Determining Periodical Payments for a Child under Schedule 1 of the Children Act 1989

Schedule 1 of the Children Act 1989 provides the court with powers to make financial provision for children in specific circumstances. Schedule 1 can provide provision for parents who are seeking financial provision for their children at the end of a relationship. One of the orders the court may make for the benefit of the child is periodical payments. 

Following the case of Galbraith-Marten vs De Renee [2023] EWWFC 253, this article will explore how the court determines periodical payments for a child under Schedule 1 of the Children Act 1989.

Who can make a claim under Schedule 1 and who may it be made against?

A parent, guardian, special Guardian or person with who the child lives with under a Child Arrangements Order can apply to the court under Schedule 1 for financial provision for the child.

Para 4(2) outlines who the court may exercise its powers under paragraph 1 against if this person is not the mother or father of the child. The court shall have regard to-

1. whether that person had assumed responsibility for the maintenance of the child and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility;
2. whether he did so knowing that the child was not his child;
3. the liability of any other person to maintain the child.

Galbraith-Marten vs De Renee [2023] EWWFC 253

This case concerned the determination of the quantum of periodical payments for a child under Schedule 1 of the Children Act 1989 following the parties’ divorce. Following the court setting aside an agreed order for periodical payments, the parties presented different approaches for how the court should determine the payments. 

The Father argued that the court should adopt a formula based approach citing James v Seymour. The Mother opposed this approach and sought for an increase in payments. 

In James v Seymour [2023] EWHC 844 (Fam), Mostyn J proposed the Adjusted Formula Methodology** to be adopted for the ‘computation of child support in most cases where the payers eligible income exceeds £156,000 and is less than £650,000.’ 

The Father provided four reasons for adopting the Adjusted Formula Methodology:

1. This area of law requires certainty and finality which can be achieved through a formula based approach to determine the quantum of periodical payments;
2. In CMX v EJX (French Marriage Contract) [2022] EWFC 136 Moor J explained the formula based approach is easy to calculate the figure for child support so avoids dispute;
3. Not adopting a formula based approach would open the floodgates to litigation which the formula is designed to avoid;
4. ‘The James v Seymour formula will withstand any discretionary review, applying the checklist in paragraph 4 of Schedule 1 CA 1989.’ 

Para 4 of Schedule 1 CA 1989

In determining periodical payments under Schedule 1 of the Children Act 1989 the court must have regard to all the circumstances including the criteria under paragraph 4. This includes:

1. the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
2. the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) 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 was being, or was expected to be, educated or trained.

Areas where the formula will not be appropriate at all 

1. In a case where there are four or more children for whom CSM is to be paid; (James v Seymour at [41]);
2. If the eligible income is more than £650,000, (ibid.);
3. If the father’s income is largely unearned, (ibid.);
4. If the father lives on capital, (ibid.);
5. If the court is concerned with a variation application under paragraph 6 of Schedule 1 CA 1989, where the application is founded on a “change in any of the matters to which the court was required to have regard when making the order”, and where the focus will be on what the change of circumstance is, and what impact the change has on the original award; (see James v Seymour at [34(iii)], and [42]);
6. Where the Schedule 1 CA 1989 claim is the ‘centrepiece’ of the financial dispute between the parties (not subsidiary to a claim for post-divorce financial relief for a child under the Matrimonial Causes Act 1973)

Judgment

In reaching his judgment, Cobb J reminded that the Adjusted Formula Method is a ‘loose starting point’ (per [43]) for the calculation of the Child Support Starting Point. It is also incumbent on the court to apply the statutory criteria of paragraph 4 of Schedule 1 CA 1989. 

By adopting the James v Seymour formula, it can be applied each year with reference to the payer’s income to calculate a fair quantum of periodical payments. Cobb J therefore applied the formula set out in James v Seymour to calculate the amount of child maintenance payable. 

** See APPENDIX James v Seymour [2023] EWHC 844 (Fam) for the Adjusted Formula Methodology. 

 Written by Claudia Saxton, Pupil Barrister at Unit Chambers.