Child maintenance and Schedule 1 of the Children Act 1989: When unmarried parents separate
Approximately 48 percent of all children in the UK are born to parents who are not married or in a civil partnership. This is a trend that has increased by almost 10 percent over the course of the past decade.
If a relationship between unmarried parents breaks down, the options and amount of financial support and provision can be more limited than that available to married parents. In most cases support will be limited to child maintenance using the calculations set out by the Child Maintenance service as a guide. In some cases additional support will be available under Schedule 1 of the Children Act 1989.
The Child Maintenance Service
You may be entitled to child maintenance from your former partner. This is usually dealt with in line with the calculations set out by the Child Maintenance Service.
The calculation will vary depending upon the income of the paying party and deductions can be made to take account of the number of nights per year that the child spends with them. The Child Maintenance Service provide a calculator on their website to help you to work out the right level of child maintenance.
Most parents choose to reach a private agreement with their partner in terms of the amount and payment of child maintenance. However, if this is not possible for whatever reason, you can apply to the Child Maintenance Service to make their own calculations about the appropriate level of maintenance. The Child Maintenance Service will also collect and pass on payments where required, although there is a fee for this service for both parents which is added to/taken off the payment as appropriate.
The maximum level of income that the Child Maintenance Service is able to take account of is £3,000 gross per week. When a paying parent’s income is in excess of this amount, it is possible to make an application to the courts for “top up” maintenance under Schedule 1 of the Children Act 1989 if necessary.
Schedule 1 of the Children Act 1989
An application under this section can be made by an unmarried parent seeking further financial support from their former partner. The court has the power to make the following orders:
- For regular maintenance to be paid in relation to the child. This might be as a “top up” in respect of income in excess of the amount that the CMS can consider as set out above but could also relate to school fees or for the benefit of child with additional health needs.
- Lump sums of capital for a given purpose. The court has demonstrated a wide discretion in this regard so long as the expenditure is for the child’s benefit. This could for instance cover the cost of purchasing a car in which to transport the child.
- Settlement or transfer of property so that the child has a home. Typically, the provision of a home for a child would only last until the child reaches the age of 18, after which point the property would then revert back to the control of the parent that purchased it.
When considering applications under Schedule 1,the court will have regard to the following issues:
- the income, earning capacity, property and other financial resources paying party has or is likely to have;
- the financial needs, responsibilities and obligations of the parent making the application;
- the Financial needs of the child;
- the income, earning capacity and property of the child (if any);
- any physical or mental disability of the child;
- the manner in which the child is or is expecting to be educated (for instance are they attending or was it planned that they would be attending a fee paying school).
In many cases, Schedule 1 applications relate to cases where the income and/or assets of one parent are very high, although that is not always the case.
Careful thought needs to be had before pursuing an application of this nature as the court has a broad discretion to order that one party should pay the other’s legal costs, which can often follow the outcome of the proceedings.
Legal advice from an early stage can help parties to balance the risks and benefits of making this type of application and to navigate the process.