Can the court make a legal services order in Schedule 1 proceedings? A legal services order may only be made in relation to proceedings under the Matrimonial Causes Act 1973 (MCA 1973) and the Civil Partnership Act 2004 (CPA 2004) following amendments to those Acts made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012). Such orders are not available in relation to proceedings under Schedule 1 to the Children Act 1989 (ChA 1989), as highlighted by Mostyn J in Rubin v Rubin. See also Practice Note: Funding—legal services orders and costs allowances and costs allowances. Can other provision be made for legal costs in Schedule 1 proceedings? Although there was some doubt as to whether it was permissible for the court to make an order as to provision for legal costs in ChA 1989, Sch 1 proceedings, following the decision in W v J (Child: Variation of Financial Provision),

The court has the power to make a school fees order either in the course of financial remedy proceedings where the parents of the child are in the process of divorcing (section 23 of the Matrimonial Causes Act 1973 (MCA 1973)) or on an application under paragraph 1 of Schedule 1 to the Children Act 1989 (ChA 1989), which can include an application where the parents were unmarried. Such orders are commonly expressed as maintenance orders, and section 8(7) of the Child Support Act 1991 disapplies the usual prevention on a court from making orders for the maintenance of a child where the child is, will be, or would if the order is made, receive instruction at an educational establishment and the order is made solely for the purposes of requiring the person making or securing the making of periodical

In care proceedings, it is open to the court under section 38 of the Children Act 1989 (ChA 1989) to make an interim care order (ICO) at an early stage of the proceedings. An ICO will not be made by the court unless it is satisfied that there are reasonable grounds for believing that the relevant child has suffered, or is at risk of suffering, significant harm (ChA 1989, ss 38(2) and 31(2)). ChA 1989, s 38A allows the court, when making an ICO, to put into place what is known as an ‘exclusion requirement’. An exclusion requirement is a direction that: • a specified person leave a house in which they live with the child • stops the person from entering the house, and/or • stops the person from coming within a defined area of the house The

Interim care orders The court can make an interim care order (ICO) at any point of an application for a care order, or where the court makes a direction under section 37 of the Children Act 1989 (ChA 1989). See also Practice Note: Reports under section 37 of the Children Act 1989. Although commonly granted, interim orders should be used for good reason and under careful judicial control of the proceedings, recognising the extent of the intervention it entails in the family’s life. The court must be clear about the interim care planning arrangements. The court must be satisfied that there are reasonable grounds for believing that the ChA 1989, s 31(2) threshold criteria are satisfied. This is a lower test than that at a final

The court may make an interim child arrangements order, namely an order intended to be short-term until determination of any issues in the case at a final hearing, under section 8 of the Children Act 1989. There are various cases where it can be seen interim child arrangements orders were made. For example, in Re A (A Child), the Court of Appeal considered an interim child arrangements order that increased the amount of unsupervised contact away from a contact centre between the child and father from one hour to two and a half hours against a background of a direction having been made, but not complied with, for the father to

The court’s power to make an order for maintenance pending suit (MPS) is contained in section 22 of the Matrimonial Causes Act 1973 (MCA 1973). MCA 1973, s 22(1) provides: ‘On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.’ The court’s wider ability to make financial

Section 31 of the Matrimonial Causes Act 1973 (MCA 1973) provides that where the court has made an order to which the section applies (which includes periodical payments), the court shall have the power to vary or discharge the order or to suspend any provision temporarily (and thereafter revive it). By the MCA 1973, s 31(2A), where the court has made an order for maintenance pending suit, interim maintenance, any periodical payments order and any secured periodical payments order, the court shall have the power to remit the payment of any arrears due

The court may make a ‘top-up’ order for child periodical payments under section 8(6) of the Child Support Act 1991 (CSA 1991) where a Child Maintenance Service (CMS) calculation is in force, the payer's weekly income as calculated by the CMS exceeds the maximum applicable amount and ‘the court is satisfied that the circumstances of the case make it appropriate’. The clear view of Holman J in Dickson v Rennie) was that a top-up order requires a calculation to be in place at the maximum level which has been carried out by the CMS rather

The position is not straightforward, and potential options will be dependent on the facts of the case. Section 23(1) of the Matrimonial Causes Act 1973 (MCA 1973) enables the court to make: ‘…(d) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; (e) an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; (f) an order that a party to the marriage shall pay to such person as may be so specified

Save in limited circumstances, the court has no jurisdiction in respect of child maintenance which is governed by the Child Support Act 1991 as amended. The powers of the court in financial remedy proceedings are limited to orders for periodical payments (including secured periodical payments), lump sums, property adjustment and pension orders. The court can also make interim orders such as for maintenance pending suit or legal costs orders. See the following Practice Notes: • Financial proceedings—orders that can be made by the court • Child support—respective jurisdictions of the Child Maintenance Service and the court • Child maintenance and financial provision—spouses and civil partners The court therefore cannot, per se, order the return of overpayments of child maintenance made under

The philosophical underpinning of the Children Act 1989 (ChA 1989) is that the child’s welfare is the paramount consideration. The ultimate arbiter of what is in a child’s interests during an application is therefore, with some very limited exceptions, the court. There is therefore a wealth of authority that makes it plain that it is for the court to determine whether certain allegations should be pursued or not, or whether to make findings outside of those sought by the parties. Often such issues arise in the context of parents who have made partial concessions as to threshold, where the local authority seeks permission to withdraw its application for a ChA 1989, Pt IV order without seeking a finding on threshold. It is therefore for the court to determine which findings are necessary. This should be viewed through the prism

Section 23(8) of the Matrimonial Causes Act 1973 (MCA 1973) provides: 'The powers of the court under this section to make one or more financial provision orders are exercisable against each party to the marriage by the making of— (a) a combined order on one occasion, or (b) separate orders on different occasions, but the court may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.' This provision confirms that only one application can be made for a one lump sum order. The court may, however, order one party