When can the court make a child maintenance order?

Child maintenance plays an important role in making sure children’s day-to-day needs are met, but the system can feel confusing, particularly the Child Maintenance Service.

When you and your partner separate, one of the first concerns is often how your children will be financially supported. In most cases, child maintenance is dealt with outside the court system. However, there are important exceptions where the court can become involved. Understanding how the two interact can help you make informed decisions and avoid unnecessary complications, as Justin Creed, family law expert at Lodders, explains.

Child maintenance: a definition

Child maintenance is financial support paid by one parent to the other to help cover a child’s everyday living costs. These may include food, clothing, housing and other essentials. Usually, the parent that the child does not live with most of the time (often called the “paying parent”) contributes to the parent who provides the child’s main home.

The role of the child maintenance service

For most families in England and Wales, child maintenance is calculated and managed by the child maintenance service (CMS).  The CMS uses a standard formula to work out how much should be paid. This is based mainly on:

• The paying parent’s gross income
• The number of children
• How often the child stays overnight with each parent

This system is designed to be relatively straightforward and consistent. Parents can either agree payments privately or ask the CMS to assess and collect payments formally. They can undertake a CMS calculation through the government’s online calculator as a guide.

Do you have to use the CMS?

Not necessarily. Many parents reach their own agreement about child maintenance without involving the CMS at all. This is often referred to as a “family-based arrangement”. These agreements can be more flexible and tailored to your specific circumstances.  For example, parents might agree to share certain costs directly, such as school expenses or extra-curricular activities.

That said, informal arrangements do rely on trust and co-operation. If payments stop or disagreements arise, the CMS can step in to make a formal assessment on the application of either parent.

Where does the court fit in?

Generally, the court does not deal with child maintenance if the CMS has jurisdiction. In most cases, this means:

• The court cannot make a Child Maintenance Order
• The CMS calculation takes priority

The aim is to avoid duplication and to keep things as straightforward and consistent as possible.

When can the court make a child maintenance order?

Although the CMS deals with most cases, there are a few key situations where the court can step in.

1. Top up maintenance (high income cases)

The CMS can only assess the gross income of the paying parent up to a certain level.  The current limit is £3,000 per week gross. If the paying parent earns above this threshold, the receiving parent can apply to the court for additional “top up” maintenance.

This is particularly relevant for higher net worth families, where the CMS calculation alone may not reflect the child’s needs or standard of living.

2. School fees and specific expenses

The court can make orders for certain additional costs, such as:

• Private school fees
• Educational expenses
• Costs associated with a child’s specific needs

These are separate from standard child maintenance and can be tailored to the child’s circumstances.

3. Child over 16 or in education

The CMS generally applies until the child turns 16 (or 20 if they remain in full-time education, although not at undergraduate level). In some situations, particularly where a child is older or in further education, the court may become involved.

4. Agreements within divorce proceedings

During divorce proceedings, the court can make temporary child maintenance orders for the other spouse. This is usually dealt with as a global figure for both the child and spouse, rather than two separate payments. They usually last until a final settlement is reached.

The court can also make final child maintenance orders where both parties agree. However, both options can be of limited duration and the CMS can take over responsibility after a certain period. For example, if the court has made a child maintenance order, either parent can apply to contract into the CMS regime once 12 months has passed following the making of that order. The subsequent CMS assessment will then override whatever maintenance figure was set by the court.

5. Where the CMS does not apply at all

There are some situations where the CMS cannot be used, and the court is the only option. These include:

• If the paying parent lives outside the UK (in certain circumstances)
• Where child maintenance is sought from a step-parent
• Cases involving very specific or unusual or financial arrangements

In these situations, the court has a wider role in ensuring a fair outcome.

The benefits of knowing the difference

Knowing whether the CMS or court applies can save time, costs and frustration. It also helps you to choose the right approach from the outset. For many families, the CMS provides a straightforward solution, but for those with more complex financial arrangements, or where additional support is needed, the court may play an important role.

Taking a practical approach

Where possible, reaching an agreement directly with the other parent is often the least stressful path. Using the child maintenance calculation as a guide can to make these conversations easier.

Ultimately, what matters most is that any arrangement is realistic, sustainable, and truly in the best interests of the children.

If anything feels uncertain, particularly where higher incomes, school fees, or international factors are involved, seeking advice early can make a real difference. At Lodders, we help people understand their options, whether that means working with the CMS, going through the court, or agreeing a solution that works for everyone involved. Please get in touch with our family law experts today.