Divorce & Separation: What is Schedule One?

 

“Schedule One” in a family law context relates to financial claims being made for a child.  It refers to Schedule One of the Children Act 1989.  Courts will consider support for children, usually up to the point they leave university. Extended support beyond that timeframe is possible where there is significant dependency arising, for example, from the child’s additional mental or physical needs.

Who makes an application and against whom?

A claim is made by “an applicant” who is:

• the legal parent of the child
• usually living in England or Wales; and
• Usually having more of the responsibility for the care of the child from the other parent (this is not a requirement but provision for one parent from the other who is the main carer is rare and is usually only at low levels).

The claim is made against “a respondent” who is:

• Also the legal parent of the child
• Usually living in England or Wales; and
• Does not have care of the child; or cares for them only to a lower extent (usually).

A child also has the possibility of pursuing a claim themselves and this is usually done where they are over 18 and, for example, looking to fund their university costs.

What is the claim for? 

These claims usually encompass some or all of:

1. housing for the child (almost always by way of a loan, with the property then reverting to the respondent at the end of the child’s time at university)
2. furniture and other equipment for that home or other capital needs
3. provision of a car
4. educational costs
5. costs relating to the child’s disability
6. general maintenance (but see below for how this fits around the child maintenance service)
7. help with legal costs (also see further comments below)

How does a Schedule One claim fit in?

Claims:

• Are generally only made if a relationship breaks down
• Don’t depend on whether the parents have been in a long term relationship or have lived together – many of these claims follow one night stands or otherwise unplanned pregnancies
• Don’t depend on whether the parents have married (Schedule One claims between formerly married parties are rare: they are more complicated and harder to pursue then claims within the divorce law system)

They are usually about one parent:

• Simply not having the resources to provide a reasonable home for the child, that bears some sort of relationship to the standard of living of the other parent; or
• Making a claim for a contribution to the costs of the child’s upbringing more in line with their resources and capacity to do so (than simple child support).

The claims will therefore sit alongside:

• Any claims between former cohabiting partners (dealt with under the Trusts of Land and Appointment of Trustees Act 1996, or “ToLATA”); and
• Claims dealt with by the child maintenance service.

Schedule One vs. the child maintenance service

The fit is complex, but briefly:

• You can’t simply pursue a claim for general maintenance from the court without first visiting the CMS or at least establishing that the CMS has no jurisdiction for your case.
• The court is prohibited from topping up arrangements through the CMS, however desperately they are needed and however fair this would be, unless the respondent’s income is greater than £3000 a week before taxes but after pension contributions.

This can leave a lot of applicants without the support they need, perhaps waiting for the CMS to progress their case.  So managing this application well can be very important.

Claims for legal fees

These cases are legally technical (we co-authored the leading textbook for professionals which runs to about 600 pages), meaning that some applicants could struggle to provide financially for their children, even if the other parent is wealthy, simply because they don’t have the means to bring the claim.  However, over the past 15 years, the courts have been increasingly used to making orders, usually early on in the case, that the respondent help out, in effect by funding the applicant to bring the case against them.  There is a whole sequence of hurdles for the applicant to overcome, But absence of resources for legal costs is no longer necessarily a barrier to bringing a case.

What to do next?

These situations are really not easy.  Very often it is only at the point of relationship breakdown, that a couple might learn they have very different expectations over the relationship or assumptions about the level of financial support that would be fair.  Being projected into hotly contested litigation where tens or even hundreds of thousands of pounds is spent (money that would otherwise have gone a long way to meeting the child’s needs) is all too common.  A better way is likely to involve getting really early advice, planning around what is likely and finding a way to get into supported dialogue together to try to make the best of the situation.

The family law team at FLiP have a lot of experience in this work, meaning that we would expect to be able to give you a realistic assessment about your legal position early on.

• If appointed as your advising lawyer, we would help you strategically to plan how to manage the situation safely.  Our focus will very much be on seeking out the early settlement: fair provision and at contained cost within an appropriately respectful process.
• As your mediator, we are appointed by work with both of you, aligned to neither, but promoting the dialogue from which a common understanding can emerge.

Relationship support from our counselling services will often provide the means of calming the situation and seeing better the other person’s view from which this sort of progress is possible.