There is an underused provision to protect and provide financial support for a child of unmarried parents in Family Law. This assistance can be found in Schedule 1 of the Children Act 1989.
When a marriage comes to an end, then the Husband and/or the Wife can look for financial support from their spouse to meet their needs as well as the needs of any children of the family. However, it appears that a similar provision for children of unmarried parents after they separate is not commonly considered.
This is understandable as the general publication of Schedule 1 proceedings is limited. The case law reported deals predominantly with “big money” cases and Schedule 1 applications are commonly pursued where the paying parent is considered to be “super-rich”. However, Schedule 1 is not discriminatory. It is available to be considered by all parents who have a child and require financial provision to meet their child’s needs. It is not an area of law limited to the super rich.
Thankfully, most unmarried parents are aware of the obligation for the non-resident parent to have to pay child maintenance (now dealt with through the Child Maintenance Service (“CMS”), formerly called the Child Support Agency/CSA) but it appears that there is a lack of awareness in relation to the area of law that is available to protect and provide for children of unmarried parents which is of a similar nature to the requirements to meet a child’s need upon divorce.
So what does Schedule 1 of the Children Act 1989 provide for?
Schedule 1 applications are not restricted to periodical payments. Most cases will have their periodical payments dealt with through the CMS. That being either a family based arrangement where the parties decide between themselves what the non-resident parent should pay to the resident parent each month. Alternatively there may be an assessment undertaken by the CMS which the parents either pay directly between themselves, or the CMS collects and makes payment for a fee. In exceptional circumstances where the non-resident parent’s income is above the highest rate for CMS claims (£3,000 gross per week) then there is provision within Schedule 1 of the Children Act to ask the Court to order a “top up” of maintenance based on the child’s needs.
In addition to the Court’s power to deal with applications for periodical payments by way of a “top up” order, the Court also has the power to Order the following to meet the child’s needs:-
A lump sum. This includes interim orders as well as any final lump sums to meet legal fees of the resident parent who is having to make an application;
1. Transfer and settlement of property. This could mean that a non-resident parent is expected to provide a home to the resident parent until the child is 18. The property will not be transferred outright to the resident parent, rather, it will be held on trust until a future triggering event, such as the child attaining the age of 18 (or later if agreed between the parties). At this triggering event, the property would revert to the non-resident parent.
Whilst most Orders under Schedule 1 are made for children up to the age of 18, the Court has power to offer additional orders in exceptional circumstances, such as if a child had any disabilities that meant they required further financial provision after attaining the age of 18 because they would not be able to be independent after this time.
It is also worth making the point that the purpose of Schedule 1 is to provide financial provision for the child. It is not to provide financial provision for the resident parent.
The Court will however consider the principle of “equality of arms”. This means where it is clear that the resident parent has no means to pay for solicitors, then it often follows that if the non-resident parent has means to pay for legal representation, that an order will be made for the non-resident parent to meet the resident parent’s legal fees during the proceedings as well as their own.
What will the Court consider when dealing with such an application?
When the Court is asked to consider such an application, it will consider, amongst other things, the following:-
1. The financial resources available to both parents;
2. Any other responsibilities that the parents may have, such as their responsibility towards any other children;
3. Any disabilities of the subject child;
4. The financial requirements of the child;
5. The original intentions of the parents in relation to how the child would be raised to include matters such as private education
In making a decision, the Court will expect there to be full financial disclosure of both parents’ financial resources.
Whilst the resources available to the non-resident parent are going to be a considerable factor, Schedule 1 of the Children Act is based purely on the child’s needs and not, as a starting point, on what is fair or equal. Therefore, you may find that the non-resident parent has considerably more income per month than the resident parent, but the Court should not consider the sharing principle in relation to income, as that is not the function of the Court in these application.
The task for the Court is to ensure that the child’s financial needs are met. Clearly, if there is a situation where there are particularly wealthy parents, then the respective lifestyles of the parents and therefore the subject child, is going to be a consideration of the Court when considering what the child’s ongoing needs are.
Summary
Schedule 1 of the Children Act 1989 is therefore not just for the super-rich. It is becoming more and more common for people to enter into a relationship, cohabit, and have children without marrying. Schedule 1 of the Children Act 1989 is a useful tool which should be considered by unmarried parents when they separate to ensure that the child’s welfare and financial needs are met.
Written by: Rebecca Knight
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Published: 01/11/16