The Children Act 1989 is one of the key legislations in family law. This act provides a comprehensive framework for the care and protection of the children. The focus of Children act 1989 to ensure the welfare of the child is of the paramount consideration until the child’s 18^th Birthday.

The Children Act 1989 provides the duties which must be carried out in respect to a child by the parent, the local authorities, the courts and other agencies in the United Kingdom to ensure that children are safeguarded, and their welfare is promoted. The Children Act 1989 is also the legislation which details the requirements when making applications for the family court in respect of child custody or child contact.

Under the Schedule 1 of the Children Act 1989 it is possible to obtain financial support. Schedule 1 contacts the courts powers to make financial orders for children. Schedule 1 of the Children Act 1989 covers 3 situations:

• Orders that a parent pay maintenance or lump sum or transfer property to children whilst the child is under the age of 18;
• Orders for periodical payments or a lump sum where the first time an application is made when the child is aged over the age of 18; and
• Alteration of maintenance agreements containing financial provision for a child, this could take place either during the joint lives of the parents of following the death of one of them.

As the schedule 1 makes it clear that any order made to the applicant is purely for the benefit of the child.

A claim for financial provision on behalf of the child can be made by a parent, guardian or special guardian, or any person who is names on the child arrangements order as a person with whom the is to live with. Para 1(1).

A child who has reached the age of 18 is also able to make an application for an order under paragraph 2(1) of schedule 1 if:

a) If they would be receiving instruction at an educational establishment or undertaking training for a trade, profession or vocation; or
b) There are special circumstances which justify the making of an order.

The court can also make an order under schedule 1 Children Act 1989 at any time it makes, varies or discharges a special guardianship order or any provision in a child arrangements order under paragraph 1(6). The court can also make a Schedule 1 Children Act 1989 order at any time where a child is a ward of the court under paragraph 1(7).

The respondent to a schedule 1 children Act 1989 order will be the other biological parent. It is not limited to unmarried partners and extends to married partners where the child concerned is a child of the family.

For a schedule 1 order to be made there must be a connection between the child and the respondent. This connection must either be biological or by reference to the respondents married or civil partner status.

An order cannot be made against a same sex partner where there is no biological relationship or civil partnership. A child over the age of 18 can make an application against either or both parents providing they do not live together and there was no order in force with regards to the child reaching the age of 16.

Prior to making an application under Schedule 1 the applicant will be required to attend mediation unless an exemption applies. Once an Mediation Information and Assessment Meeting has been attended to or an exception applies, the application will need to be made on Form A1. The courts also refer to this application as a financial remedy application. The completed Form A1 must then be sent to the family court together with an application fee of £215.00.

Once the court received the application for a Schedule 1 under Children Act 1989 they will then issue the same and within 4 days the application will be sent to the respondent together with the notice of hearing and a blank Form E1. The purpose of the Form E1 is for the parties to the application to complete their financial application. The Form E1 must then be completed and filed with the court within 14 days from the date the original application was issued. Following the completion of the Form E1 no party will be allowed to request further disclosure until the first hearing.

The first hearing date will be fixed no earlier than 4 weeks from the application and no later than 8 weeks from when the application under schedule 1 Children Act 1989 was made.

The court must have regard to all the circumstances of the case when considering a schedule 1 application. The considerations for the court are listed under section 4(1) of the schedule and include:

• The income, earning capacity and financial resources which each person has or is likely to have in the future;
• The financial needs, obligations and responsibilities each person has or is likely to have in the future;
• The financial needs of the child
• The income, earning capacity, property and financial resources of the child;
• Any physical or mental disability of the child, and
• The manner in which the child was being or is expected to be educated or trained.

Under a schedule 1 application the court has the power to make a variety of orders which could include:

• An order for lump sum;
• An order for property transfer or settlement of property, and
• Periodical payments which is also known as maintenance.

A lump sum order can be made for the benefit of a child. Quite commonly an application for a lump sum order is made in cases where the parents are unmarried and are unable to access the lump sum order under the Matrimonial Causes Act 1973. The lump sum order under a Schedule 1 Application differs from a lump sum order under the Matrimonial Causes Act 1973 as under the Schedule 1 Application the courts can make many lump sum orders and is not just restricted to one.

Lump sum orders can be made to purchase a vehicle if needed for the child, for furnishing the home for a child’s needs and can even be applied for medical and dental fees. Where a lump sum order for the benefit of a child has already been obtained you can still make other applications for the benefit of the children.

The transfer of property order under Schedule 1 Children Act 1989 is designed to meet the housing needs of children. Commonly with such an order the former matrimonial home is transferred to the parent who responsible for the care of the children until the children become adults. With this order the property which is transferred will usually be returned to the rightful owner when the children attain the age of 18 years unless exceptional circumstances apply. The parent to whom the property is transferred to will be holding the property to borrow on trust in order to ensure the children’s housing needs are met in order to adequately care for the children.

Under a Schedule 1 Children Act 1989 periodical payments are used to meet the costs of children’s school needs, provide top up maintenance or to address the costs of a child’s disability. These payments must not be confused with child maintenance as these are not awarded for general maintenance of children. General maintenance payments for children fall under Child Maintenance and are governed by the Child Maintenance Service or the Child Support Agency.

It is important to note that the family court may only award general maintenance payments such as top up payments for children where the parent who is making the payments exceeds the maximum threshold income for child maintenance. The maximum threshold varies on whether the Child Support Agency was involved, or the Child Maintenance Service was involved. For the Child Support Agency, the maximum threshold is a net income of £104,000.00 per annum whereas for the Child Maintenance Service this is £3000.00 gross per week.

Periodical payments for school fees can be directed by the court to begin from the date of the application made under Schedule 1 Children Act 1989. In contrast periodical payments for top up payments can be dated for 6 months prior to the application of the date of the original calculation.

The Case of KS v ND (Schedule 1: Appeal: Costs ) [2013] highlighted that the general rule for Children Act 1989 applications of “no order as to costs” does not apply to Schedule 1 Children Act 1989 proceedings. As a result, a one party could be ordered by the family court to pay the other parties’ costs. In the above case of KS v ND, the court ordered the mother who made an application to pay £13,000.00 in costs. The judge allowed the mother to pay these costs in 26 monthly instalments in the sum of £500.00. within this case the parties involved had racked up huge legal bills during the proceedings. The case is therefore a clear example that specialist advise should always be obtained at the outset of your separation in order to ensure you are not faced with a cost order against yourself.

It is extremely important to note that a Schedule 1 application issued without any merit is likely to attract an adverse costs order. Furthermore, an applicant who succeeds with a Schedule 1 application will by no means be awarded their costs. Where there are issued with the litigation conduct on behalf of the applicant there is a risk that they may have to fund all or part of their own legal fees.