A Court of Appeal ruling has clarified when child maintenance top-up orders remain enforceable after the Child Maintenance Service changes its assessment of a parent’s liability. The decision is significant for parents seeking to enforce court-ordered maintenance where the CMS has reviewed, revised or superseded its calculation.
What did the Court of Appeal decide?
In Morgan v Antoniou; Morrell v Morgan [2026] EWCA Civ 1363, the Court of Appeal considered two appeals raising the same question under the Child Support Act 1991: whether a later CMS review, revision, supersession or appeal decision amounts to a fresh maintenance calculation and therefore brings an existing top-up order to an end.
Lady Justice King, giving the leading judgment, concluded that the legislation provides for one continuing maintenance calculation. That calculation may be changed through the statutory processes, but those changes do not automatically amount to a new calculation for the purpose of terminating a top-up order.
The court dismissed Mr Morgan’s appeal in Morgan v Antoniou and allowed Ms Morrell’s appeal in Morrell v Morgan. Sir Stephen Cobb, President of the Family Division, and Lady Justice Asplin agreed with the judgment.
Why were the appeals brought?
The proceedings concerned two children of Mr Morgan and separate consent orders requiring him to pay additional maintenance. In Ms Antoniou’s case, a top-up order made in September 2020 required annual payments of £44,000. In Ms Morrell’s case, a consent order made in May 2019 provided for annual payments of £36,000, subject to its terms.
After Mr Morgan retired from professional football, he told the CMS that he was unemployed. In February 2022, the CMS superseded the existing calculation to a nil rate, effective from 24 September 2021. The mothers challenged that decision. Following appeals to the First-tier Tribunal, the matter was remitted for recalculation, and the CMS later assessed Mr Morgan as having gross weekly income above the statutory £3,000 threshold throughout the relevant periods.
The mothers then sought to enforce arrears of approximately £137,000 each. The first-instance courts reached opposing conclusions on whether the top-up orders had ceased to have effect. The Court of Appeal heard the appeals together to resolve the common point of statutory interpretation.
- A consent order provides for maintenance for Ms Morrell’s child.
- A consent order provides for a top-up order in Ms Antoniou’s case.
- The CMS supersedes the calculation to a nil rate, effective from 24 September 2021.
- The First-tier Tribunal allows the appeals and remits the matter for recalculation.
- The Court of Appeal dismisses Mr Morgan’s appeal and allows Ms Morrell’s appeal.
How does the CMS calculation work?
The Child Support Act 1991 established a statutory formula for calculating child maintenance. Under sections 4 and 11, an application is made for a maintenance calculation, with the amount determined under the statutory scheme. The legislation also provides mechanisms for annual review, revision where a decision was wrong, supersession following a change of circumstances, and appeal.
The distinction mattered because section 8(6) permits a court to make a top-up order in qualifying cases where the non-resident parent’s gross weekly income exceeds the statutory ceiling, currently £3,000. The question was whether every later CMS decision was a new calculation that caused a top-up order to cease under the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992.
The court held that the statutory framework distinguishes the original maintenance calculation from later decisions affecting it. The legislation describes the effect of revisions and variations on the calculation rather than requiring a fresh calculation each time. The calculation therefore continues, subject to changes made under the statutory scheme, until an event specified by the legislation causes it to cease to have effect.
Why did the court reject the father’s argument?
Mr Morgan argued that decisions under sections 11, 16 and 17 of the 1991 Act should each be treated as fresh maintenance calculations. On that interpretation, a top-up order could cease to have effect whenever a review, revision or supersession occurred.
The court rejected that approach after considering the wording of the Act in its wider statutory context and the purpose of the CMS scheme. Treating every subsequent decision as a new calculation could require a parent with a top-up order to return to court repeatedly to secure a fresh order, even where the non-resident parent continued to earn above the statutory threshold. It could also create uncertainty when circumstances changed between annual reviews.
“There is one single maintenance calculation.”
— Lady Justice King, summarising the court’s interpretation of the Child Support Act 1991
The court considered that this interpretation best fitted the structure and purpose of the legislation and avoided an unworkable result. It also noted that the non-resident parent may apply to vary or discharge an order if the circumstances no longer justify it. A top-up order is not automatically permanent: the statutory requirements must continue to be met, including the court being satisfied that the circumstances make an order appropriate.
What happens next?
The appeal in Morrell v Morgan was allowed, meaning the decision dismissing Ms Morrell’s enforcement application was in error. Mr Morgan’s appeal in Morgan v Antoniou was dismissed. The court indicated that the parties should seek to reach an agreement to bring the litigation to an end. If no agreement is reached, both cases will return to the Designated Family Judge at the Central Family Court for directions and allocation hearings.
For family law practitioners, the judgment provides authoritative guidance on the relationship between CMS calculations and court-ordered top-up maintenance. A review or supersession should not, without more, be treated as automatically extinguishing an existing top-up order; the terms of the order and the statutory framework remain central to any enforcement application.
Frequently asked questions
Does a CMS review automatically end a child maintenance top-up order?
No. The Court of Appeal held that reviews, revisions and supersession decisions do not each constitute a fresh maintenance calculation that automatically ends an existing top-up order.
What was the main legal issue in the appeals?
The issue was whether later CMS decisions under the Child Support Act 1991 create a new maintenance calculation for the purpose of deciding whether a top-up order ceases to have effect.
What was the outcome of the two appeals?
Mr Morgan’s appeal in Morgan v Antoniou was dismissed. Ms Morrell’s appeal in Morrell v Morgan was allowed.
How much maintenance arrears were being pursued?
The judgment records that each mother was seeking to enforce arrears of approximately £137,000 under the relevant top-up order.
What happens if the parties cannot agree on the next steps?
The cases will be remitted to the Designated Family Judge at the Central Family Court for directions and allocation hearings.