Schedule 1 Children’s Act 1989: Financial provision for children on separation

Couples living together outside of marriage or civil partnership continue to be the fastest growing family type in England and Wales. As of 2022, cohabiting couples represented 22.7% of the population. The rights of cohabiting couples on separation are however very different from the rights of divorcing married couples, and there is currently no specific legal protection for separating couples.

When a cohabiting couple separates, parents are often shocked to discover that their only entitlement is to child maintenance. There have been increasing calls for additional time-limited maintenance and other specific provision for parents to ensure the needs of any children can be met. There are however some other options available to parents on separation under Schedule 1 of the Children Act 1989, through which the court can make a number of orders, including:

1. Lump sum orders for children under 18 – for expenses incurred maintaining a child, such as clothing, transport or equipment. There is no limit to the number of lump sums a parent can apply for.
2. Provision of property for minor children – such that a property is either purchased by one parent for the occupation of the other and the children or a property is transferred from one parent to the other for use until the children are 18 or have finished secondary education.
3. Maintenance above the Child Maintenance Service assessment – in circumstances where a paying parent’s gross salary exceeds £156,000 per annum and so a ‘top up’ is required beyond the maximum CMS assessment.
4. Maintenance for educational expenses – such as nursery or school fees.

Claims can also be made under Schedule 1 of the Children Act 1989 for one parent to fund the cost of court proceedings on behalf of the other, where appropriate, so as not to prevent access to the court where needed.

It must be remembered that claims under Schedule 1 are made for the benefit of the child and not the parent. It is therefore the needs of the children which is the court’s priority, whilst also assessing the financial circumstances of both parents to determine whether any provision is appropriate. This means that it is highly likely that an order for the purchase of or transfer of property to one parent is likely to return back to the parent who provided it once the children are no longer minors.

Given the costs and delays seen in court proceedings, it is normally advisable to try to resolve such matters amicably and outside of court, such as in mediation, collaborative law or via solicitors. However, there is sometimes no option but to start court proceedings. The prospects of a court application should be considered carefully before any application is made, with the benefit of early legal advice.