Providing for a child where the parents were not married

Adam Kidd

It may come as a surprise to many, but in recent years the parents of almost half of all children born in England and Wales were not married or in a civil partnership.

If the relationship of those parents should break down they will obviously have to make arrangements for the financial provision of those children, including in particular their maintenance and housing.

Hopefully, the parents will be able to sort out these arrangements between themselves by agreement. But what if they cannot? After all, the parent with whom the child is living can’t apply to a divorce court for a financial settlement.

Child maintenance, if not agreed, can of course usually be dealt with via the Child Maintenance Service (CMS’). But what about housing, or any other financial needs of the child?

This is where Schedule 1 of the Children Act 1989 comes in.

Financial provision for children

Schedule 1 provides a range of orders that the Family Court can make by way of financial provision for children.

These include: an order requiring a parent to pay maintenance for the child (useful where the CMS does not have jurisdiction, or to ‘top up’ maintenance, where the parent earns more than £3000 per week gross, the maximum covered by the child support system); an order requiring a parent to pay a lump sum of money for the benefit of the child (to cover expenses incurred in maintaining the child); and an order settling or transferring property for the benefit of the child.

That last one requires further explanation. It relates to the situation where the child is living with one parent and the other parent owns (or can acquire) property, suitable for the child to live in. The court can make an order to enable the child to live in the property.

It is however rare for the court to order the property-owning parent to transfer the property to the other parent or the child. More commonly the court will order that the child and the parent caring for him or her can live in the property until the child grows up, whereupon the property will revert back to the parent who owns it.

Generally, these orders last until the child reaches the age of eighteen, or until they finish their education, if later. They can also last into the child’s adulthood if there are special circumstances, such as where the child suffers from a physical or mental disability.

It should be emphasised that these orders are for the benefit of the child, not the parent with whom the child is living. That parent cannot use Schedule 1 as a ‘back door’ to obtaining the sort of financial settlement for themselves that they could have obtained on divorce, had they been married to the other parent.

Matters the court will take into account

In deciding whether to make any of these orders the court will have regard to all of the circumstances of the case, including the following matters:

1) The income, earning capacity, property and other financial resources which each of the parents has, or is likely to have in the foreseeable future;

2) The financial needs, obligations and responsibilities which each of the parents has or is likely to have in the foreseeable future;

3) The financial needs of the child;

4) The income, earning capacity (if any), property and other financial resources of the child;

5) Any physical or mental disability of the child; and

6) The manner in which the child was being, or was expected to be, educated or trained (orders can cover the payment of school fees).

Schedule 1 applications can be quite complicated, and there can be costs implications where an application is made without merit. Anyone contemplating making a Schedule 1 application should therefore first seek expert legal advice.

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