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Child Maintenance.

Most parents will be able to resolve questions about financial support for their children by reference to the Child Maintenance Services (CMS). Even if the CMS is not instructed to calculate child support, the formulas they apply will indicate for most families an appropriate level of financial provision.

There are some situations where the CMS will not be able to assist or are not helpful. These include the following:

  • Some families where either of the parents or the child ordinarily live outside of this jurisdiction
  • Where the paying parent’s net income is more than £104,000 per annum
  • Where a child has special needs
  • Where a child is beyond secondary education

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Schedule 1 – The Children Act 1989

In these situations, the court retains the ability to look at what level of regular financial support is suitable. This is because The Children Act 1989 (Schedule 1) provides that the Court will be guided by, but not bound by, the CMS formulas.

Types of financial provision for children

Beyond the question of regular financial support, there are other types of financial provision to benefit a child that a Court is able to order under Schedule 1. One very common example is where there is a dispute about parents’ contributions towards school fees. Private school fees are not dealt with by the CMS, and an application to Court would need to be made if there were any disagreement about who ought to pay.

In some families, circumstances make it appropriate to look beyond regular payments and school fees to other forms of financial support for children. These might include security for the obligation to make regular payments, capital sums, the provision of a home or the transfer of a property. These are specialised applications, which cannot be made to the CMS and can only be considered by a Court. They are most appropriate where one parent’s financial resources are significantly greater than the others. They are more common between parents who never married or entered into a Civil Partnership.

Settling child maintenance in court

Where the Court is able to resolve any question of financial support for a child under Schedule 1, it is required to take all of the family’s circumstances into account but particularly considers the applicant parent’s financial needs ‘assessed generously.’ In particular, it must consider the following matters when it reaches its decision:

  • The income, earning capacity, property and other financial resources which the child’s parents have, or are likely to have in the foreseeable future
  • The financial needs, obligations and responsibilities which the child’s parents have, or are likely to have in the foreseeable future
  • The child’s financial needs
  • The child’s income, earning capacity, property and other financial resources
  • Any special needs of the child through physical or mental disability
  • The way in which the child was being, or was expected to be, educated

Under Schedule 1, the definition of a child’s ‘parents is wider than normal. It includes a child’s biological mother and father, but also any other person to whom they are or were married, so long as the child was treated as a child of the family. So, an application under Schedule 1 might be made, in suitable cases, against a stepparent (or former stepparent).

“While there is to be no slack or margin for saving, the court must recognise the sacrifice of the unmarried parents generally the mother as primary and usually exclusive carer with a budget that reflects both her position and the position of the father, both social and financial. She is to be free from anxiety or resort to parsimony where the other parent chooses to live lavishly.”

Thorpe LJ in Re P (A Child)[2003] EWCA Civ 837 [49]

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    What is Schedule 1?

    Schedule 1 to the Children Act 1989 was introduced with the intention of making limited financial provision for the minor children of unmarried parents. Schedule 1 allows parents and children of cohabiting relationships that have broken down to make certain limited financial claims. This can sometimes be avoided if the other parent is willing to sign a Parental Responsibility Agreement with you.

    Can Schedule 1 include capital provision?

    Yes. It can include a car fund and for a house to be put in trust until you child turns 18 or completes full-time education.

    I cannot afford the ongoing fees but my child's father has significant financial resources, what can I do?

    You may be eligible for a legal costs allowance from the child’s father. This is something you should take advice upon.