Schedule 1 claims are on the rise and they have a broader application than many practitioners realise. Samantha Hillas and Ros Bever provide a practical guide
In the last 20 years, the number of cohabiting couples in England and Wales has more than doubled to over 3 million. Just over of 1.25 million of those cohabiting families have dependent children; half of them have two or more children (ONS, 2015).
Add to that the statistic that cohabiting couples are much more likely than their married counterparts to separate before their first child reaches the age of 5 (27 per cent versus 9 per cent according to the 2013 IFS Report R87) and it becomes clear why Schedule 1 claims are on the increase.
Despite the rise in the number of potential claimants, however, the claims of unmarried partners (whether parents or not) often put the family lawyer in something of a tailspin. There is no all-encompassing legislation to assist, unlike Matrimonial Causes Act 1973 or Civil Partnership Act 2004, and it is necessary for practitioners to have a detailed understanding of potential claims under Trusts of Land and Appointment of Trustees Act 1996 / Married Women’s Property Act 1882 as well as the jurisdiction in respect of financial provision for children.
Financial provision for the vast majority of children will be dealt with by the Child Maintenance Service (CMS) (1.2 million live cases as at December 2015) but there will be cases which fall outside of the CMS (where a parent lives overseas, for example) or where the court may make additional maintenance provision or provide for the payment of school fees, in accordance withsection 8 of the Child Support Act 1991. Furthermore, there may be capital claims on behalf of children for which jurisdiction remains with the court, pursuant to Schedule 1 Children Act 1989.
In March this year, Ros Bever and I presented seminars in Manchester and London for the Law Society’s Family Section on Schedule 1 claims. In our discussions with practitioners afterwards, it became clear that Schedule 1 cases are generally thought to be the remedy of choice for the children of Premier League footballers and oligarchs, always in London, always at the High Court, and always involving resources with more digits than are seen in the ‘typical’ case passing across the desk.
As a result, many practitioners’ working knowledge of Schedule 1 can be rusty and opportunities might be lost by failing to make effective use of the legislation. There are Schedule 1 cases being dealt with by District Judges across England and Wales every day which involve resources on a much more modest scale and which are making financial provision for children to meet needs which fall outside those provided for by the CMS.
This accompanying material is therefore intended to be both a practical guide – who can apply, when to apply and procedural tips on how to apply – as well as a summary of the guidance which can be gleaned from the reported authorities in terms of the types (and quantum) of orders the court is likely to make.