(1) in divorce cases
When parents divorce the Court shall ‘have as its first consideration the welfare of any minor child of the family’. The parents may well have agreed how much will be paid as child maintenance or at least what contribution one will make towards the costs of the household of the other. If this cannot be agreed the parent with whom the child lives or the majority carer may apply to the CMS (Child Maintenance Service, which has replaced the CSA). See our notes on Maintenance. If an overall financial settlement is agreed an order will commonly be made which will record the agreed arrangement for child maintenance as a term of the Order.
The Court may make a school fees order, whether this is agreed or not, and in rare circumstances it may make a top-up maintenance Order.
It is very rare in divorce proceedings for separate capital claims to be pursued on behalf of a child. Usually, the child’s position is considered as forming a central part of the financial claims pursued by the parent with whom the child lives.
(2) where the parents are unmarried
Where parents are unmarried they will still be able to deal with maintenance by agreement or by an application to the CMS. Additionally, however, the parent with whom the child lives may apply under Schedule 1 of the Children Act 1989 for financial provision.
The Court can order maintenance payments, a lump sum payment or an order by which property is ‘settled’ on the resident parent for the benefit of the child until the child grows up.
The Court may order a non-resident parent to pay top-up maintenance but, in practice, these applications are rare and tend only to be made in ‘big money’ cases. The Court may make a school fees order, as in divorce cases.
The Court may make an order that the parent pays a lump sum for the child but, again, this provision is rarely used and tends only to apply in ‘big money’ cases.
What is far more common is for the Court to make an order by which it ‘settles’ property on the parent with whom the child is to live. Typically, this provision applies where that parent does not have sufficient resources to purchase a home for them self and the child(ren) and needs the other parent to make additional funds available for this purpose.
The funds that are ordered to be made available in this way are paid as a loan and not as an outright transfer either to the parent or the child(ren). As such, the monies paid are commonly secured by a charge against the property that is bought so that at some point in the future they will revert to the parent who provided them. This would typically happen when the youngest child reaches the age of 18 or leaves education. A difficult topic is whether the monies paid by the father should revert immediately if the mother forms a new relationship.
If an application is made to the Court under Schedule 1 of the Children Act, the Courts encourage the use of a procedure similar to that used in divorce cases for financial applications.