Child maintenance responsibilities enforced in China with a Schedule 1 application

Case report: Confidential

Some parents will do anything to try and avoid paying their share of child maintenance, even moving to the other side of the world.  But this does not mean that they are beyond the reach of English laws which are there to protect children in the event of relationship breakdown.

Family lawyer Linda Pope, of Miles & Partners in London, recently helped a mother to obtain financial maintenance from their father who had relocated to China.

Background

The mother and father had been in a relationship for over 15 years. They had three children, lived together in a property which mother had rented for many years previously, and were engaged but had never married.  In August 2018 the father, who is a British citizen, left the UK to live and work in China, without telling the mother or their children.

He refused to make any financial provision for the youngest child who was under 18 years old. He also contacted the Child Maintenance Service to say he was no longer living in this country and so was out of their reach.  The Child Maintenance Service only has jurisdiction in the UK, so made a maintenance assessment of zero and, because of this, the father believed he was complying with his legal responsibility.

After being recommended by a friend, the mother contacted Linda Pope in Spring 2019 to explore whether there was any other way to obtain financial support.  She had not received any money from her former partner since August 2018, and her financial circumstances were deteriorating rapidly.

Schedule 1 applications

Under Schedule 1 of the Children Act, the British Courts have the power to make a financial order on behalf of children under the age of 18.  The court’s power also extends to children over the age of 18 if they are still in full time education or where there are special circumstances, for example when a child has a disability.

The court can make an order for a lump sum payment for items such as a bed, TV, computer, bike, medical and therapeutic treatment not available on the NHS. The parent with care can also claim for any debts accrued as a result of the non-payment of maintenance and their legal expenses. They can claim for periodical payments (child maintenance), or even the settlement of property (transfer or purchase) for the benefit of a child although this usually reverts back to the non-resident parent when the child reaches their majority or a further order of the court.

In a case where there is more money and the non-resident parent has the funds, the parent with care could also claim a ‘carers allowance’ to cover child care costs, a nanny, a car to transport the child, and a top up of maintenance (assuming a maximum assessment has already been made by the CMS).

Periodical payments can only be ordered in certain circumstances, which include

• where the jurisdiction of the child maintenance service (CMS) is not engaged;
• the parties agree that periodical payments can be ordered; or
• the CMS has made a maximum child support assessment.

This case fell within the first set of circumstances.

How we helped

Initially, we tried to negotiate with her former partner, but as this proved unsuccessful, we issued an application to the court under Schedule 1 of the Children Act in late 2019.

We were able at the first appointment to secure a substantial interim payment of £600 per month just before Christmas which meant that for the first time, the family did not have to worry too much about how they would survive the festive period.

Despite a lack of cooperation, the complications of Covid-19, and other delaying tactics by the father which threatened to increase the costs, Linda pushed on with the application.

Once the father’s financial position was fully assessed, the Judge at a private FDR (financial dispute resolution) hearing determined that father was able to meet a liability increase for periodical payments to £780 pcm for the benefit of the minor child.  This was in addition to a lump sum of £52,000 which is payable by the father to the mother by September 2020 to cover debts, legal costs, new items for the child, dental and therapeutic treatment.

Funding a Schedule 1 application

If finances are tight, it is natural to be concerned about finding the funds to cover legal costs but it is a myth that a Schedule 1 application is ‘only for the rich or WAGs’.

In certain circumstances, the applicant can apply for a legal services order which will require the former partner or spouse to cover the legal costs of the application.

For advice on obtaining financial support after divorce or relationship breakdown, please contact Linda Pope on 020 7426 0400 or email lp@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.