Schedule 1 under the Children Act – child maintenance ‘Top Up Orders’

At Blanchards Law we have come across many occasions whereby an imbalance of earnings between parents can severely affect the primary carer of the children, while the absent parent lives a far more luxurious lifestyle.

Child maintenance can be dealt with in various different ways

• within a financial order
• by agreement between the parents 
• via the Child Maintenance Service.  

It is important to know that any agreement in respect of child maintenance that is made within a financial order, is fixed for a minimum of 12 months, after 12 months of the date of the Order, either parent can apply to the Child Maintenance Service (CMS), effectively ousting that part of the Order. This does not affect any of the other parts of the Order, if neither parent applies to the CMS the Order continues intact.  

Where one parent is a significantly high earner, the CMS is only able to calculate maintenance on earnings up on a gross weekly income of £3,000 per week (£156,000 per year). 

If the other parent earns more than this, the lower earner may apply to the Court for a ‘Top Up’. Only when the Child Maintenance Service (CMS) has carried out a ‘maximum assessment’ can a child periodical payment ‘Top Up Order’ be made against the non-resident parent.

Schedule 1 to the Children Act 1989 enables financial orders to be made for the benefit of the children up to the conclusion of their full-time secondary education.

This can be useful to a parent not married to their partner, meaning they would be unable to seek a financial order following their divorce. Statistically, the number of children being born to unmarried parents is now almost equal to those children born into married couples. For this reason, there is an increasing focus to ensure financial provision is available to the parent of those children if the relationship comes to an end.

It is also useful for parents who are assessed by the CMS at the maximum level.

Various Orders can be applied for under Schedule 1

• Periodical payments (for yourself on the child’s behalf or to the child themselves)
• Secured periodical payments (for yourself on the child’s behalf or to the child themselves)
• Lump sum (for yourself on the child’s behalf or to the child themselves)
• Settlement of property to you for the benefit of the child
• Transfer of property to you on the child’s behalf or to the child themselves.

If the application is bought to Court by the child they can only apply for periodical payments or a lump sum. A child can only apply if they have reached the age of 18, but only for a lump sum or periodical payments if they are or will be in education or training for a trade, profession or vocation, or if there are special circumstances which would justify making the order.

The application is usually made by the parent with care of the children. This can be a parent, guardian, or anyone named in a Child Arrangements Order with whom the child is to live.

The child must live with the Applicant and be under the age of 18. A lump sum claim can be made against a parent that will enable you, as the applicant, to meet any liabilities or expenses incurred in connection with the birth of your children or maintaining your children. The law allows the parent with care to make an unlimited number of applications.

A claim for a lump sum against the non-resident parent tends to cover the cost of single items of a capital nature, including:

• A home
• The cost of moving to a new house
• Furnishing a property
• Buying a car

The Court has wide discretion, and it is possible to apply for a lump sum for more specific purposes, such as covering a debt, property repairs or even a holiday.

The Court will consider several factors for Schedule 1 to the Children Act 1989 applications including, but not limited to:

• The financial resources available to both parents
• Any other responsibilities that the parents may have, such as their responsibility towards any other children
• Any disabilities of the subject child
• The financial requirements of the child
• The original intentions of the parents in relation to how the child would be raised, to include matters such as private education

In order to make a decision, the Court will expect both parties to fully disclose their financial resources, usually under a Form E1.

The Court’s power also extends to making orders for periodical payments and lump sums for children over the age of 18 in full-time education or where there are special circumstances e.g. a disability. Child maintenance orders can be made up until a child reaches the age of 25 and in circumstances where the child has any special medical needs or disabilities that could affect their ability to live and earn independently, this could be extended to as long as the child lives with the claiming parent. 

The size of the award takes into account the non-resident parent’s resources, in addition to the responding parent’s standard of living, which is relevant to the size of the award. In more modest cases, orders can still be made but the nature and size of the award will reflect the pot that is available. 

Schedule 1 of the Children Act 1989 is not only limited to Top Up Orders. The court also has the power to include orders (outside of the CMS) in the following circumstances:

1. to meet the costs of a disability 
2. to fund tertiary education costs 
3. to meet the costs of any specialist intervention required for the child (counselling/respite care/mentors etc) 
4. a “carer’s allowance” e.g. to provide for child care costs/a nanny, running a car to transport the child etc.

It is important to note that any lump sum payments in respect of property, whether this is an outright purchase or a contribution towards a deposit, are repayable to the other parent upon the child maintenance order expiring. Lump sums for other items i.e vehicle/furnishing/education/driving lessons and so forth are not repayable. 

There is sometimes a reluctance to pursue Schedule 1 claims in cases where resources are limited, because of the risk of costs. The general rule for Children Act 1989 applications is that there is “no order as to costs” but this rule does not apply to Schedule 1 proceedings, which means you could be ordered to pay the other party’s costs in particular circumstances, likewise they could be ordered to pay your legal fees.

If you believe you could be entitled to make an application for additional maintenance or lump sums for the benefit of your children please do not hesitate to contact make an appointment for a free consultation with one of our knowledgeable members of staff who would be happy to discuss this with you.