Schedule 1 Children Act Financial Provision

What Schedule 1 Financial Provision Is

Schedule 1 to the Children Act 1989 gives the family court power to order one or both parents to provide financially for a child. It sits alongside child maintenance rather than replacing it: the Child Maintenance Service, rather than the court, deals with regular maintenance in most cases, and Schedule 1 deals with what that service cannot reach, above all a home for the child and capital for the child's needs.

For married couples and civil partners, provision for children is usually dealt with inside the financial settlement on divorce. GOV.UK says the rules are different where the parents were not married or in a civil partnership, and that they still have to sort out child maintenance. Those parents have no claim against each other for their own benefit, so Schedule 1 is the route for the child; ownership of a shared home is covered on our unmarried couples and cohabitation pages.

Paragraph 1 lists who can apply: a parent, a guardian or special guardian, or any person named in a child arrangements order as a person with whom the child is to live. The order is made against either or both parents, and paragraph 16 extends parent to a spouse or civil partner in relation to whom the child is a child of the family, so a step-parent who married the parent can be a respondent but a partner who never did cannot. A young person over 18 in education or training may apply for themselves under paragraph 2.

The Orders the Court Can Make and How It Decides

Paragraph 1(2) sets out five orders: periodical payments, secured periodical payments, a lump sum, a settlement of property for the benefit of the child, and a transfer of property. Each except the settlement can be made to the applicant for the child or to the child. A lump sum under paragraph 5 can meet expenses reasonably incurred before the order in connection with the birth of the child or in maintaining the child, and can be paid by instalments. Further periodical payments or lump sum orders can follow while the child is under 18, but paragraph 1(5)(b) allows only one settlement or transfer of property order against the same person for the same child.

Paragraph 4 lists what the court must weigh, having regard to all the circumstances: the income, earning capacity, property and other resources of each parent and the applicant, their financial needs, obligations and responsibilities, the financial needs of the child, the child's own resources, any physical or mental disability of the child, and the manner in which the child was being, or was expected to be, educated or trained. Against a step-parent the court also asks whether, and on what basis, they assumed responsibility for the child.

The Court of Appeal in Re P (Child: Financial Provision) [2003] EWCA Civ 837 explained how those factors work where a parent's means are substantial. The starting point is the home the paying parent must provide, usually through a settlement of property: the home is held for the child's minority and reverts to the paying parent when the child grows up. The court then considers a capital sum for setting up the home and a budget for the child that includes an allowance for the parent's costs as the child's carer. The paying parent's standard of living is relevant, but the applicant has no entitlement in their own right, and the court paints with a broad brush.

Under paragraph 3, periodical payments do not at first run beyond the child's seventeenth birthday unless the court thinks a later date right, and cannot run beyond 18 unless the child is in education or training or there are special circumstances. Unsecured payments end on the payer's death, payments to a parent end if the parents live together for more than six months, and paragraph 9 allows interim payments, which cannot start before the application date unless paragraph 3(5) applies, when the term may begin up to six months earlier.

Child Maintenance Service or the Court?

Section 8 of the Child Support Act 1991 draws the boundary. Where the Child Maintenance Service would have jurisdiction to make a maintenance calculation for the child, the court cannot make, vary or revive a periodical payments order for that child unless an exception applies. A maintenance order for this purpose means periodical payments, so a Schedule 1 claim for a home or a lump sum stays open whatever the service is doing.

Under section 8(6) the court can make a top up order where a maintenance calculation is in force, the paying parent's gross weekly income exceeds the statutory maximum and the court is satisfied that additional periodical payments are appropriate; GOV.UK states that a receiving parent can apply to the court for extra maintenance where that income is more than £3,000 a week. The court can also order payments solely for the costs of a child's education or training under section 8(7), and solely for expenses attributable to a child's disability under section 8(8). Section 8(5) and the Child Maintenance (Written Agreements) Order 1993 allow an agreed order in the same terms as a written agreement, but once it is a year old either parent may apply to the service under section 4(10)(aa). How the calculation works is explained on our child maintenance advice page.

Evidence and Common Problems

A Schedule 1 claim is decided on the child's needs and the parents' resources, so both have to be evidenced: a housing proposal with particulars and prices in a realistic area near the child's school and family, a budget for the child that includes the carer's share, school fees or medical evidence where relied on, and full disclosure of each parent's income, property, pensions, business interests and debts in a financial statement verified by a statement of truth.

Common problems include:

• a paying parent whose wealth sits in companies, trusts or family members' names, which calls for targeted disclosure requests and sometimes a challenge over hidden assets and non-disclosure
• a claim pitched as if the applicant were a former spouse, where an inflated budget damages credibility
• periodical payments sought where the Child Maintenance Service has jurisdiction and no section 8 exception applies

Rule 28.3 of the Family Procedure Rules, which sets the general rule that the court will not order one party to pay another's costs, defines financial remedy proceedings without including Schedule 1 applications, so the civil costs rules applied by rule 28.2 govern instead and the court can order costs against a party. Unreasonable positions and refused open offers can carry a direct cost.

How a Schedule 1 Application Works

Rule 2.3 of the Family Procedure Rules treats an order under Schedule 1 as a financial remedy, so Part 9 applies. Under the standard procedure the case runs like this:

1. Attend a mediation information and assessment meeting unless an exemption applies. Practice Direction 3A lists a Schedule 1 application among those that need a MIAM; our MIAM advice page covers the exemptions.
2. Issue the application on Form A1. A claim only for periodical payments follows the fast-track procedure under rule 9.9B instead. The fee is on the official court and tribunal fees page, and help with fees can be applied for at the same time.
3. Exchange financial statements on Form E1 not less than 35 days before the first appointment, as rule 9.14 requires, with the supporting documents the rules allow and nothing more.
4. First appointment: the judge defines the issues, directs the disclosure, valuations and expert evidence needed, and must list a financial dispute resolution appointment unless the first appointment has itself served as an effective one or there are exceptional reasons.
5. Financial dispute resolution appointment: a negotiation hearing at which the judge gives a non-binding indication of the likely outcome and then has no further involvement in the application. A settlement at any stage is recorded in a consent order.
6. Final hearing, if there is no agreement, before a different judge who decides the housing, the capital, any periodical payments and costs. A periodical payments order can later be varied, and any order can be enforced; see variation of financial orders and enforcement of financial orders.

When Legal Advice Is Especially Important

Take advice early where the other parent has substantial or complex resources, where you need housing rather than income, where a step-parent may be a respondent, where a disability or private education is in issue, or where the claim is being made against you. The single property order rule means a housing order, once made, cannot be followed by a second, and the costs position means an unrealistic claim or defence can be expensive.

If you are in immediate danger call 999; the National Domestic Abuse Helpline is on 0808 2000 247. Where there has been domestic abuse a MIAM exemption may apply, and our domestic abuse and injunctions pages explain the protective orders available.

Where the dispute is really about who owns the home the route is a TOLATA claim, and disputes about where the child lives and the time spent with each parent are dealt with under children matters, separately from money.

How RakLAW Solicitors Can Help

RakLAW Solicitors advises on Schedule 1 claims from 42 Shad Thames in Southwark, a short walk from Tower Bridge, and was founded by solicitor Rakesh Prajapati. We start with a free 15 minute consultation, and set out our charges on the family law fees page. RakLAW does not offer legal aid.

From there we handle the MIAM referral, the Form A1 application, the Form E1 statement, the evidence of the child's needs, the negotiation and every hearing, and we draft any housing settlement so that it reverts to the paying parent as the order provides. Call 0203 345 2000 or book an appointment, and see our wider financial settlements pages.