Part One of this series of articles provided an overview concerning the work of the Child Maintenance Service (CMS). This government institution is equipped to handle the vast majority of child maintenance matters and was created with the express purpose of limiting the involvement of the Family Court. There are limitations, however, to what the CMS can accomplish. In this article, we shall examine the child maintenance arrangements which the Family Court is able to impose by virtue of Schedule One of the Children Act 1989.
Typically, Schedule One will be relied upon for the following reasons:
a) The child concerned as too old to be categorised as a “qualifying child” by the CMS.
b) The non-resident parent resides abroad and does not work for the Diplomatic or Overseas Civil Service, the British Armed Forces, or a UK Registered Company.
c) The non-resident parent earns a gross weekly income in excess of £3000.
The Family Court may also assist those caring for a child who suffers from a disability. This is achieved through an order that the child be provided with periodical payments in excess of their regular CMS maintenance. Payments of this nature are limited to the value of any expenses which arise as a consequence of the child’s disability.
Lastly, the court possesses what is called an inherent jurisdiction to make orders for child maintenance, as distinct from the provisions of Schedule One. However, the circumstances in which such an order would be appropriate have become more limited since 1991. For example, while determining the division of matrimonial finances following a divorce, it is open to the court to include the cost of child support within a Global Maintenance Order. Child Maintenance of this nature will only subsist for a year before a parent can request that the CMS take over and make their own assessment as to the appropriate level of child support.
Who can apply?
It should first be borne in mind that the full range of child maintenance orders are only applicable to children under the age of 18. Certain maintenance arrangements can be made for those who are older, but only where the child is undertaking further education or training, or where the court determines that there are special circumstances to justify continued maintenance.
Any parent or guardian may make an application under Schedule One for their child, as can anyone who has been granted a Live-With Order in respect of that child, so long as the order is still in force. The child themselves can also make an application under Schedule One, though they must first be given permission from the court.
It may be important to note that the responsibility to pay child maintenance under these provisions is not necessarily limited to biological parents. It is possible for an order to be made against a non-resident step-parent.
What details will influence the court’s decision?
The courts have a broad discretion as to how they will exercise their powers, so that their decisions may be tailored to the specific circumstances of the family involved.
When determining an application under Schedule One the court must have regard to all the circumstances of the case. In particular, they will be concerned about the following details:
a) The present and future financial position of:
(i) the child’s parents,
(ii) the Applicant, and
(iii) any other person for whom the court proposes to make an order.
b) The present and future financial needs and obligations of:
(i) the child’s parents,
(ii) the Applicant, and
(iii) any other person for whom the court proposes to make an order.
(iv) the child concerned
d) The child’s own income, earning capacity and finances.
e) Whether the child suffers from a disability.
f) How the child is being educated/trained and how training is expected to proceed in the future.
When the courts consider applications under Schedule One the welfare of the child is not their “paramount consideration”. Nonetheless, concern for the child’s welfare is inevitably a constant influence on the outcome of the case.
The courts have expressed that the question of whether or not the child’s conception was planned bears no great significance on how child maintenance case will be decided. Similarly, the duration and nature of the parent’s relationship is of little relevance.
Assuming the non-resident parent has sufficient means, and the resident parent’s resources are lacking by comparison, the court may insist that the non-resident parent provide suitable accommodation for the resident parent and the child, for the duration of the child’s minority.
Applications where the non-resident parent has a gross income of £156,000 per year.
Where the non-resident parent’s income exceeds the upper limits of the CMS’ calculation mechanism, then it is possible to apply to the court to top-up the CMS maintenance.
The court will be eager to ensure that the child is brought up in circumstances which are comparable with the non-resident parent’s wealth and standard of living. As mentioned above, this may mean that the non-resident parent will be ordered to provide a home for the child and their resident parent. What the court will not do is order that maintenance be paid so as to confer a direct and separate benefit to the resident parent. For instance, often where the court stipulates that a non-resident parent must provide funds for the purchase of a house for their child, matters will be arranged so that the property reverts to the non-resident parent once their child has reached a certain age.
Enforcement of Maintenance Orders Abroad
Where an Application is made under Schedule One because the non-resident parent is abroad an important consideration is the question of how the order is to be enforced.
Those seeking to enforce a maintenance order abroad should first get in contact with the HMCTS Maintenance Enforcement Business Centre via 020 7424 8657 (London) or 0300 123 3034 (England). They will provide you with the appropriate forms which will then be provided to the REMO Unit, a Ministry of Justice department who are responsible for lodging your application with the relevant foreign courts.
There are certain circumstances in which an overseas court may refuse to reciprocate an order for maintenance, namely:
a) It is concluded that the Family Court England and Wales should not have heard the matter, because they did not have jurisdiction under the Hague Convention.
b) Registration of the order would be contrary to the demands of public policy.
c) The order was obtained through procedural fraud.
d) The present order is incompatible with a pre-existing maintenance order.
e) The non-resident parent did not participate in the court proceedings in England and Wales and was not properly made aware that the case was taking place.
f) The foreign court is asked to enforce a maintenance order in spite of the fact that the non-resident parent does not live in their jurisdiction; he/she merely own property there.
It is also possible for the overseas court to vary the terms of the original order and determine how maintenance payments are to be made.
The following are all the countries with whom there are (presently) arrangements for the reciprocal enforcement of maintenance orders:
ALBANIA
ALGERIA
ANGUILLA
ANTIGUA
AUSTRIA
AUSTRALIA
COCOS (KEELING) ISLANDS
BAHAMAS
BARBADOS
BELIZE
BELGIUM
BERMUDA
BOSNIA AND HERZEGOVINA
BOTSWANA
BRAZIL
BRITISH SOLOMON ISLANDS
BRUNEI
BULGARIA
BURKINA FASO
CANADA
ALBERTA
BRITISH COLUMBIA
MANITOBA
NEW BRUNSWICK
NEWFOUNDLAND AND LABRADOR
NORTHWEST TERRITORIES
NOVA SCOTIA
NUNAVUT
ONTARIO
PRINCE EDWARD ISLAND
SASKATCHEWAN
YUKON TERRITORY
CAPE VERDE
CAYMAN ISLANDS
CENTRAL AFRICAN REPUBLIC
CHILE
CROATIA
CZECH REPUBLIC
CYPRUS
DENMARK
DOMINICA
ECUADOR
ESTONIA
FALKLAND ISLANDS & DEPENDENCIES
FIJI
FINLAND
FRANCE
GAMBIA
GERMANY
GHANA
GIBRALTAR
GREECE
GRENADA
GUATEMALA
GUYANA
GUERNSEY
HAITI
HOLY SEE
HONG KONG
HUNGARY
ICELAND
INDIA *
IRELAND –
ISLE OF MAN
ISRAEL
ITALY
JAMAICA
JERSEY
KENYA *
KIRIBATI
LATVIA
LESOTHO
LITHUANIA
LUXEMBOURG
MACEDONIA (Excluding Yugoslavian Republic)
MALAWI
MALAYSIA
MALTA
MAURITIUS
MEXICO
MONACO
MONTENEGRO
MONTSERRAT
MOROCCO
NAURA
NETHERLANDS
NEW ZEALAND
NIGER
NIGERIA
NORFOLK ISLAND
NORWAY
PAKISTAN
PAPUA NEW GUINEA
PHILIPPINES
POLAND
PORTUGAL
ROMANIA
ST CHRISTOPHER (KITTS) AND NEVIS
ST HELENA
ST LUCIA
ST VINCENT
SERBIA
SEYCHELLES
SIERRA LEONE
SINGAPORE
SLOVAKIA
SLOVENIA
SOUTH AFRICA
SPAIN (includes the Canary Islands)
SRI LANKA
SURINAM
SWAZILAND PROTECTORATE
SWEDEN
SWITZERLAND
TANZANIA (Except Zanzibar)
TRINIDAD AND TOBAGO
TUNISIA
TURKEY
TURKS AND CAICOS ISLANDS
TUVALU
UGANDA
UKRAINE
UNITED STATES
UPPER VOLTA
URUGUAY
VIRGIN ISLANDS
ZAMBIA
ZANZIBAR
ZIMBABWE
Written by George Hallam-Attree paralegal at London Family Solicitor.