I was reminded recently in a case that it is possible to obtain financial support under Schedule 1 of the Children Act 1989 in certain circumstances.
The facts in my case were that the Parents were divorced and there had been no financial orders made. The Father had the care of the children on an interim basis, but the Mother had a lot of contact and also half of the School Holidays. As a result of her losing her benefits when the children changed residence (and almost her home) and having to pay half of her new benefits payments in ‘bedroom tax’ every week in order to keep the property, she could barely afford to feed them when she had contact.
The Father, however, was in a much better financial position and we therefore applied for and obtained maintenance under Schedule 1.
The criteria for an order under this provision is found in Schedule 1, which itself is enacted by S.15 (1) of the Children Act. This Schedule contains the court’s powers to make financial orders for children, subject to the CSA 1991, which restricts the court’s powers to do this. Schedule 1 covers 3 situations:
- orders that a parent pay maintenance or a lump sum or transfer property to children when the first application for such an order is made while the child is under the age of 18 (although an order for periodical payments can subsequently be extended if the child is continuing in education or there are special circumstances);
- orders for periodical payments or a lump sum where the first time an application is made is when the child is aged over 18;
- alteration, either during the joint lives of the parents or after the death of one of them, of maintenance agreements containing financial provision for a child.
Schedule 1 makes it clear that any order made to the applicant must be for the ‘benefit of the child’.
What is really helpful is that an order can be made either on application or without application at the time a Child Arrangements Order is made, varied or discharged.
However, I would recommend notice being given because the court will need some financial information (or even a lot of financial information, depending on the Judge) in order to assess the sums applied for. Directions may need to be given in relation to this at an interim hearing, which is what happened in my case. We, however, were not required to make a formal application, just to file a financial statement and provide documentary evidence.
If the children’s parents are married, an alternative way of applying for financial relief for the child (this provision only relates to maintenance for the benefit of the child, not the spouse) is the MCA 1973, s.23 and s.24 if there are divorce proceedings, or if there are no divorce proceedings under s.27. The advantage of taking the route of the MCA 1973 is that the Applicant is able to take advantage of the court’s powers under s.37 to restrain anticipated disposals of assets and to set aside past disposals (where the intention is to defeat the claim). If, however, the child’s parents are not married, that route is not available and the only way the application can be brought is under Schedule 1.
As can be seen s.15 (1) (b) above, it is also possible to obtain financial orders for children over 18, who (are) continuing in education or to whom special circumstances apply. In order to obtain either an order for periodical payments or a lump sum from either or both of the parents, the parents must not be living together in the same household and there must not have been any order in force before the child reached 16 (the remedy there would be to go back on that order and seek to extend or vary it). This provision allows a child over 18 to make an application against his parents for financial support through university or other higher education.
What you need to be very careful about is that this provision is subject to the CSA 1991. If you are precluded from applying by virtue of this, you will be unable to apply under Schedule 1. It matters not whether the parents are married, this route can be used in either case.
Under S. 8 of the CSA 1991, it is set out when the courts have jurisdiction to make any financial orders in relation to children. Effectively, the court has very little jurisdiction to make such orders in cases relating to absent parents. However, subsection (10) explicitly states that the court has powers to make orders against parents with care of the child:
(10) This section shall not prevent a court from exercising any power, which it has to make a maintenance order in relation to a child if the order is made against a person with care of the child
A person ‘with care’ of the child is defined in S.3 (3) as: ‘a person with whom the child has his home; who usually provides day to day care for the child (whether exclusively or with any other person); and who does not fall within a prescribed category of person.
Thus, on the facts of our case, the court is permitted to make such an order because the Father has the care of the child. The CSA, conversely, only has jurisdiction to make orders against ‘non-resident parents’ who are habitually resident in the UK.
Under S.8 of the CSA 1991, the court is excluded from jurisdiction to make orders save to vary a pre-existing order whether made before or after April 1993 if there has been no CSA calculation (ss (3A)). The court is entitled to revoke an existing order though.
The Court can also make orders implementing a written agreement for maintenance between the parents (ss (5)), ‘top-up orders’ (ss (6)) if the CSA has made a maximum assessment i.e. an assessment based on a gross weekly income in excess of £3,000: Dickenson v Rennie (2015) 2 FLR 978, orders to pay for education or training (ss (7)), orders in relation to disabled children (ss (8)), and lump sum orders under s.23 of the MCA 1973 in the limited circumstances that apply there. It can also make ‘Segal orders’ which is an order for spousal maintenance which will later absorb any subsequent child support calculation, but only where the order contains a substantial amount of spousal maintenance.
The case law on Schedule 1 makes it clear that the Applicant must have a Child Arrangements Order: N v C (Financial Provision; Schedule 1 Claims Dismissed) (2013) EWHC 399 (Fam). The words ‘benefit of the child’ include financial and welfare benefit. The power of the court is construed widely, where a benefit to the mother also benefits the child.
In Re S (Child: Financial Provision) (2005) 2 FLR 94, CA, the court made a financial order to include the costs of the Mother’s travel to the Sudan to see the child and to pursue contact; the court has the power to make an order against a parent who is out of the jurisdiction with the child.
A parent bringing a Sch 1 application is acting in a quasi-representative capacity for the benefit of the child and may be entitled to an interim costs order to pursue the application: M-T v T (2007) 2 FLR 925.
In MB v KB (2007) 2 FLR 586 where a Mother who had secured periodical payments and the right to reside in a house owned by the husband’s family under MCA 1973 was permitted to apply for a settlement of property and lump sum order under Sch 1, and the court disapproved the application of estoppel in cases involving children, finding that a change of circumstances and the child’s needs entitled the mother to make her application. The mother may have concluded her own claims for housing, but not the right to claim on behalf of her child.
In addition, it has been held that the jurisdiction exists to consider a further lump sum after a clean break in divorce proceedings, but circumstances had to be exceptional, there was a very high hurdle to be overcome to achieve a further award as to housing, where there had been a consent order for financial provision in divorce: PK v BC (Financial Remedies: Schedule 1 (2012) 2 FLR 1426.
The court does though have a wide discretion in relation to ordering lump sums: Re M-M (Schedule 1 Provision) 2 FLR 1391 where the court of appeal approved in principle the payment of the Applicant’s credit card debts and repairs to her own property. The court held that they must balance the Father’s circumstances, which may be wealthy, with the needs of the Mother in raising the child, but without importing an element of profit for the Mother
Where an income order is permissible, the starting point is the level of CSA assessment: SW v RC (2008) 1 FLR 1703. An income order may take account of bonus payments, but overall should be at CSA levels: Re M-M (above). The concept of a ‘carer’s allowance’ is no longer appropriate and the court instead should provide the resources for back-up childcare and housekeeping to allow the Mother to go out to work without anxiety: PG v TW (No 2) (Child: Financial Provision) (2014) 1 FLR 923.
Additionally and importantly, there is power to transfer property to the Applicant for the benefit of the child, or directly to the child, or to settle property on a child. Property is usually a house for the mother and child to live in; it may include a joint tenancy: K v K (Minors: Property Transfer (1992) 2 FLR 978.
In summary therefore, Schedule 1 comes in handy in a number of circumstances, as referred to above, but particularly where the non-resident parent is financially struggling to the point that they cannot provide for the child during periods of contact. Where one parent is reliant on benefits or on a low income, this is a potentially vital safeguard, particularly when it could mean that the relationship between the non-resident parent and child could be at risk of break down because they cannot provide for the child during periods of contact. In my case, for the Mother it had already meant that she did not take up her 3 weeks of contact during the summer holidays because she simply could not feed the children for that period.