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Vardags Family Law Essay competition 2023/24 | Olivia Clouting

 

Olivia Clouting - Durham University

 

Financial Support for children and young adults of divorced or separated parents

There are two aspects to the notion of law: the statute and the practice. A strong grounding in statute will provide a strong practice. However, it may be that statute can provide all the answers, yet not so very clearly as to provide reliable practice. To assert that the law does not always work in practice is a bold claim, yet many legal professionals specialising in the particular area of law this essay will address have identified a difficulty. This area is child maintenance, specifically in relation to financial arrangements made for children who have attained the age of 18 and particularly those who are continuing into tertiary education. Carla Ditz warns families to Mind the gap with regards to child maintenance and tertiary education funding. The crux of the complication here is in relation to the competing authority of the Child Maintenance Service (CMS) and the courts. Through various pieces of legislation, the two institutions appear to jostle for authority over specific sets of circumstances, making it difficult, in practice, clearly to devise which has authority and thus the correct interpretation of child financial support orders which extend beyond 18. Thereby, the child is exposed to a scenario that not only produces an unfair result but one that is technically unlawful too. This result can be as affecting as receiving no financial support in cases where there is legal grounding for such. On this basis, it must be said that in practice the law treads a fine line between adequate and inadequate protection of the financial needs of the child of separated or divorced parents. Further, the very fact that legal practitioners do indeed tread this fine line, that the complication exists and is widely recognised, and that debate is ongoing, all suggest the law itself to be inadequate in this area, as adequate law would not allow space for such haggling.

When it comes to child maintenance payments to a qualifying child, the Child Maintenance Service (CMS) is acknowledged as the primary authority, with jurisdiction superseding the court. Therefore, in most instances the CMS has authority to overrule court orders on matters of child maintenance, once an assessment has been made. The case Askew-Page v Page [2001] Fam Law 794 is the case seemingly providing some authority on this matter which is used to demonstrate that a court order will cease to have effect on the date of the maintenance calculation, according to the Child Support Act (CSA) 1991, Section 10, subsection 1 (a). However, there are exceptions to this rule. Section 8 of CSA 1991 sets out these exceptions. For example, that a child with a disability would be entitled to court-mandated maintenance payments in order to meet some or all of any expenses attributable to the childs disability. Moreover, subsection 7, (of section 8), does not prevent a court from exercising any power which it has to make a maintenance order in relation to a child on the grounds that the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment) and where the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training. It is clear that this is an area of law where detailed understanding of several clauses in the CSA 1991 is required; to lack this would neglect to allow the fulfilment of appropriate lawful procedure with respect to child maintenance. Indeed, Askew-Page v Page can be easily used as the simple answer that court agreements may be terminated when the CMS intervenes. However, to invoke this as cause to invalidate all orders is an over- simplification; one which neglects lawful courses of action provided by exceptions, such as section 8 of CSA 1991.

Assuming CMS calculations are fair and accurate, any terminations of child maintenance orders should not leave a child significantly disadvantaged and unprovided for. Thus, when considering whether the child is protected, the existence of institutions to ensure that maintenance is provided where financial ability allows, can be considered adequate protection. However, this, in the case of the CMS, applies to legally qualifying children, which in the context of child support is those under 18 and in full time education, or 20 and in education that is not further education, as set out in Section 55 of the Child Support Act 1991. Thus, the CMSs jurisdiction is only until these specified ages, and no payments can be made through them beyond that point. Thus, young adults over these ages are excluded from support, being outside the jurisdiction and protection of the CMS. Despite the fact that the over-eighteen child is no longer classed as qualifying they are still a child of the couple that have since separated and divorced. It is not the case legally that all parental responsibility is removed at this point, particularly in cases of tertiary education or training for a career. Section 29 of the Matrimonial Causes Act 1973 does set that out, no financial provision order and no order for a transfer of property under section 24(1)(a) above shall be made in favour of a child who has attained the age of eighteen. It makes exception, stating, in subsection 3 (section 29), that this shall not apply if the child is, or will be, […] receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment or in the case of special circumstances (such as a disability). Thus, statute provides an expectation of, and grounding for, support of a young adult who is a child of divorced or separated parents. Nonetheless, the law here would seem to give room for a variety of technical and somewhat arcane interpretations, given its complexity with the various exceptions and areas where previously stated clauses are said to not apply in certain circumstances. As discussed above, in cases where there is a valid consent order for specific future provision of a young adult over the age of eighteen in the same consent order as one considering immediate provisions for under-eighteen child maintenance, this can still be considered void upon a CMS assessment, by citing Askew-Page v Page. Given the CMSs authority does not stretch beyond eighteen, the young adult may then apply to the court to receive financial support, once they have reached the age of eighteen.

However, if the young adult is having to reinstate an aspect of a consent order that had been previously agreed, because of the difficulties posed by Askew-Page v Page and attempting to negotiate them away, this path is unlikely to succeed and therefore does not provide adequate protection.

Beyond that, the issue is compounded by another aspect of law. While in Schedule 1, section 2, subsection 1 of the Childrens Act of 1989 a young adult can apply to the court and receive support despite having reached the age of eighteen if they are or will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or through justifying that there are special circumstances which justify the making of an order under this paragraph, there are circumstances where this option is not open. For instance, Schedule 1, section 2, subsection 4 of the Childrens Act 1989 bars a child from making an application if their parents are living with each other in the same household. It appears unjust that the choice of ones parents affects the financial situation and stability of the applicant.

Furthermore, Schedule 1, section 2(3) states that An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him. This clause is particularly evident of inadequate protection as it leaves the child of divorced or separated parents without financial support in cases where this clause was not considered on making initial child maintenance orders. It creates a gap that the young adult can easily slip through, finding themselves without recourse to the court to claim withheld financial support. This means that when creating a child maintenance order, parents must be careful to make clear separate provision for the child when he reaches 18. To consider only maintenance for the qualifying under-18 child, when ended, leaves the young adult potentially unable to apply for further financial support, despite the merits of the case. Returning to cases where Askew-Page v Page is used to justify the invalidating of consent orders regarding child maintenance once a CMS application has been made, there is the issue of ensuring that any maintenance provisions made for a child over school age are not also invalided under the premise that this is child maintenance which the CMS authority invalidates. The complex nature of this area of law, with bars to access and statute seemingly subject to semantics and interpretation, provide the perfect conditions for blurring the boundaries of the power of the court to make or uphold orders. This, is turn, leaves the child of divorced parents exposed to the complete lack of security of mandated financial support, whether or not consent orders had been in place. Indeed, clauses stating that child maintenance is overseen by the CMS, and all financial support would stop at the age of eighteen, makes the matter appear clear and simple. Yet this illusion of simplicity is contradicted by the existence of clauses specifying exclusions from CMS authority, and age limits of a qualifying child. Children of separated parents who were never married face further difficulties in this area. They are only entitled to make a Schedule 1 order prior to their eighteenth birthday, whereas in divorce cases the child is at liberty to apply even after having reached the age of eighteen. Thus, the law does not adequately support the financial needs of a young adult who is the child of separated parents to an even greater extent than to a child of divorced parents.

At the start of this essay it was considered that the law consists of its application in practice, and the statute that provides the grounding for that. While there are many clauses that provide a comprehensive coverage of financial provision for children of divorced or separated parents, this appears clear to put into practice until the child becomes a young adult. Through the combination of the courts and the CMS it is unlikely that a child would be denied financial support under the schooling age. However, this is not the case for those who have reached the age of 18. While statute has provisions for support in this area, proving it to be a legal expectation in certain circumstances, such as education, training or disability, the nature of the law here appears subject to such interpretation and semantics as to provide obstacles to the application of the statute in practice. Through the case Askew-Page v Page and a multitude of exception clauses, inaccurate proceedings become more likely. However, this is where the legal gap in provision steps beyond that of practice and into statute. Schedule 1 of the Childrens Act exclusion of applicants over the age of eighteen, who had a child maintenance order in place immediately prior to the childs sixteenth birthday, or have parents that were never married are clauses that exclude young people from recourse to the courts for needed and justified financial support. This legal technical bar disregards the immediate circumstances of the case and of whether financial support is justified. Thus, Carla Ditz was most certainly correct, families do have to Mind the gap between child maintenance and financial support for young adults, and a gap in the law that one must be mindful of does not constitute adequate support for young people who are the children of divorced or separated parents.

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Bibliography

Carla Ditz, (19th Jan 2016) Child Support: Mind the Gap, Family Law in Partnership, Last accessed: 30th January 2024

Child Support Act (CSA) 1991, Section 10, paragraph 1 (a), Last accessed: 30th January 2024

Child Support Act (CSA) 1991, Section 8, Last accessed: 30th January 2024

Child Support Act (CSA) 1991, Section 55, Last accessed: 30th January 2024

Childrens Act of 1989, Schedule 1, Section 2, Subsection 1, Last accessed: 30th January

Childrens Act of 1989, Schedule 1, Section 2, Subsection 4, Last accessed: 30th January

Childrens Act of 1989, Schedule 1, Section 2, Subsection 3, Last accessed: 30th January

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