Maintenance claims brought under Schedule 1 of the Children Act 1989 are used only where a case falls outside the jurisdiction of the Child Maintenance Service (CMS) and the parties have not reached an agreement as to the amount of maintenance that should be paid.
Applications under Schedule 1 are most commonly made by cohabitants or former cohabitants as spouses, former spouses, civil partners and former civil partners have the wider remedies available under divorce and civil partnership laws. However, even if former spouses or civil partners reach a financial settlement in respect of their own financial claims this does not end the right to claim in respect of a child.
Those who may apply are:-
- a parent
- a step-parent of the child
- a guardian or special guardian of the child
- any person in whose favour a residence order is in force with respect to a child
- the child, if over the age of 18 (see below)
The definition of a parent includes parties who were not married to each other, i.e. cohabitants and former cohabitants and parents who had a child together but were not married, cohabitants or former cohabitants.
The definition of a step-parent is limited to parties who are:
- spouses
- former spouses
- civil partners
- former civil partners
Note that a person who is not the biological parent but has lived with the other party outside marriage or civil partnership (whatever the length of their relationship with the child) is not a parent or step-parent for the purposes of Schedule 1. In T v B [2011] a same-sex former cohabitant, who had parental responsibility by virtue of a shared residence order, was considered to be the social and psychological parent of the child but she was not responsible for the financial maintenance of the child on the basis that there is a difference between a ‘natural’ parent and a ‘legal’ parent.
A parent or guardian may apply for Orders in relation to capital (a lump sum), periodical payments (monthly maintenance) or benefit from a transfer or settlement of property (e.g. the former family home is transferred into the sole name of one or other party or an order is made to provide a property).
An application can be made under Schedule 1 up until the point a ‘child’ is still financially dependant (i.e. where a child is over 16 but not in fulltime education or over 19 but still in full time education). Whereas maintenance under the Child Support Agency (CSA) ends either when the child leaves education or at 19 – whichever occurs first. Whereas the CSA has a maximum income figure, of £104,000 a year after tax for the paying parent, that can be taken into account in their calculations for child support payments, a Schedule 1 application would take into account the total income received.
A child over 18 can apply themselves for periodical payments, normally for financial support for further education or vocational trading.
Applications can also be made in respect of reimbursement of expenses already incurred, including those connected with the birth or to cover future expenses/needs, such as a car (to transport the child) or school fees. Maintenance and/or lump sum payments can also take into account additional needs, for example if the child has any disabilities.
There is no limit to the number of lump sum applications that can be made before the child reaches 18.
However, a transfer or settlement of property order can only be made once, effectively providing a home for a child, at least until 18 and often to 21 or completion of full-time education up to the end of first degree level. If such an Order is made the Applicant needs to be aware that their right to occupy the home also ends at the same time as the child’s.
Schedule 1 applications are made in the Family Court.