CMS and Schedule 1 application

[Resolute]

Hi All,

Sorry for a long post, this is a little complicated.

I've received an A1 form applying for a lump sum to cover maintenance accruing since separation under Schedule 1 of the Children Act. There is already a case under Trusts of Land and Appointment of Trustees Act 1996 to deal with property owned jointly with ex, 15 minute directions hearing is scheduled for the 27th. The solicitor has asked for both cases to be listed jointly.

CMS application was made by ex last October and has been assessed as Nil payment due. Ex asked for mandatory reconsideration from CMS, they stuck to the Nil calculation. I have not heard anything about this going to a tribunal. Previous to her CMS application my ex had not made any attempt at maintenance agreement and rejected my offer of support in court. In the beginning she wrote a couple of times telling me of expenses, school uniform etc. I paid what was asked without question. She stopped asking, I think the requests were only made in the hope I would refuse and that she could use that against me.

The Schedule 1 application is an attempt at getting maintenance back dated, which CMS told me was not possible. I am not sure if a civil case in the county court, essentially a small claim, can be jointly listed with an application to the family court. If they can be jointly listed, I am thinking that the 15 minute directions hearing will not be enough. None of this is accidental, her solicitor's timing was obviously to put me off track in the run up to a hearing.

I am not sure what I should do. The family court application has gone to a court miles away because Schedule 1 applications have been centralised. It is feeling like there's been a grand plan in her solicitor's head for the last three years and it is just coming together.

I could email the court highlighting that 15 minutes will not be enough, but that feels like accepting the two should be listed jointly. In my child arrangement proceedings her solicitor ran Family Law Act and Children Act applications using one to gain advantage in the other. I think they are doing the same again.

I am LIP and do not have money for representation. I've paid £500 for initial meeting with solicitor but was quoted a sum more than half the equity in the property to go ahead.

I would be very grateful for any advice on how things are likely to be handled by the court or on steps I could take. Please share if you have been in a similar situation.

Thanks for reading

 

[Ash]

Hi. Are you allowed to submit evidence before this hearing? It sounds to me like although CMS say no backdated maintenance is due, they are clearly trying this to minimise your share of the property proceeds.

You've probably already done some googling, but I came across this

The Schedule 1 provision of the Children Act 1989 is particularly relevant in cases where there is some wealth, or if the child has a disability. It is most often used in cases where parents have not been married.

Assume your child doesn't have a disability and it sounds like you don't have a lot of wealth. So I can't see they have much of a case.

The court has the power to make the following Orders for the benefit of a child:

• Periodical payments
• Secured periodical payments
• Lump sum orders
• Settlement of property
• Transfer of property

Link below where the above quotes came from. It looks like a trick to get the property settlement in it's entirety, by trying to get it as being for the benefit of the child.

If you can't submit evidence at this stage, I would think a strong position statement before the hearing could set matters straight. ie there is no CM due and no backdated CM due, based on your lack of income and wealth. That there have been no informal agreements regarding CM previously. You had proposed this in x year, but it was not responded to. There has been an informal situation whereby you were asked to pay half of various things on occasion for the child, which you have agreed to and have done and can evidence all the above. As such there is no merit in the claim for Child Maintenance and you consider this to be a strategy to reduce your share of any equity in the property. And you ask the court to dismiss this claim and order a final hearing as regards the financial elements of the property only.

I have not been in a similar situation, but maybe others have. Were you married to the ex or not? I think not, is that right?

What Is The Schedule 1 Children Act 1989? - Major Family Law

The Schedule 1 Children Act 1989 gives the Court the power to make Orders for financial provision for children. A parent, guardian, special guardian or…

www.majorfamilylaw.co.uk

 

[Resolute]

Thanks for the quick response Ash.

No wealth for me and no disability for the child. We were not married. It does not seem like a classic Schedule 1 situation.

I like the outline of a position statement, at present the A1 form has not been listed and it has gone to a different court. They sent it to court next week's hearing is at and were told to redirect.

I struggle to see how we will get started on this in 15 minutes so am not sure about submitting evidence. I was thinking position statement and a folder with documents I can share if they become relevant to the directions. Costs are liable to be awarded for S1 or TOLATA, so I am looking to keep some powder dry for that eventuality.

I think the solicitor will ride both horses until he decides which one he wants to race on. Just like he did with FLA and CA.

 

[Resolute]

A thought has just come to mind.

How about something like this:

Dear Ex's Solicitor,

Your client has filed an A1 Form for proceedings under Schedule 1 of the Children Act. My understanding is that this option is generally directed towards situations where the child's needs are not being met - e.g. health, education - and the court's intervention is necessary to benefit the child. Or, to deal with situations that fall outside of the CMS's remit.

Your client has demonstrated that she believes our case does fall within the remit of CMS. So, please ask your client to disclose which of our daughter's needs are not being met as a matter of urgency. I am not aware of the shortcomings and naturally am very concerned to learn of them.

Yours...

It on the same theme as Ash's points for position statement, i.e. this has been dealt with by CMS and no attempt has been made at any other arrangement prior to the application.

I'm not sure if this move would give any advantage, but it might be good to ask directly what concerns there are for the child.

 

[familybarrister]

Let’s start at the beginning. When a married couple separates one or both of them can make an application for a financial order that will determine how their property will be divided between them. The court has wide-ranging powers to redistribute assets and make orders for the sale of properties and the payments of maintenance. However, these same wide-ranging powers do not exist where a couple has chosen not to get married or have a civil partnership. There are, however, some powers and these are found in the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996 and Schedule 1 of the Children Act 1989.

In cases such as yours, ToLATA is typically used to a) order the sale of a property if one of the owners doesn’t want to sell it; and/or, b) determine what beneficial interest each party has in the property. So, for example, in many cases a couple purchase a property as joint tenants and when they separate one person wants the house to be sold and the other wants to stay there, perhaps because there is a child of the family living there with them. In that case, if there is an express declaration of the parties’ interests in the home (usually found in your conveyancing documents - it's often 50:50, but not always) the court will usually consider that to be determinative and it will then decide whether the house should be sold or not and, if so, when it should be sold. Sometimes, when there are children involved, the sale is deferred until they reach 18 or have left school.

Schedule 1 of the Children Act is used when the unmarried couple have a child. The applicant can seek a range of orders for the benefit of the child – a lump sum order, periodical payments (i.e. child maintenance) and/or the transfer or settlement of property. A note on each:

• Lump sum order – these are typically for the recipient to purchase capital items, e.g. a new car, money to furnish a home, etc.
• Periodical payments – in the majority of cases the court will not have jurisdiction to deal with child maintenance. Instead, the Child Maintenance Service will administer and enforce child maintenance. Therefore, unless you meet one of the exceptions (e.g. a gross salary of more than £156,000/year) the CMS will deal with child maintenance and not the court.
• Transfer or settlement of property – in some cases, a property is transferred to the parent with whom the child is living. It will then revert to the transferor when, for example, the child reaches 18 or finishes secondary education, whichever is later.

In many cases the parent with whom the child is living will make a ToLATA application and a Schedule 1 application. Why? Because their primary argument (ToLATA) may be that the house shouldn’t be sold and they should be allowed to live in it with the child until the child finishes secondary education. It would then be sold and the parties would receive the net proceeds of sale in whatever proportion they hold the beneficial interest, frequently 50:50 but not always, it usually depends on what shares were recorded when the property was purchased. However, their secondary argument (Schedule 1) is that if the house has to be sold then, in addition to getting their 50% of the net proceeds of sale, they also want an additional sum to help pay for another house for them and the child. That additional sum is used to purchase the property but when, for example, the child turns 18 or finishes secondary education, the sum needs to be repaid to the payer. So, either the new property is sold so the payer gets their money back or the payee finds the money from elsewhere.

For obvious reasons, it is good practice for ToLATA proceedings and Schedule 1 proceedings to be consolidated, i.e. that they are dealt with together.

The first hearing you will have to attend is a directions hearing. It is normally listed for 30 or 45 minutes. I agree, 15 minutes is insufficient. At that hearing, the judge will decide what information, financial or otherwise, will be needed by a judge at a later hearing to make the decisions they are being asked to make, e.g. should the house be sold, should one party receive a lump sum? At the end of the hearing the judge will make a directions order that sets out who must obtain and share that information and by when. A second hearing will be listed, usually an FDR. An FDR is a Financial Dispute Resolution hearing. You and your ex will have the opportunity to put forward your proposals for how this should all be resolved. The judge will then give their view on what the outcome might be if this went to a final hearing. At this stage, their view isn’t binding, it is just to help you and your ex understand what is a likely outcome so you can negotiate and hopefully reach an agreement. If you cannot reach an agreement then there will be one more hearing, the final hearing. At that hearing, a judge will make a decision for you based on the circumstances and the information available.

I hope that helps.

 

[Resolute]

Thanks, that has given me lots to think about. There have been developments since this was posted. I will update when I have more time.

Thanks again.

 

[Ash]

Very helpful above. I think in your case, you live in the joint owned residence and child lives with your ex elsewhere, is that right? And there is not that much equity in it. Not sure if that makes a difference.

 

[Resolute]

Good morning FB, you obviously have detailed knowledge of this stuff. You have added some clarity for me. I am going to give an update and then check if I have understood ramifications of your points.

In June we had the 15 minute hearing. Schedule 1 papers came through my door that morning listed to be heard with the civil case. The other side pushed to get an order they had written signed off by a judge in the civil court and to get the S1 consolidated with the ToLATA. I told the judge that: I had not had time to consider the S1, the S1 order stipulated steps to be taken before first hearing and we would have to reconvene after those steps, the arguments in the two cases were at cross purposes and that the other side were attempting to have me compromise myself on one case so they could take advantage on the other, gamesmanship was at play and had been for over 2 years. I had submitted a position statement detailing this and got a note to the judge before the hearing stating that I was not prepared as LIP for S1 hearing without notice. The judge refused to take any action on the basis that the matter before him was outside his jurisdiction. We rose for "10 minutes" so the judge could consult/consider. Over an hour later we were called into an impromptu hearing in the family court before a judge that had come in especially - I was told by court admin he was not working that day. This hearing lasted for over an hour and other sides barrister was taken to task, reduced to a flustered, stuttering mess in fact . The judge refused to consolidate and indicated he was not minded to accept that consolidation was appropriate. But, left that decision on the table. He refused to award costs and warned the other side there will be no question of costs if behaviour in the family court is found to be unreasonable. We are listed for a further directions hearing in November, 1 hour in the family court. Forms E1, Questionnaires and answers have since been exchanged.

ToLATA is typically used to a) order the sale of a property if one of the owners doesn’t want to sell it; and/or, b) determine what beneficial interest each party has in the property. So, for example, in many cases a couple purchase a property as joint tenants and when they separate one person wants the house to be sold and the other wants to stay there, perhaps because there is a child of the family living there with them. In that case, if there is an express declaration of the parties’ interests in the home (usually found in your conveyancing documents - it's often 50:50, but not always) the court will usually consider that to be determinative and it will then decide whether the house should be sold or not and, if so, when it should be sold. Sometimes, when there are children involved, the sale is deferred until they reach 18 or have left school.

Ash was correct: there is little equity, I am living in the jointly owned property, the child lives some way away in a property owned outright by ex's family.

ToLATA application was intended to force sale. The beneficial interest is to be determined. Joint Tenancy was de facto severed by ex's conduct long ago. I formalised this relatively recently by registering a Form A restriction. We are now Tenants in Common. The other side has consistently inflated property value and ex's contribution, but refused to disclose anything which would substantiate their claims. When this first started I made a WPSATC offer to buy her out based on valuation conducted jointly. Recent court ordered valuations vindicate my position on value. Indicative numbers:

Me, £1000 plus 2.5 years appreciation, say £1200

Them, £1850

Estate agents, £1280


I have just been called away, will continue this later.

 

[Resolute]

Sorry about the interruption. I'll continue from where I left off.

The other sides refusal of various invites to mediation and the absence of any pre-action correspondence re. The S1. Along with lies preceding ToLATA application. And, her disclosure's flagrant misrepresentation of income, outgoings, assets, and liabilities. All make me optimistic they are not in a strong position on costs. Her costs will greatly exceed 50% of the equity if this goes to final hearing. The claims are disproportionate and vexatious. ToLATA claim seems weak because she only contributed 30-40% for about 60% of time since purchase. Form A notice served by me did not specify beneficial shares. But I believe any strength in my ToLATA position will be lost by a switch to S1. Luckily, I have kept my cards close to my chest throughout and still have all options open in terms of my position.

Periodical payments – in the majority of cases the court will not have jurisdiction to deal with child maintenance. Instead, the Child Maintenance Service will administer and enforce child maintenance. Therefore, unless you meet one of the exceptions (e.g. a gross salary of more than £156,000/year) the CMS will deal with child maintenance and not the court.

I do not fit any of the exemptions. Does this mean I should just say periodical payments do not come under the court's jurisdiction in my case?

 

[Resolute]

Sorry if the above is information overload. It is the first time I have written about this stuff. Obviously there is loads more detail. I do not want to overdo it.

I would really appreciate any thoughts or questions you might have.