Schedule 1 of the Children Act 1989 gives the court the power to make orders for financial provision for children.
In most cases, it is used to protect and provide financial support for a child where the parents are unmarried.
A common misconception is that Schedule 1 only assists where the paying parent is wealthy. Schedule 1 is not discriminatory and is a provision which is available to all parents who require financial support to meet the needs of their child or children.
Who can apply to the court under Schedule 1?
- A parent;
- A guardian or special guardian;
- Any person who a child lives with under a child arrangements order.
An application can also be made where a child lives in England and Wales but the parent does not.
It is important to be aware that a claim under Schedule 1 is focused on financial provision to meet the needs of the children. In most cases, financial child support will usually last until the child reaches 18.
A child over the age of 18 can also make an application in some limited circumstances such as if they are still in full-time education, training or there are special needs or a disability to take into consideration.
How do you apply?
To obtain financial provision for a child under Schedule 1 it may not be necessary to make an application to court. Before making an application your solicitor is likely to see if it is possible to agree financial provision with the other parent on your behalf. In an agreement cannot be reached then an application to court may be made.
- MIAM
Before making an application it is necessary to attend a Mediation Information and Assessment Meeting (MIAM) (unless exempted) with a mediator. At this meeting a mediator will assess whether a case is appropriate for mediation.
- Application
The application on the prescribed Form A will then need to be completed and sent to the family court along with a fee of £275.00.
- Financial Disclosure
Once the family court is in receipt of the above, they will send the application to the respondent within 4 days along with a notice of hearing and a blank Form E1. The Form E1 is a financial statement signed by each parent in proceedings for a financial remedy. It requires each parent to set out their financial circumstances in detail, with supporting documents. This form must be completed and filed with the court within 14 days from that date the original application was issued.
- First Appointment
The court will finally fix a first hearing date no earlier than 4 weeks from the initial application and no later than 8 weeks. The first hearing is referred to as a first appointment. The judge will make directions for both parents to comply with so they can proceed to the next hearing and a date will be set.
- FDR
The second hearing is the financial dispute resolution hearing (FDR). This is an opportunity for both parents to agree matters and the majority of cases are resolved by agreement at this stage. The judge will be far more involved here and will give an indication on how they think matters will likely be resolved at the final hearing (if one is necessary). If matters cannot be resolved at this stage, it will progress to a final hearing where there will be a different judge.
- Final hearing
If matters are unresolved and there is a lack of negotiation, then it will progress to a final hearing. The judge will listen to both parents and the evidence in which they rely on. A decision will then be made by the judge rather than a mutual agreement reached between the parents.
This three-stage court progress is to encourage both parents to settle at each given opportunity in order to reach an early resolution.
What will the court consider?
The paramount consideration of the court is the best interests and welfare of the child are taken into account.
The court will require full financial disclosure of each parent so it can evaluate their financial positions and will take into consideration the below factors when considering the appropriate level of financial provision for a child:
• The financial needs of any children
• The financial circumstances of each parent both now and in the future
• The income, earning capacity (if any), property and other financial resources of the child
• Any physical or mental disability of the child
• The manner in which the child was being, or was expected to be, educated or trained.
What financial provision can be made?
The court has the power to make the following financial orders for the benefit of a child:
- Periodical payments
- Periodical payments are essentially maintenance payments. In most cases, child maintenance will usually be dealt with through the Child Maintenance Service (CMS), where a statutory formula is applied based on the income of the non-resident parent.
Alternatively, a family based agreement could be reached where the parents decide between themselves what the non-resident parent should pay on a monthly basis.
However, where the non-resident parent’s income exceeds the maximum rate for a CMS claim (£3,000 gross per week), then Schedule 1 allows a parent to apply for a ‘top-up’ order of maintenance to meet the child’s needs.
- Lump sum orders (including interim orders)
- A lump sum order can be made in favour of a child to meet their ongoing lifestyle needs such as; the costs to purchase a vehicle if the resident parent needs this, home furnishing and medical fees.
- A lump sum order could also be made to fund the resident parent’s legal fees.
- Transfer and settlement of property orders
- This could include provision of a property for the resident parent and child to live in until the child reaches 18. The property may be held on trust meaning that the property is still owned by the non-resident parent, this means in many cases the property will revert back to the non-resident parent once the child reaches 18, or in some cases longer than this.
Ultimately, the court must ensure that the financial needs of the child are met and the standard of the living the child has been used to whilst living with both parents is taken into consideration to assess their ongoing needs.
What are the cost consequences?
In family law proceedings the usual rule is “no order as to costs” which means that each party pay their own legal fees. In Schedule 1 proceedings the usual rule does not apply. This means that one party could be ordered to pay the other parties’ costs. Due to the cost implications of these sorts of applications, it is therefore important to obtain specialist advice from a family law solicitor prior to pursuing an application under Schedule 1 Children Act 1989.
If you require more information on how a Schedule 1 application could apply to your situation or have any related questions, then please feel free to contact a member of our family team today who will be able to assist you.
