Child maintenance ‘top up’ claims under Schedule 1: The modern approach after James v Seymour and HECSA
For many separating parents, child maintenance is dealt with through the Child Maintenance Service (CMS). However, where the paying parent earns beyond the CMS statutory cap, the family court retains jurisdiction to make ‘top up’ child maintenance orders under Schedule 1 of the Children Act 1989.
The difficulty has always been determining how those top up awards should be fairly assessed in very high-income cases.
Recent authorities, particularly James v Seymour [2023] EWHC 844 (Fam), together with the increasing development of Household Expenditure Child Support Awards (HECSA), have brought sharper focus to the modern approach now being adopted by the courts.
What may now be emerging is not two competing approaches, but two analytical stages within the same Schedule 1 exercise.
In broad terms:
The distinction matters because Schedule 1 remains fundamentally welfare-driven and child-focused.
The modern approach therefore appears to involve a two-stage exercise. This is not a mandated sequential test, but rather a conceptual way of understanding how courts often reason in practice:
Understanding the interaction between those concepts is becoming increasingly important in ‘top up’ child maintenance cases.
The CMS has jurisdiction to calculate child maintenance where the paying parent earns up to £156,000 gross per annum. Beyond that threshold, the family court can make a ‘top up’ order.
In James v Seymour, Mostyn J sought to provide greater structure to top up child maintenance claims whilst recognising the limits of any formulaic model.
The judgment introduced the Adjusted Formula Methodology (AFM), which attempts to preserve consistency and proportionality in higher income cases without producing excessive or artificial outcomes. Importantly, James v Seymour does not establish a rigid formula. Rather, it provides a principled starting point for child maintenance claims where income falls broadly between £156,000 and approximately £650,000. The court made clear that discretion remains central.
In practical terms, James v Seymour tells us several things;
Importantly, Mostyn J also recognised that there are some cases where the AFM is simply not appropriate at all.
That is where HECSA enters the discussion.
A Household Expenditure Child Support Award (HECSA) is not simply an exercise in adding up the direct expenses attributable to a child. Rather, it is a broad-brush assessment of the costs reasonably required to sustain a child-focused household and an appropriate standard of living.
The concept recognises two important realities. First, the applicant parent will often incur wider household expenditure that is intrinsically linked to the care of the child and which they may be unable to meet independently without significant financial strain. Secondly, a child’s standard of living should not be entirely out of kilter with that of the paying parent and should bear some resemblance to the lifestyle experienced during the parties’ relationship.
A HECSA therefore seeks to allocate a proportionate share of household expenditure connected to the child’s care, which may include:
However, the exercise must exclude expenditure personal to the applicant parent. HECSA is not an adult-centric budget, and it is not disguised spousal maintenance.
Importantly, the goal is not to replicate the lifestyle previously enjoyed by the child, but the court does seek to ensure that lifestyle is not entirely out of kilter with that of the paying parent.
Where income exceeds the CMS cap of £156,000 per annum, but remains below approximately £650,000 per annum, the modern approach is increasingly to treat the James v Seymour methodology as the starting point.
The court will then test whether the James v Seymour calculation is actually supported by the child’s household expenditure and wider needs. This is where the HECSA analysis becomes important.
In many conventional cases, the AFM may remain sufficient. But once issues of lifestyle, household expenditure or broader needs emerge, a more detailed HECSA analysis is likely to follow.
The developing approach can perhaps best be understood in the following way:
HECSA arguably pushes the court towards a broader lifestyle analysis, meaning the exercise becomes far more than a purely mathematical calculation.
Whilst formulaic consistency remains relevant, the ultimate objective is still to arrive at an outcome that fairly reflects the child’s needs, household realities and standard of living.
For separating parents involved in Schedule 1 claims, the practical implications are significant. Relying solely on a broad-brush CMS formula may no longer be sufficient. Instead, parties need to consider at an early stage:
Whilst James v Seymour has introduced welcome guidance and structure, it has not eliminated discretion. HECSA may now open the door to increasingly forensic disputes regarding household expenditure, lifestyle and proportionality.
The relationship between AFM style formulaic awards and HECSA based discretionary assessments will continue to evolve as more cases work their way through the courts.
Schedule 1 claims are becoming increasingly sophisticated. For families with substantial incomes, these cases now require careful strategic consideration from the outset. As with so much in family law, the court continues to search for fairness in circumstances where rigid formulas rarely sit comfortably alongside the realities of modern family life.
Ultimately, the interplay between James v Seymour and HECSA reflects a broader judicial recognition that, whilst formulas may provide guidance, children’s lives rarely fit neatly into spreadsheets.
Schedule 1 claims involving high-income paying parents are among the most complex and strategically demanding areas of family law. Whether your case is likely to be approached through the James v Seymour methodology, a HECSA analysis, or a combination of both, early specialist advice can make a significant difference to the outcome.
At Family Law Partners, our experienced family solicitors can advise you on every aspect of Schedule 1 child maintenance claims, from assessing the right approach for your circumstances to preparing the detailed financial evidence these cases increasingly require. Where court proceedings can be avoided, we will always explore alternatives, including family mediation, collaborative law, and lawyer negotiation.
If you would like to speak with a member of our team about a Schedule 1 claim or any aspect of child financial arrangements, please get in touch.
Charlotte Plowman is a Senior Associate Solicitor and Mediator in our Horsham team.