S3 Episode 12: Schedule 1 of the Children Act 1989
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Nicholas Allen KC and Michael Allum
Further information
This is the final episode in Season 3 and we wanted to finish with a bang! Nicholas Allen KC (29 Bedford Row) and Michael Allum (The International Family Law Group LLP) join us to talk about applications pursuant to Schedule 1 of the Children Act 1989.
Michael and Nick start by considering the line between payments that are properly for the benefit of the child and those which a court is likely to consider to be solely for the benefit of the parent (for example life insurance premiums or pension premiums). Nick mentions the comments of Baroness Hale in a recent interview with Sam Hillas KC for the Financial Remedies Journal, where the Baroness says that Schedule 1 reminds her of the position before White v White for wives: https://financialremediesjournal.com/content/interview-with-baroness-hale.0a4bcf411d6346ba8dbdbdc4a9adb368.htm.
They go on to examine the difference between Schedule 1 cases and Matrimonial Causes Act 1973 cases. They talk about how the resources of the receiving party, or their new partner, are unlikely to weigh in the balance in the same way as they do under the MCA. Michael highlights that there are no sharing or compensation claims under Schedule 1.
Michael tell us that to obtain provision after the child reaches their majority the Court is really considering whether there is a dependency, rather than a vulnerability. Michael mentions UD v DN (Schedule 1, Children Act 1989; Capital Provision) [2022] 2 FLR 308 where the Court of Appeal allowed an appeal against Williams J’s long-term property order in the children’s favour. He then talks about the exceptional case of TK v LK (Rev2) [2024] EWFC 71 (02 April 2024), https://www.bailii.org/ew/cases/EWFC/HCJ/2024/71.html where the Court made an order for the housing fund to remain with the child. But he says that is incredibly rare indeed, save for by consent.
Nick and Michael discuss the rare occasion when Schedule 1 claims can be brought after parties have been divorced and they reference PK v BC (Financial Remedies: Schedule 1) [2012] 2 FLR 1426, and MB v KB [2007] 2 FLR 586).
We move on to a discussion of what constitutes a capital payment, and what expenses should be covered by way of maintenance. We discuss the decision of Moor J considering an appeal against a series of lump sums made by Her Honour Judge Reardon in Stacey v McNicholas [2023] 2 FLR 321. Nick points out that strictly speaking lump sums are for strictly one-off expenditure, not for day-to-day living expenses. Michael discusses Dickson v Rennie [2015] 2 FLR 978, and that capital lump sums are not supposed to be used to top-up a CMS assessment.
We talked about the fast-track procedure in the FPR 9.20 —(1) If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.
Michael talks us through the development of the jurisprudence in respect of working out the appropriate level of top-up payments, through to the current formulation in James v Seymour [2024] 1 FLR 614 which applies unless you are considering a Household Expenditure Child Support Award, the ‘HECSA’ as set out in Collardeau-Fuchs v Fuchs [2023] 2 FLR 345.
We finish with Michael and Nick talking us through LSPO and the likelihood of costs awards.
Join Resolution’s family law experts in our Podcast series
