A recent family court decision dealt with a mother’s application against her ex-partner for financial provision for their two daughters, N and K, who were aged 20 and 18 at the time of judgment.
The focus of J and K v L (Schedule 1: older children) (Rev1) [2021] EWFC B104 was whether the court had jurisdiction to make financial orders given the fact the children had reached adulthood. Rebecca Worsley examines the decision.
Background
After nearly 20 years of litigation (dating back to 2001 when the elder daughter, N, was born), the mother issued her application in August 2018 when the children were 17 and 15, both to vary an existing order from 2011 for periodical payments and capital provision, and for further lump sums. The younger daughter, K, also brought her own application in August 2020 while proceedings were ongoing.
The litigation was hugely contentious, with no less than 22 hearings taking place as the case progressed over the two-year period from 2018 to 2020. Those hearings covered a range of matters, including costs orders made against the mother, “LASPO” type lump sum orders made against the father and an increase to the ongoing periodical payments.
The final hearing took place in December 2020 before His Honour Judge O’Dwyer. However, for various reasons, a final decision was not handed down until December 2021 by His Honour Judge Hess.
Both children had become adults during the course of the proceedings. Following an unsuccessful interim application by the mother for interim periodical payments for N pending resolution of the main application, by the time of the final hearing the mother was no longer pursuing financial support for N, only for K.
The judge’s analysis
His Honour Judge Hess carried out a detailed analysis of the application of Schedule 1 of the Children Act 1989, which enables financial orders to be made for the benefit of children. He commented that a key feature of the law is the obligation of a parent to provide financial support for their children not just when they are minors but beyond that if one of the extension conditions applies. These are:
- the child continues to receive instruction at an educational establishment, or
- there are special circumstances that justify the making of an order.
His Honour Judge Hess stated that given applications under Schedule 1 can be brought by either a parent on behalf of a child or by the child themselves, the statute appears to “pass the baton” from the parent to the child as the child approaches or has reached adulthood. However, he noted that the way in which this “baton-passing” is articulated in Schedule 1 is not straightforward. As such, there is much room for confusion about who should be making the application and at what stage.
The judge’s decision
Following Lord Justice Moylan’s decision in UD v DN (also handed down in December 2021), His Honour Judge Hess found that if an application invoking the court’s statutory power under Schedule 1 was issued before the relevant child had attained the age of 18, the court retained jurisdiction to make an order for the children after they had attained that age. Given the fact that one of the extension conditions applied to K (she was soon to be starting tertiary education), His Honour Judge Hess was able to make orders on the mother’s application for the benefit of K, despite the fact she was now aged 18.
Conversely, in relation to K’s own application, His Honour Judge Hess noted from the statute that while an adult child who satisfies one of the extension conditions could make an application for periodical payments or a lump sum order against their parent, they could not do so if immediately before they turned 16 a periodical payments order was in force for their benefit. Accordingly, as K’s father had been making periodical payments for her benefit when she had turned 16, she could not bring her own application for new orders at this stage. K could, however, have applied to vary the existing orders.
Partner Sam Longworth comments:
“This case highlights the powers of the court to make orders for financial provision for children beyond their 18th birthdays, but also serves as a reminder of the importance of timing when making applications for financial provision against the parent of an older child. Applications should be made before the child turns 18, including applications to vary existing orders, to ensure the court retains jurisdiction. Careful consideration should also be given as to whether that application should be brought by the parent or the child themselves.”
Paralegal Cyman Kaur contributed to this article.
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