One of the biggest concerns for any parent who has separated or divorced will be household finances, particularly when there are children to provide for.
If you are concerned that the financial arrangements you have made with your former spouse or partner are not sufficient to meet your child’s needs it may be possible to ask the court to make extra provision using Schedule 1 of the Children Act 1989.
Ruth Jackson, family law Barrister at Forrester Sylvester Mackett explains when extra provision can be requested and highlights some of the circumstances in which an application for extra support might be appropriate.
What does Schedule 1 of the Children Act 1989 do?
Schedule 1 of the Children Act 1989 allows you to ask the court to make extra financial provision for your child if you believe that the existing provision made for them is not sufficient. This may be the case if your former spouse or partner is very wealthy and what they are paying does not reflect this, or if your child has specific needs that cannot be met by the amount of money they are currently receiving and you believe you former spouse or partner, although not particularly wealthy, can afford to pay more.
Types of order that can be made
The types of financial provision that can be made include:
- child maintenance, which can be paid to you for the benefit of a child or to the child directly;
- a capital lump sum, which may have to be paid in full straightway or by installments over a defined period;
- a transfer of property, either to you for the child’s benefit or to the child directly; and
- a direction that a child should be entitled to occupy a property for a defined period.
The important thing to note about these orders is that if they are made, they will be made strictly for the benefit of the child. They cannot be used as a means of topping up your divorce settlement.
Who can make an application?
An application can be made by a biological or adoptive parent or step-parent, a guardian or special guardian, or anyone in whose favour a residence order has been made. In certain circumstances, it is also possible for a child to make an application with the help of a representative.
If a judge believes that a Schedule 1 order is appropriate in a certain case, but no Schedule 1 application has been made, he or she can, in effect, also make an application to ensure the range of orders possible under Schedule 1 can be made.
In what circumstances might an application be appropriate?
There are a number of circumstances in which an application might be appropriate, including where it has not been possible to deal adequately with financial provision for a child as part of divorce proceedings or where the parents in question are unmarried or the parent from whom support is sought is a step-parent.
An application may also be appropriate where the financial provision being sought is outside the remit of the Child Support Agency or Child Maintenance Service, for example because the parent being asked to pay lives abroad or because the amount they are being asked to pay exceeds the maximum sum the Child Support Agency or Child Maintenance Service can order to be paid.
The following are examples of the types of situation in which Schedule 1 may be useful.
The parents of a child have separated. The Child Maintenance Service has directed that the father should pay a sum equal to the statutory maximum for the benefit of the child. However, the child is disabled and has ongoing needs which mean he requires financial provision in excess of the statutory maximum; he also needs to have specialist equipment installed in his mother’s new house.
In these circumstances, and providing the father can afford it, an application could be made to force the payment of a higher rate of maintenance and also the transfer of a lump sum.
The parents of a child have separated. While the father, with whom the child lives, is happy with the level of maintenance being paid, he is concerned about the suitability of the house they are currently in because it is cold and damp which is making the child’s asthma worse. The house is worth £100,000. The father has been to some local estate agents and has been told it will cost him £200,000 to buy a newer property or an older property in good condition. The mother has a new build holiday home in the next village which she rarely uses.
In these circumstances, and again providing the mother can afford it, an application could be made to force either the payment of a lump sum to help fund the purchase of a new home or alternatively an order that the holiday home be transferred to the father for the child’s benefit or to the child directly, or else a direction given that the child should be allowed to live in the holiday home until he reaches a certain age.
What sort of factors will the court take account of when deciding whether to make an order?
The court will take a number of factors into consideration when deciding what if any order it should make. These include:
- the respective financial resources of the parents;
- the respective responsibilities and needs of the parents, including to any other children for whom they have or have assumed responsibility;
- the financial needs and requirements of the child, including any that arise because of a disability; and
- the intention of the parents as to how the child should be cared for and educated.
For a confidential discussion about Schedule 1 applications, or any other family law issue, contact our family team.