Claims For Children

Schedule 1 the Children Act 1989 was intended to make limited financial provision for the children of unmarried parents when they separated. Following the Child Support Act 1991, the state, acting through the Child Support Agency (CSA) (formally known as the Child Maintenance Service (CMS)), has primary jurisdiction for assessing and enforcing child maintenance. However, in some circumstances, the resident parent may consider an application to the Court for meet the child’s financial needs. Below, we outlined circumstances in which such claim can be successfully approved the Court.

Interface between statutory child maintenance schemes and the court

The CMS is primarily responsible for assessing and enforcing child maintenance. However the main types of periodical payments order that the Court remains permitted to make for the benefit of children are as follows:

  • Educational expenses.
  • Costs attributable to a disability.
  • Top-up orders where there is a maintenance calculation, the non-resident parent’s income exceeds £156,000 gross each year if assessed under the gross income scheme or £104,000 net each year if assessed under the net income scheme and the court is satisfied that it is appropriate.

The Court also retains jurisdiction to make periodical payments for stepchildren, provided that their parents were married, and for children over the age of 18 years who remain in education or where other special circumstances apply. The Court also has jurisdiction where there is no maintenance calculation in effect and the parties agree the terms of a child maintenance order.

Procedure for making an application under Schedule 1

Financial provision for a child under Schedule 1 is a financial remedy as defined in rule 2.3 of the Family Procedure Rules 2010. The orders available to the court are:

  • periodical payments,
  • secured periodical payments,
  • lump sums,
  • transfer and settlement of property.

Who can apply

Because of the limitations introduced by the CMS, in practice, the main classes of applicant under Schedule 1 are now former partners of the wealthy, or former co-habitees seeking a home during a child’s minority.

Those who can apply for an order for financial provision are:

Provided an application is made before a child attains the age of 18, the court retains jurisdiction to make orders until the disposal of the application, even if such orders are made for the first time after the child attains the age of 18. For children over age of 18, if educational or special circumstances apply to justify the court making periodical payments orders which extend beyond the child’s 18th birthday, those special circumstances would be just as relevant to the issue of whether they provided the factual foundation for a capital order.

The Court has powers to make interim orders and the focus of interim maintenance is on the child’s needs.

Application Process

Stage 1 – Mediation

Attendance at a MIAM is a statutory requirement (subject to specified exemptions).

Stage 2 – Application to the Court and Directions

An application for a financial remedy under Schedule 1 issued on or after 4 June 2018 must be dealt with under standard procedure) unless:

  • The remedy sought is only an order for periodical payments
  • The application is for variation of a periodical payments order.

In these cases, a shortened procedure applies, in which there is no FDR hearing.

The standard procedure involves the following:

  • First Appointment.
  • Preparation for and attendance at the Financial Dispute Resolution hearing.
  • Preparing for the final hearing in proceedings.

Procedure before the first hearing

Within 21 days after the application is issued, the parties must file at court and simultaneously exchange with one another their Forms E1.

Forms E1 must be verified by a statement of truth. They must contain the documents specified in the Form E1 and any other documents needed to explain information in the form. When a party does not have a document specified by Form E1 available for filing and exchange, as soon as they obtain it, they must:

  • Serve a copy on the other party.
  • File a copy at court, with a statement explaining why it was not provided with the Form E1.

Other than the documents specified in the Form E1 or to explain information in the form, no disclosure or inspection of documents may be requested or given between the time the application is filed and the first hearing.

Procedure at the First Hearing

If the court can determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so. The court may use the first hearing or part of it as an FDR. The applicant must produce to the court all offers and proposals and responses to them at the first hearing, rather than seven days before the FDR

If the court is unable to determine the application at the first hearing, the court may give directions relating to:

  • The filing of further evidence.
  • The production of further documents.
  • Any other matter required for the fair determination of the application

The court may also direct that the application be referred to an FDR. If such a referral is not appropriate, the court must direct one or more of the following:

  • A further directions appointment be fixed.
  • An appointment be fixed for the making of an interim order.
  • The case be fixed for a final hearing and, where that direction is given, the court must determine the judicial level at which the case should be heard.

Cancelling hearings

Hearings may not be cancelled except with the court’s permission.

At FisherWright, we have experienced team of family lawyers happy to help you all the way through your matter. If you require further assistance with Schedule 1 Claim please do not hesitate to contact us.