Is it worth a Schedule 1 application, or should I just go through the CMS? By Syra Flaxman-Ali and Edward Hurley

28^th March 2025

For those seeking financial support for children living with them post-separation where parties have not been married, one has the option of going through the Child Maintenance Service (CMS), or making a Schedule 1 Children Act 1989 (Schedule 1) application, but is it worth it?

If you’re simply seeking periodical payments, a Schedule 1 application may prove too effortful and without good return (that is, unless the other person’s income exceeds £3,000 per week).

However, there are circumstances in which a Schedule 1 claim might prove beneficial, including:

1.The other person is asset-rich, cash-poor.

The CMS does not consider any property in which the paying party lives, whereas Schedule 1 claims can consider this property, as well as all other financial resources each party has available (or is likely to have in the foreseeable future), which may constitute a significant difference in the financial support provided.

2.You require a lump sum or property for the benefit of your child.

The CMS will not help you if you are concerned about housing provision for yourself and your child, or need a lump sum payment to assist with other costs associated with your child, for example for a car.

Be warned though, for housing provision, the Court will often be wary to transfer any property absolutely, and provision will typically only last for the duration of the child’s minority or education (a Mesher order is a common order in this area). You will therefore need to have a plan for when that condition expires, and be prepared to find suitable housing that can accommodate your needs moving forward.

3.You have a child with additional needs.

A Schedule 1 application may also be helpful if you have a child with additional needs. As opposed to the CMS flat rate scheme, the Court in any Schedule 1 application must consider a child’s physical or mental disability, and may also make important provision for costs attributable to the child’s disability.

Schedule 1 may also assist if you need financial support for your child beyond them turning 20 years of age, which the CMS cannot accommodate.

The downsides of pursuing a Schedule 1 claim: uncertainty, costs and time.

Whilst the CMS clearly sets out the amount you can expect to receive, the outcome of a Schedule 1 application is somewhat unknown, although representatives will be able to guide you on the factors the Court will weigh up and relevant caselaw.

There is also the risk of costs. Schedule 1 claims are not subject to the usual ‘no order’ principle and so, if you pursue a claim and are unsuccessful, you could be facing an order to pay the other party’s costs. This does however also work the other way, and so if you are successful, you could look to have some of your costs recovered. In the interests of keeping costs down, it would be wise to consider dispute resolution first.

The other aspect is time. Initiating a Schedule 1 claim will naturally consume more of your time in complying with orders for disclosure and going through the Court process, which may include several hearings. This process, combined with the delays in the Court system, means any outcome is likely to take longer than the 12 weeks the CMS estimates for the first payment from applying. If you’re concerned about being out of pocket awaiting a Schedule 1 application, you can apply to the Court for interim periodical payments, and may also be able to secure an order for the other person to help fund your legal representation in the meanwhile.

And what if the other person fails to pay?

Financial provision through either route is enforceable. With the CMS, they are in the driving seat in taking enforcement action and deciding how arrears are collected, though you may raise any issues with them concerning their course of action.

Enforcement of a Schedule 1 claim would be driven by yourself, and you can ask the Court to make an order (within the Court’s discretion) as you see fit. The Court have also noted that agreements reached between the parties during Schedule 1 proceedings, though not strictly part of the order, can be legally enforceable (BSA v NVT [2020] EWHC 2906 (Fam)). However, as with the application itself, enforcement can be a lengthy and drawn-out process given the delays that plague the Court system. Thankfully, in many cases, a strongly worded letter from a legal representative, highlighting the consequences of non-compliance (which could include imprisonment), as well as potential cost sanctions, will be enough to secure compliance.

Ultimately, unless the other party is a high earner or has assets, the CMS is likely to be the more efficient route, but Schedule 1 claims are worth consideration in every case, particularly where you feel CMS payments would not adequately support your child and their needs.