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Schedule 1 – To the Children Act 1989 – Capital Provision

Have you heard of this piece of family legislation?  Probably not.  Under this Schedule the Court can make capital orders in addition to periodical payment orders (maintenance) and such capital orders are usually made in relation to the children of cohabitants or former cohabitants.  (People who marry or enter into Civil Partnerships can seek financial remedy at the end of their relationship under a different piece of legislation namely either The Matrimonial Causes Act 1973 or The Civil Partnership Act 2004).
It is important to note that it is possible for a former spouse or civil partner who has finalised their own financial claims under The Matrimonial Causes Act but not those of the children to make an application under the Schedule.

What can the Court Order?

An Order can be made for a lump sum payment for the purpose of meeting the cost of expenses relating to:
1.    The birth of a child
2.    Maintaining the child
The expenditure must have been “reasonably incurred before the making of the Order”.
A lump sum can be paid in installments.
Provision can be made for future expenditure.  The Court has a wide discretion in deciding how to exercise its powers in respect of this.
Examples of Cases where the Court has Ordered lump sum payments
1.    The provision of a car to transport a child
2.    A sum to be invested to pay for future school fees
3.    The furnishing and equipping of a house purchase for the benefit of a child
4.    The funding of rental payments
It probably goes without saying that reported cases have tended to involve very wealthy parents.

Who can make the application?

The following people can make the application:
1.    A parent
2.    A step-parent
3.    A guardian or special guardian
4.    Any person who has a Residence Order in favour of a child
5.    A child if over the age of 18 years whose parents are separated and if that child is in education or training.
The Act defines “parent” in detail and the writer does not propose to go into this further within this article but suffice to say that if you as a non-biological parent have lived with someone outside of marriage or a civil partnership then you are not a parent or step-parent for the purpose of this Schedule.

Factors to be considered by the Court

The Court will have regard to the following factors including:
1.    The income, earning capacity, property and other financial sources each party has or is likely to have in the foreseeable future
2.    The financial needs, obligations and responsibilities that each party has or is likely to have in the foreseeable future
3.    The financial needs of the child
4.    The income, earning capacity if any, property and other financial resources of the child
5.    Any physical or mental disability of the child
6.    The manner in which the child is being or was expected to be educated or trained.
There is specific guidance in relation to step parents and there are additional factors laid down to which the Court must have regard before making an Order against a step-parent.

Housing

Again, reported cases involving housing have tended to involve very wealthy parents.  Under this Schedule, the Court may make an Order in respect of property including Orders for the transfer or settlement of property to either the applicant for the benefit of the child or to the child themselves.
Tenancies may be transferred from joint names of parents into a parents sole name for the benefit of a child.
The Court can make Orders restraining dispositions of property.
The provision of a home usually lasts as long as it will benefit the child.
If you think that you would benefit from advice on this or indeed on any family related matter please contact us today.