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Cohabiting Parents – What Are You Entitled To For Your Child?

Cohabiting Parents – What Are You Entitled To For Your Child?

Both parents are responsible for financially supporting their children. The father is equally responsible even if he is neither living with the mother nor named on the child’s birth certificate. He can be contacted by the Child Maintenance Service (CMS) for maintenance if he is not living with the mother. Similarly, if the child lives with the father, the mother can be contacted. Both same-sex parents are responsible for financially supporting their children if they are the children’s legal parents and can be contacted by the Child Maintenance Service for maintenance.

What is Schedule 1 Children Act 1989?

On the breakdown of the relationship of an unmarried couple, financial claims can be made on behalf of their children under Schedule 1 of the Children Act 1989.

Typically, these are often cases whereby the income of the absent parent is above the CMS statutory limit of £3000 per week or where the absent parent lives and perhaps also then works abroad.

If any of those particular circumstances apply, then the resident parent caring for the child or children is often left with no other option than to bring an application for financial provision under Schedule 1 of the Children Act 1989 – this is often simply referred to by lawyers then as a “Schedule 1” case.

The Law

Applications under Schedule 1 of the Children Act 1989 can be brought against a ‘parent’ by any one of the following:

o a parent,
o guardian,
o special guardian or
o any person in whose favour a residence order is in force.

‘Parent’ is defined as the biological parent or other persons who are parents by operation of the law. This would then also include a formerly married parent.

The application is made by filing Form A1, and then the parties must complete their financial disclosure by way of Form E1.

However, before making an application for a financial remedy you must first attend a Mediation, Information and Assessment Meeting (MIAM). At the MIAM an authorised family mediator will consider with you (and the other party if present) whether family mediation, or another form of non-court dispute resolution, would be a more appropriate alternative to court.

You must have attended a MIAM before making this application unless the requirement to attend a MIAM does not apply because the financial order you are applying for:

• is for a consent order; or

• you are exempt from the requirement to attend a MIAM. (Some exemptions you can claim for yourself, others must be certified by an authorised family mediator).

In special circumstances such as where domestic violence is involved, you may not need to attend a MIAM.

However, you will be asked to provide the judge with evidence (such as a police report to prove domestic violence has taken place) and may be asked to produce such evidence at any subsequent first hearing.

International Children

Since 18 June 2011, Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (“the Maintenance Regulation”) came into force.

Jurisdiction for making decisions relating to maintenance can be established under one of five different grounds as set out in Articles 3 to 7.

The default position is found in Article 3, which states that jurisdiction shall lie with the court where:

(a) the defendant is habitually resident; or
(b) where the creditor is habitually resident; or in the court with jurisdiction to entertain proceedings as to
(c) the status of a person (i.e. marital status) or
(d) parental responsibility, where the maintenance is ancillary to those proceedings (unless jurisdiction is based solely on nationality).

How does the court approach Schedule 1 cases?

The Court has discretionary powers and uses them by reference to a six point checklist set out at Section 4(1) of Schedule 1 of the Children Act 1989, which is very similar to the Matrimonial Causes Act 1973 Section 25 checklist applicable to financial relief cases in divorce proceedings, but more limited.

As set out by Section 4(1), the court must have regard to “all the circumstances of the case” including but not limited to:

(a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c) the financial needs of the child;
(d) the income, earning capacity (if any), property and other financial resources of the child;
(e) any physical or mental disability of the child;
(f) the manner in which the child was being, or was expected to be, educated or trained.

Is there an overlap between CMS and Schedule 1 financial provision?

The position was made clear by Holman J in Dickson v Rennie [2014] EWHC 4306( Fam).

In that case, it was held that the Court’s power to order top-up maintenance is only available where the CMS has assessed that the payer’s income exceeds the maximum maintenance assessment of £3,000 gross per week.

The recent case of Re TW and TM (Minors) [2015] EWHC 3054 (Fam) has also brought the issue to the fore, wherein it was clearly stated (in a ‘top up’ scenario) that:

“…the court has no power to make a contested order for periodical payments unless there has been, pursuant to s.8(6) of the Child Support Act 1981, an antecedent calculation by the secretary of state or his predecessor, the Child Support Agency, in the maximum amount as provided for in para.10 of sch.1 of that Act”

But, Schedule 1 applications are not solely limited to the issue of child maintenance; the court can make lump sum orders as well as property adjustment orders settling or transferring property.

Under Schedule 1 the court can also make orders for maintenance and lump sums for children over 18 in full time education or where there are special circumstances, such as a disability.

The court can also make costs orders in Schedule 1 proceedings, and Calderbank offers therefore have a role still to play in encouraging parties to make reasonable proposals in an effort to minimise their costs liability.

Conclusion

With the trend now for relationships being towards cohabitation rather than marriage there are increasing numbers of families who may need to call upon the provisions of Schedule 1 over and above maintenance from the CMS.

As this post hopefully demonstrates, the family court is more than ever before looking to use the Children Act in ever more creative and practical ways to support the welfare of children and not just for those families and children with extreme wealth.

Contact Us

For more details on this or any other family law matter, please do not hesitate to contact Andrew Wraith, Solicitor. Prism Family Law offers a free initial consultation. You can call us on 0191 269 6871 or email us via legal@prismfamilylaw.co.uk. You can also follow us on twitter and LinkedIn and Facebook for the latest news and views on family law.