Children Act 1989, Schedule 1, paragraph 4

Matters to which court is to have regard in making orders for financial relief

SCHEDULE 1 Financial Provision for Children

4 (1) In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—

(a) 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;

(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(c) the financial needs of the child;

(d) the income, earning capacity (if any), property and other financial resources of the child;

(e) any physical or mental disability of the child;

(f) the manner in which the child was being, or was expected to be, educated or trained.

(2) In deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, and if so in what manner, the court shall in addition have regard to—

(a) 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;

(b) whether he did so knowing that the child was not his child;

(c) the liability of any other person to maintain the child.

(3) Where the court makes an order under paragraph 1 against a person who is not the father of the child, it shall record in the order that the order is made on the basis that the person against whom the order is made is not the child’s father.

(4) The persons mentioned in sub-paragraph (1) are—

(a) in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child;

(b) in relation to a decision whether to exercise its powers under paragraph 2, the mother and father of the child;

(c) the applicant for the order;

(d) any other person in whose favour the court proposes to make the order.

[F1132 (5) In the case of a child who has a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, any reference in sub-paragraph (2), (3) or (4) to the child's father is a reference to the woman who is a parent of the child by virtue of that section.F1132]

Definitions used in Schedule 1, paragraph 4 4

the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
parent

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act

Cases considering Schedule 1, paragraph 4 19

A (A Child)

[2014] EWCA Civ 1577 · 10 December 2014Limits

The court held that the statutory matters in paragraph 4 must remain central when fixing provision, including after adverse inferences from a parent’s non-disclosure. They preclude a punitive or context-free award (see paras [21]; [24]; [32]-[33]). The court held that the common terminology with matrimonial legislation does not import matrimonial sharing or compensation. The provision is applied within the distinct needs-based Schedule 1 scheme (see paras [18]-[20]; [32]). The court held that the common terminology with matrimonial legislation does not require an analogous matrimonial approach. The provision remains part of the child-focused assessment under Schedule 1 (see paras [18]-[20]). The court rejected the proposed construction that this provision permits an award driven only by the wealthy parent’s resources and potential lifestyle. The child’s reasonable needs and circumstances remain material (see para [32]).

Morgan v Hill

[2006] EWCA Civ 1602 · 28 November 2006Interprets

The checklist in paragraph 4 was the framework for assessing proper provision. The pre-existing agreement was one circumstance within that assessment, not a reason to disregard the child’s interests or start afresh. (see paras [23]; [33]-[34]; [56]-[62])

P (Child), Re

[2003] EWCA Civ 837 · 24 June 2003

The court applied the statutory all-the-circumstances assessment. It treated welfare as a constant influence, though not the paramount consideration. (see paras [33]-[34]; [41]-[49]) The father’s exceptional resources and lifestyle materially increased the appropriate housing, capital and income provision for the child. (see paras [51]-[54]) The court took account of the parents’ future financial needs, obligations and responsibilities within the overall discretionary assessment. (see paras [33]-[34]; [47]-[49]) The child’s financial needs included suitable accommodation and the support needed by her primary carer to provide care. (see paras [48]-[54]) The court took account of the child’s anticipated education, including the availability of suitable private day schools in London. (see paras [33]-[34]; [50])

What each judgment says about Schedule 1, paragraph 4 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F1132Sch. 1 para. 4(5) inserted (6.4.2009) by Human Fertilisation and Embryology Act 2008 (c. 22), ss. 56, 68, Sch. 6 para. 32(2); S.I. 2009/479, art. 6(1)(e)

Commencement

  1. I94Sch. 1 para. 4 wholly in force at 14.10.1991, see s. 108(2)(3) and S.I. 1991/828, art. 3(2)