By 2004, 42% of all children born in England and Wales were born to unmarried parents.
Under Schedule 1 of the Children's Act 1989 the Court has power to make financial orders for the benefit of children upon application of a parent. It is of particular benefit for children whose parents were either not married or were civil partners and were therefore unable to seek ancillary relief for them under the Matrimonial Causes Act 1973, or the Civil Partnership legislation. It can also be used by adult or near-adult children themselves to seek financial provision.
The orders which the court can make are as follows:-
1. Periodical payments and secured periodical payments order to the Applicant for the benefit of a child.
2. Lump sum to the Applicant for the benefit of the child or to the child himself
3. A settlement of Property Order for the benefit of the child
4. A Transfer of Property Order to the Applicant for the benefit of the child.
Persons entitled to make an application are:
1. the parent
2. a guardian of the child
3. any person in whose favour a Residence Order is in force with respect to the child.
Once the Court has made an Order against a parent with respect to a child it can make a further Order in respect of the same child against that parent for periodical payments, secured periodical payments or lump sums. However, it cannot make a further Order for the settlement of transfer of property. Essentially there is only one bite at the property cherry.
An Order for periodical payments can be backdated to the date of the application but cannot normally, in the first instance extend beyond the child's 17th birthday unless the Court considers it right in the circumstances of the case to specify a later date. Where the Court specifies a later date, the Order cannot extend beyond the child's 18th birthday unless that child was receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or there are special circumstances which justify the making of an Order going beyond the child's 18th birthday.
It should be noted that an Order made against one parent payable to the other parent ceases to have effect if the parents live together for more than six months.
It is possible for an adult child to make an application for periodical payments or a lump sum order where that child has reached 18. The Respondent's to such an application are one or both parents and it should be noted that no order can be made when the parents of the applicant are living together with each other in the same household.
Normally, it is not possible for the Court to make an Order for maintenance for a child where the CSA has jurisdiction. However, there are circumstances which enable an application for periodical payments to be made under Schedule 1, i.e. Consent Orders, a topping up of a CSA maintenance calculation, payment of school fees and expenses connection with a disability.
It should be mentioned that the Court has power under Schedule 1 to transfer a secure tenancy outright into the sole name of the caring parent. Such an Order is for the benefit of the child, even though the child has no legal or beneficial interest in the property.
Where a Court makes a transfer of property or a settlement of property Order it will normally only give the minor a life interest in the property and upon the child reaching majority, the property will revert to the owner of the said property.
Consequently, features of a settlement accordingly are: provision is made for a home for the child, a trust deed is prepared and whilst the child is in the care of the Applicant, the Applicant should have the right to occupy the property to the exclusion of the Respondent and without the obligation to pay rent. The Applicant's cohabitation or remarriage would not result in an automatic reversion of the property to the Respondent, although the Court would be able to consider the position on occurrence of those events. The Trustees would normally have power to sell the original house and purchase a new one on the same terms. Further, the Applicant should have the right to buy the reversion at the end of the term.
Normally when Courts consider making a settlement of Property Order, they consider the child's welfare, the nature of the parents' relationship, the father's present standard of living. Further there is a statutory check list where the Court is required to have regard to all the circumstances of the case, including the income, earning capacity, property and other financial resources which each parent (or other Applicant) has or is likely to have in the foreseeable future, the financial needs, obligations and responsibilities which each parent (or other Applicant) has or is likely to have in the foreseeable future. The resources of a parent's partner are ordinarily only relevant to the extent that parents need to meet their needs from their own resources are diminished. The financial needs of the child, the income earning capacity and other financial resources of the child, any physical or mental disability of the child and the manner in which a child was being or was expected to be educated or trained.
There is still a great gap between the entitlement of a wife as opposed to an unmarried mother. Last year the Law Commission published its paper "Cohabitation, the Financial consequences of Relationship Breakdown" It set out its recommendations in view of concerns that the area of property/trust law and Schedule 1 applications was difficult to understand and expensive to litigate.
There have been many cases recently which have been referred to Court and it is therefore important that you obtain legal advice as soon as possible.
Richard Hill
rhill@batchelors.co.uk