Well known footballer wins child maintenance appeal

Appeal by the father against child maintenance orders made under Schedule 1 to the Children Act 1989. Appeal allowed and remitted the matter for rehearing.

Many of you may have read about the recent case whereby a well-known footballer has successfully appealed an order requiring him to pay £60,000 a year in child maintenance. Whilst the headline is certainly attention grabbing it is somewhat misleading; I very much doubt a headline that read “the court should simply follow the child maintenance formula” would have attracted the same amount of media attention.

Most of the articles that have been written about this case simply state that the father is a well-known footballer in his early thirties.

Having read the Judgment, I can make a good guess as to the identity of the un-named player and for those who are interested, the following facts were set out in the text:-

  • He is a well-known footballer aged 32
  • He has recently been playing for a club in the Championship but was relegated at the end of last season
  • He has a goal bonus within his contract and appears to have benefitted from this
  • His contract expired on the 30 June 2015 and at the time of the hearing, he was considering a contract offered by his club and several others

The full Judgment of this case, reported as Re TW & TM (Minors), can be found here.

The matter was previously before Deputy District Judge Drew in May 2015 who varied pre-existing child maintenance arrangements in respect of the father’s two children, aged 10 and 5. The children have different mothers and both were in attendance at this hearing, together with the father, all acting in person. The father was subsequently represented at the appeal hearing whereas the mother’s remained as litigants in person. Much has been said in respect of the way litigants in person are treated by the court and it is interesting to consider whether the decision at first instance or on appeal would have been different if the parties had the benefit of legal representation.

DDJ Drew made factual findings about the father’s financial position and clearly had a poor impression of him stating “the impression I formed was that he was a man who was determined to put his own expenditure and enjoyment first and his obligations to his children came a very poor second”. DDJ Drew found that at the time of the hearing he was earning £3,000 per week, equating to a basic wage of £156,000 gross per annum. She recorded that there were bonuses to be paid in respect of goals scored and eventually concluded that his overall earning capacity was £190,000 gross per annum.

DDJ Drew was therefore of the opinion that the father’s income exceeded the maximum upon which child maintenance is calculated and sought to apply a top-up to this amount. The father was ordered to pay £2,500 per month per child, equating to £60,000 a year, from a gross income of £190,000. The father appealed this decision on several grounds and the appeal was heard by Mostyn J.

The father was ultimately successful on the basis that it was wrong for the Deputy District Judge to order him to pay such a high proportion of his income. Mostyn J found that the first instance order of £60,000, as a percentage of the father’s gross income, was almost double the amount prescribed by the formula in the Child Support Act. Mostyn J stated that the Deputy District Judge had not referred to the Child Support Act and had failed to justify such a departure from the formula.

Mostyn J advised that it may well have been that evidence would justify departure from the formula in this case, but the issue is that the Deputy District Judge did not recognise the formula as a starting point. He concluded that in the absence of the Deputy District Judge having identified any good reason why she was departing from the formula, he was driven to conclude that her Judgment errs in principle and should be set aside.

The result was that the original order was aside and replaced with an interim order in the sum of £15,200 per annum per child. The equated to 16% of the father’s gross income which Mostyn J advised was a reasonable percentage having regard to the formula figure of 13.05%. The parties were urged to reflect carefully on whether the interim order should not simply be accepted as the final order and the parties were encouraged to reach an agreement in that respect. If no agreement was reached the matter was to be returned to DDJ Drew for further consideration; we may not have heard the last of this one.

Whilst not as scandalous as the headline suggests, this case clearly demonstrates that the starting point for the court when considering child maintenance is to apply the Child Support Act formula. This should be used unless there is a good reason for departure. It remains to be seen whether this decision could lead to much lower child maintenance awards by the court and whether the preference for receiving parents would now be to reach an agreement directly with the paying parents, rather than risk the assessment of the court.

Receiving parents do however have the option to seek additional financial awards from the paying parent under Schedule 1 of the Children Act and can apply for, amongst other things, a lump sum or transfer of property. A final point to consider is that any order made by the court in respect of child maintenance is only legally binding upon the parties for a period of twelve months and at any time after this date, either party can contact the relevant organisation (currently Child Maintenance Options) and request an assessment.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Richard Rigg

Senior Solicitor

I am a Senior Solicitor in the Family team, based in Liverpool.