19th Jan 2016

Child Support: Mind the Gap

Child Support: Mind the Gap

Separating parents must consider future education costs as early as possible to avoid a lacuna in the law surrounding child support, explains Family Law in Partnership associate Carla Ditz.

We have previously looked at the cost of tertiary education and funding options. To understand why tertiary education costs rarely make an appearance in final orders in the family courts nowadays, it is necessary to take a few steps back and look at the legal framework up to the age of 18 (and the pitfalls thereafter).

It is common for parties to reach an agreement as to the level of provision to be made for children on family breakdown. This can cover any aspect of children’s expenses, and parents are encouraged to record any agreement in writing. Importantly, where parents are able to reach an agreement, they are more likely to stick to it and can instead focus their attention on parenting their children and maintaining a relationship with the other parent.

Child Maintenance Options, a Department for Work and Pensions agency, encourages the use of agreement as an alternative to using the Child Maintenance Service (CMS). It insists that its pro forma family-based arrangement is non-binding, which probably removes the intention to create legal relations, the prerequisite of a contract. Where there is a breach, a party can apply to the CMS as a fallback.

The law surrounding provision for children beyond the age of 18 becomes a little murky, but this much we can be sure about:

  • Provision for the child in any earlier separation may have been made by the court (perhaps by consent or through the CMS);
  • Where there was an order, it may have been until the child attained the age of 18 or finished secondary education, or it may have carried through to the end of tertiary education (usually “to the end of the first degree”) although this is less common nowadays;
  • If the order was made after 3 March 2003, either party can make an application to the CMS 12 months after the date of the order. Crucially, such an application will terminate the court’s award under the original order. Askew-Page v Page [2001] Fam Law 794 is the authority for the proposition that the order is ended for all time and for all purposes, which will mean that even if provision was made for the tertiary years under the order, this will have terminated too. However, as the young person moves into tertiary education, the jurisdiction of the CMS comes to an end and the jurisdiction of the courts is restored and available to those who cannot reach an agreement.
  • Split orders may be made (and are common), obliging the paying party to provide some support directly to the child, and providing assistance to the home provider for the costs of maintaining that home and for vacation expenses (a “roofing allowance”);
  • Where there is dispute and the parties were married, the application will often be made by the spouse to include the child. Where the parties were never married, the application is made under section 15 and schedule 1 of the Children Act 1989. However in these cases, the application can only be to vary an existing order or be made prior to the child’s 18th birthday. If the order has expired and the young person is already over 18, then, unlike in divorce cases, there is no jurisdiction for the court to make a schedule 1 order; and
  • The child can make an application but only if there was no order in place immediately prior to their 16th birthday (under paragraph 2(4) of schedule 1 of the Act), a provision presumably intended to permit a child’s application but to leave earlier separated- parent disputes firmly between the parents.

That of course creates a lacuna. The young adult looking for help with educational costs, whose parents were never married and settled matters by an order to the end of secondary education, which has not been discharged by a CMS application, may have nowhere to turn: the young adult cannot make an application themselves, the parent cannot make an application because their dependant is not a child (therefore there is no jurisdiction under schedule 1), and there is no existing order to vary.

In order to avoid this ‘child support trap’, parties will need to give careful consideration to future education costs as soon as possible, which is not an ideal scenario where there are likely to be more immediate needs. However, neither party would wish to be in a situation where they are forced to return to court and revisit the question of financial provision where no agreement can be reached, or indeed commence proceedings where they had managed to avoid it before. As practitioners it is our duty to warn our clients of the child support lacuna, even though the situation may be many years in the future.

This article first appeared in Solicitors Journal November 2015