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Can I agree maintenance for my child(ren), and where does CMS fit in?
When a married or unmarried couple with children separate, they must consider financial provision for the children’s maintenance. Usually the parent the children live with will receive maintenance for them from the other parent. This can be achieved by agreeing an appropriate amount, or if a figure cannot be agreed an application can be made to the CMS (the Child Maintenance Service – formerly the Child Support Agency)which will make a financial assessment as to what the non-resident parent should pay (www.cmoptions.org)
What if CMS cannot help me?
In some situations the CMS doesn’t have the power to deal with the calculation of maintenance or deal with the requirements for a lump sum of money (for instance to help provide accommodation).In these circumstances it may be possible to make an application to the Court under Schedule 1 of The Children Act 1989 (“a Schedule 1 application”). This can be done whether or not the parents of the child are married.
When can Schedule 1 Orders be made?
– When the non-resident parent lives outside of the jurisdiction of the courts of England and Wales
– When the CMS no longer has jurisdiction, where a child is aged between 17 and 18 and not in full time education or where a child is over the age of 18 and in full time education or training for a profession or vocation.
– For ‘top up’ maintenance where the non-resident parent’s income is substantial
– To consider education costs and ensure that, for example, school fees are met
– To cover any specific costs which may arise if a child is disabled.
What types of Schedule 1 Orders can be made?
An application under Schedule 1 of the Children Act can provide a range of order for both maintenance and capital specific to the needs of your case
Maintenance payments – assessed having regard to the financial circumstances of the parties
A lump sum payment – this would need to be for a specific purpose, such as education or, for example, changing the layout of a property to meet a child’s disability needs.
A transfer of the property for the benefit of a child – this could be to transfer a property to the resident parent to use until the child finishes education, or alternatively ordering that the non-resident parent purchases a property for the benefit of the child. This property could then be transferred back to the non-resident parent once the child had finished secondary education or another agreed date.
Also in certain limited circumstances, a child over 18 may apply for financial provision against one or both of his/her parents; for instance to pay for university education.
How do I make an application for further financial provision for my children?
Firstly, you will need specialist advice to confirm that you have good grounds for making an application and reasonable prospect of success.
An application is made to the Court, setting out the request and providing background evidence as to why it has been made.
The Court will list the case for a first ‘directions’ appointment to consider the application and will direct the both parties disclose their financial situation
When financial information has been exchanged the court will list the application for a further hearing to try and assist negotiations between the parties. To help the negotiations the judge may give some indications as to what he believes is an appropriate outcome in this case
If a settlement cannot be negotiated the matter will be listed for a Final hearing where the court hears evidence from both parties and makes an order imposed on both parties
What are the costs of making a Schedule 1 Application?
There are standard court fees that need to be paid in every case. Other legal costs will depend heavily on the complexity of the finances and circumstances of the case.
In some cases the courts have been persuaded to make an order providing a ‘fighting fund’ for the applicant’s legal costs; this can be very effective where appropriate . It is important to discuss at an early stage whether this could apply to you.
Please in any event contact us to discuss your case so that we can give you our best estimate of likely costs.
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Raworths LLP Solicitors
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Harrogate, HG1 1HF T: 01423 566666 F: 01423 504572
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