Child Maintenance Top-Up Order: Why the Court of Appeal Says a CMS Review Does Not End It

What the Court of Appeal decided on 21 October 2026

The Court decided that reviews, revisions, supersessions and appeals change the figure payable under a single, enduring maintenance calculation, so they do not trigger the rule that ends a court order when a new calculation is made. Under section 10 of the Child Support Act 1991 and regulation 3 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992, a court maintenance order ceases to have effect when a maintenance calculation is made. The father argued that every later CMS decision was a new calculation. The Court disagreed:

• One calculation. It lasts until an event in paragraph 16 of Schedule 1 to the 1991 Act, such as a parent's death or there being no qualifying child.
• Absurdity avoided. The father's reading would end every top-up order at each annual review, which the judge called absurd.
• Outcome. The mother's appeal in Morrell v Morgan was allowed and the father's appeal in Morgan v Antoniou was dismissed.

How a child maintenance top up order works

A top-up order is a court order for child maintenance above the CMS formula maximum. The CMS applies one of five rates based on the paying parent's gross weekly income, and the basic rate stops at £3,000 a week. GOV.UK states that where income is more than £3,000 a week, the receiving parent can apply to the courts for extra child maintenance.

Section 8(6) of the Child Support Act 1991 lets a court make a top-up order only if three conditions are met: a maintenance calculation is in force, the paying parent's gross weekly income exceeds the cap, and the court is satisfied the circumstances make extra payments appropriate. In unmarried cases the claim is usually brought under Schedule 1 to the Children Act 1989, which also allows lump sums and property orders. The same rules apply to maintenance orders made in other proceedings listed in section 8, including on divorce, which our international divorce guide covers.

How the Morgan case reached the Court of Appeal

The father, Westley Morgan, captained Leicester City to the 2016 Premier League title and the 2021 FA Cup, according to the judgment and reporting by the Leicester Mercury. Consent orders were made for two children with different mothers. A career ending testing maintenance orders is familiar ground for sports and entertainment lawyers.

Date	Event
28 May 2019	Consent order for £36,000 a year, CPI linked, for one child
15 Sept 2020	Consent top-up order for £44,000 a year for the other child, when the father earned about £3m a year
24 Sept 2021	After his last club payment in August 2021, the father tells the CMS he is unemployed
16 Feb 2022	CMS supersedes the calculation to nil, backdated to 24 September 2021
March 2025	Tribunal finds income of £220,000 to £240,000 a year over the previous four years
25 June 2025	CMS treats the father's income as above £3,000 a week throughout
21 Oct 2026	Court of Appeal rules the top-up orders did not cease to have effect

Two family judges reached opposite conclusions, and Mr Justice Peel transferred both appeals to the Court of Appeal. The father accepted in a witness statement that he knew the nil decision was wrong because he had rental income.

Why a CMS review does not end a top-up order

A review does not end a top-up order because the 1991 Act separates the original maintenance calculation from later decisions that vary it: annual reviews, revisions under section 16, supersessions under section 17 and tribunal appeals under section 20. Lady Justice King gave an example: one mother obtained a fresh top-up order in June 2026; on the father's case it would have ended weeks later when one of his older children stopped receiving child benefit, raising her CMS payment by about £6 a week while cancelling more than £25,000 a year in top-up payments.

The Court added that only a court can discharge a court order; secondary legislation should not hand that power to a CMS decision made by computer. Even if regulation 3 applied, an order that "ceases to have effect" is not discharged, so a court could still enforce, vary or revive it. As the Court noted, the point had not been decided after full argument before, a gap worth watching in family law news.

What the ruling means for parents and their advisers

Receiving parents now know a child maintenance top up order survives routine CMS changes; paying parents must go to court to vary or end one. Practical points:

• Enforcement. Arrears can be pursued even if the CMS figure has moved, unless a court has varied or discharged the order.
• Variation. A paying parent whose income falls should apply to the court promptly, ideally with specialist divorce and family lawyers.
• Security. The mother's 2019 request for security against the end of the father's playing career, which he resisted, shows why security is worth raising early for high earners with short careers.
• Mobility. If the paying parent lives abroad, the CMS usually cannot take a new case unless they work for certain British organisations, according to GOV.UK, so maintenance may rest on a court order and reciprocal enforcement instead.

Families planning a move should consider maintenance alongside tax, such as becoming non-resident for UK tax or the inheritance tax tail after leaving the UK, often with wealth managers. Absent agreement, both cases return to the Central Family Court. Find advisers through our directory of experts in England.

Frequently asked questions

What is a child maintenance top up order?

It is a court order for child maintenance on top of the CMS maximum. Under section 8(6) of the Child Support Act 1991, a court can make one where a maintenance calculation is in force, the paying parent's gross weekly income exceeds £3,000 and extra payments are appropriate.

What is the maximum amount for child maintenance?

The CMS formula ignores gross weekly income above £3,000, so its calculation stops rising there, though the amount still depends on the number of children and other factors. Above that level, the receiving parent can ask a court for a top-up order.

Can child maintenance override a court order?

A new CMS maintenance calculation can make an existing court maintenance order cease to have effect. But the Court of Appeal ruled on 21 October 2026 that later reviews, revisions, supersessions and appeals are not new calculations, so they do not end a top-up order.

Does an annual CMS review cancel a top-up order?

No. The Court of Appeal held that an annual review varies the figure under one continuing maintenance calculation. A top-up order stays in force until a court varies or discharges it, or the calculation ends, for example when there is no qualifying child.

How can a paying parent change a top-up order?

By applying to the court. Section 8(4) preserves the court's power to revoke maintenance orders, and the Court of Appeal stressed that only a court can discharge a court order, so a parent whose income falls should apply promptly.

Does the ruling apply if a parent lives abroad?

The ruling concerns cases where a CMS calculation is in force. Where the paying parent lives abroad, the CMS usually cannot take a new application, so maintenance often rests on a court order enforced through reciprocal arrangements.

Sources

1. Court of Appeal: Morgan v Antoniou and Morrell v Morgan [2026] EWCA Civ 1363 (21 October 2026)
2. GOV.UK: How the Child Maintenance Service works out child maintenance
3. legislation.gov.uk: Child Support Act 1991, section 8
4. legislation.gov.uk: Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992, regulation 3
5. legislation.gov.uk: Children Act 1989, Schedule 1
6. GOV.UK: Child maintenance if a parent lives abroad
7. Leicester Mercury: Ex-Leicester City Premier League-winning captain Wes Morgan loses child support appeal (24 October 2026)

About this article

This analysis was researched and written by The Corporate INTL Newsroom, which covers cross-border legal, regulatory and business developments for lawyers, professional advisers and financiers in over 150 jurisdictions. It has been checked against the Court of Appeal's judgment, the Child Support Act 1991 and related regulations, GOV.UK guidance and primary reporting. This article is general information, not legal advice; for advice on a specific matter, consult a qualified adviser. Last reviewed 28 October 2026. For more analysis like this, visit the Corporate INTL newsroom or subscribe to Corporate INTL.