] that they did not constitute fresh calculations was expressly tentative. The effect of a supersession decision remained unresolved.

As James Pirrie explored in his article, practitioners had considered various means of protecting top-up orders from subsequent CMS decisions. These included undertakings, closing the CMS case once a maximum calculation had been obtained, and the so-called ‘Christmas order’, comprising successive orders of less than 12 months’ duration intended to prevent a fresh CMS application. None resolved the underlying question of statutory interpretation.

The question for the Court of Appeal was whether a decision made under the statutory machinery for revision or supersession constituted a fresh maintenance calculation for the purposes of s 10. As King LJ noted at [93], that question had not previously received full argument before the courts.

The linked appeals

The appeals arose from separate top-up orders concerning two of Mr Morgan’s children from different relationships. Following his retirement from professional football, the CMS initially reduced his assessed liability to nil. That decision was challenged and the First-tier Tribunal ultimately found that his assessable income remained above the statutory maximum throughout the material period. The mothers respectively sought to enforce arrears. The lower courts reached opposite decisions as to whether their respective top-up orders had survived the intervening CMS decisions. Both appeals were transferred to the Court of Appeal given the dearth of authority on the point.

A calculation, a decision, or both?

Section 54(1) CSA 1991 defines a maintenance calculation as a ‘calculation of maintenance made under this Act’ with express provision for default and interim decisions. It does not expressly confine that definition to an initial decision under s 11. The father argued that it was broad enough to encompass subsequent decisions recalculating liability. The mothers contended that there was only one continuing maintenance calculation, with later decisions serving to revise or supersede it.

Sections 16 and 17 provide the machinery for those later decisions. A revision may take effect retrospectively, whereas a supersession replaces an earlier decision, ordinarily following a change in circumstances. An annual review may result in a supersession, but the two are not synonymous. Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) (the 2012 Regulations), reg 3 defines a ‘calculation decision’ as including decisions under ss 11, 16 and 17. Whether those subsequent decisions also amounted to fresh ‘maintenance calculations’ within the meaning of the Act was the point in dispute.

King LJ found support for the distinction between a maintenance calculation and subsequent decisions affecting the amount payable in the structure of the CSA 1991. Sections 16 and 17 provide for the revision and supersession of decisions, rather than expressly providing for fresh maintenance calculations. The 2012 Regulations, reg 3 uses the term ‘calculation decision’ to encompass decisions under ss 11, 16 and 17, while regs 73 and 74 refer to the effect of a variation on an existing maintenance calculation, rather than the making of a fresh one. King LJ also drew support from s 20 CSA 1991, which distinguishes between a decision not to make a maintenance calculation under s 11 and a decision not to supersede an existing decision under s 17: [55] and [62]–[64].

Of particular significance was Sch 1, para 16 CSA 1991, which specifies the circumstances in which a maintenance calculation ceases to have effect. These include the death of a parent or there no longer being a qualifying child, but not revision or supersession. Nor did King LJ consider that para 15 of the same Schedule, which permits separate calculations for different periods, supported the father’s interpretation: [60]–[67].

At [99], King LJ concluded that the statutory scheme contemplated a single continuing maintenance calculation.

There remains, however, a question as to the breadth of the statutory definition. Section 54(1) defines a ‘maintenance calculation’ as a ‘calculation of maintenance made under this Act’, expressly including default and interim maintenance decisions. It contains no qualification confining the term to an initial decision under s 11. A supersession which determines a different maintenance liability would, on its face, appear capable of satisfying that definition. King LJ’s construction depends upon the distinction drawn elsewhere in the Act between the original calculation and subsequent decisions affecting it. That distinction is supported by the wider statutory scheme but is not readily apparent from the definition Parliament enacted.

King LJ went on at [100]–[106] to consider the wider purpose of the legislation and the practical consequences of the competing interpretations. On the father’s construction, subsequent CMS decisions could repeatedly bring top-up orders to an end, requiring receiving parents to return to court notwithstanding that the payer’s income remained above the statutory ceiling. The court considered that consequence inconsistent with the purpose of a scheme intended to reduce litigation over child maintenance.

Was the annual review really the problem?

Much of the concern before the court centred on the prospect of top-up orders coming to an end at the next annual CMS review. The father’s argument, however, distinguished the review itself from any supersession which followed it. The 2012 Regulations, reg 19 requires the Secretary of State to fix an annual review date. Regulation 20(2) provides that, where updated income information shows a change, the Secretary of State may make a supersession decision. An annual review does not, simply by occurring, necessarily produce a supersession. It was suggested that the Secretary of State could decline to supersede where the payer remained comfortably above the maximum income threshold. In that situation, replacing one maximum assessment with another might achieve little, while potentially affecting an existing top-up order. A genuine reduction below the threshold would present a different case: the CMS would then have reason to reassess the payer’s statutory liability.

King LJ was not persuaded. At [75]–[80] and [94]–[97], she considered the Secretary of State’s discretion to decline supersession to be extremely limited in a scheme governed principally by a statutory formula. At [84], she illustrated the difficulty by reference to one of Mr Morgan’s older children ceasing to qualify as a ‘relevant other child’. The resulting supersession increased statutory maintenance by approximately £6 per week but, on the father’s interpretation, would also have brought a recently made top-up order worth more than £25,000 annually to an end. Whether the £6 affected the overall maintenance payable would depend on the drafting of the top-up order. A refusal to supersede might equally have avoided the more substantial consequence, although King LJ regarded the scope for such discretion as too limited to provide a satisfactory safeguard.

The barrier between the CMS and the court

In Dickson v Rennie at [22], Holman J described the CSA 1991 as erecting a ‘barrier, or shutter’ between the functions of the CMS and those of the court. Section 8(6) provides a limited exception, permitting the court to award additional maintenance where the payer’s income exceeds the statutory maximum.

At [98], King LJ observed that a payer whose circumstances no longer justified a top-up order could return to court for variation or revocation. That is an important qualification to the continuing effect of such orders, although it raises a further question about the court’s jurisdiction.

Take a payer whose income falls below £156,000 following a change of employment. One course would be to apply directly to the court for relief from the existing top-up order. Another would be to obtain a revised CMS assessment reflecting the reduced income, and then return to court. On either approach, the top-up order remains in force unless and until the court intervenes. The question is what the court can then do.

Section 8(3) CSA 1991 prohibits the court from making, varying or reviving maintenance orders where the Secretary of State has jurisdiction, subject to the statutory exceptions. Section 8(4) expressly preserves the power to revoke, while the exception under s 8(6) depends upon the payer satisfying the statutory income threshold. Where the CMS has made a new assessment based upon income below that threshold, the power to revoke is clear. But does the court retain jurisdiction to vary the existing order?

King LJ touched upon the point at [87], referring to the court’s conventional powers to suspend, vary or revive an order, subject to the requirements of s 8(6) continuing to be met. At [98], she contemplated variation or revocation where those requirements were no longer satisfied. The precise distinction between those powers was not a matter the court was required to determine.

It is worth considering the position where a payer’s reduction in income is temporary. Revocation may bring an end to an order which would otherwise have remained appropriate once earnings recovered, requiring the receiving parent to seek a fresh top-up order. Suspension or downward variation might offer a more proportionate course. Yet if the statutory threshold is no longer met, is that course available? The distinction between varying an order and revoking it may be a rather important one for a payer whose income moves above and below the threshold.

Beyond the appeals

The central question is settled. A revision or supersession within an existing CMS case will not bring a top-up order to an end. A fresh maintenance calculation may be another matter, particularly where an earlier CMS case has been closed.

As to practical consequences, the judgment may affect historic claims for maintenance previously thought to have ceased, subject to the terms of the orders and any subsequent proceedings. Where a payer’s income falls below the statutory threshold, the availability and extent of the court’s powers of variation may also require further consideration.

James Pirrie’s invitation has received an answer. The Court of Appeal has resolved the uncertainty surrounding subsequent CMS decisions without the need for elaborate drafting devices.

[[1]]: ‘Child Support, Sharing Care and the Problems in Top Up Orders (Out into the Open at Last)’, 28 August 2025, https://financialremediesjournal.com/child-support-sharing-care-and-the-problems-in-top-up-orders-out-into-the-open-at-last/

[[2]]: N Wikeley, Child Support: Law and Policy (Hart Publishing, 2006), p 195.