HHJ Hess recently handed down a helpful decision as to jurisdiction under Schedule 1 for an adult child in J & K v L (Schedule 1: Older Children) [2021] EWFC B104.

While this decision is non-binding,1 the judgment offers an exceptionally lucid and helpful analysis of existing case law, of the remedies available in Schedule 1 cases involving older children, and of the court’s jurisdiction.

The parties’ two daughters, N and K, were aged 20 and 18 at the time of judgment (on 30 December 2021). K suffered from a range of debilitating illnesses and conditions, and reliance had been placed upon the report of a consultant community paediatrician. K was due to attend tertiary education in September 2022. Neither child had had any form of relationship with their father, and they had been ‘brought up against a background of conflict and confrontation between their parents’ which had ‘been significantly emotionally harmful to them’ ([3]).

It is significant that, during the course of the litigation, each child respectively turned 18. K made a Schedule 1 application in her own right, which was heard at the same time. Following an unsuccessful earlier appeal of an interim order to HHJ Everall QC, the application in respect of N was no longer pursued. However, HHJ Hess differed in his analysis of the applicability of Schedule 1 to N, as discussed below.

Relevant history

The mother’s (J’s) first Schedule 1 application had been made in 2001, shortly after the birth of N, and had led by consent to an order for a housing fund. However, a court later found J had delayed and, to some extent, obstructed a property purchase in a rising property market, and thereafter discharged the order. J remained in rented property. This led to ill-feeling.

There was a brief reconciliation, during which K was born, but the relationship broke down and what followed was ‘twenty years of litigation echoing Dickens’ depressing tale of Jarndyce v Jarndyce’ ([5]), which included an order in 2006 for periodical payments but what amounted to a dismissal of J’s applications for capital/school fees orders. The court at that time was critical of the manner in which J had presented and pursued her case, and she was ordered to pay substantial costs to L, not to be enforced without leave of the court. J appealed and lost, leading to a further costs order against her. Immediately thereafter, J applied again for a school fees order, meeting with partial success.

In 2011, J applied for an increase in child periodical payments and for further lump sums. A consent order provided for an increase in child periodical payments, now including money towards rent, and a lump sum order for a car. Periodical payments were expressed (significantly) so as to end, for each child respectively, on the later of that child attaining the age of 17 or completing full-time secondary education.

In August 2018, with each child still under the age of 18, J made a further variation application and sought further lump sums for the benefit of the children.

On 1 July 2019, in the year of N’s completion of her secondary education, but after N had turned 18, J made an application for interim child periodical payments, J envisaging that N would shortly be entering tertiary education. On 19 August 2019, a deputy district judge dismissed that application on its merits (N’s exam results being insufficient to secure her a university place). The court also determined that there was no jurisdiction to make an order on the interim application as N had turned 18. J appealed. HHJ Everall QC agreed with the lower court on the issue of jurisdiction, and added that the court had no jurisdiction with respect to N to hear the main application of August 2018. King LJ declined to give permission to appeal to the Court of Appeal.

What was expected to be the final hearing of the August 2018 application took place in November 2020, the court hearing full evidence and submissions. However, due to judicial illness the reserved judgment was never handed down. By late spring of 2021, J’s solicitors became concerned with likely jurisdictional arguments, K imminently turning 18. J issued a further application, before K’s birthday, leading to an urgent listing before a different judge, HHJ Hess. It was ultimately agreed that HHJ Hess would listen to the tapes of the November 2020 hearing, read further legal submissions and at the same time determine any application to be made by K (upon her attaining 18). Such an application was made in October 2021 and the court determined the two applications together by the end of the year. While HHJ Hess was considering this case, the Court of Appeal’s judgment in UD v DN [2021] EWCA Civ 1947 was handed down.

Jurisdiction – difficulties facing the court

In this judgment, HHJ Hess was required to grapple with a problem already identified by the authors of ‘Illegitimate claims? Schedule 1 claims for periodical payments by parents of adult children’ [2019] Fam Law 5052 (Harrison and Benson).

Who may apply?

Paragraph 1 of Schedule 1 provides for child periodical payment orders/lump sums to be payable to a parent, upon their application. Paragraph 2 provides for the same to be payable directly to a child, upon an application by the child. Paragraph 1 also makes broader provision for various property orders for the benefit of the child. Those were not in issue here.

Who is a ‘child’?

Section 105 of the Children Act 1989 defines a child as ‘subject to paragraph 16 of Schedule 1, a person under the age of eighteen’. Paragraph 16 of Schedule 1, in turn, states that: ‘“child” includes, in any case where an application is made under paragraph 2 or 6 [of Schedule 1] in relation to a person who has reached the age of eighteen, that person’. Therefore a ‘child’ who is aged 18 or over, provided that ‘extension conditions’ (a term coined by HHJ Hess, explained below) apply, may seek orders from their parents for periodical payments or lump sums.

Two further points should be noted: the word ‘child’ is not in fact used in paragraph 2 of Schedule 1, and the word ‘child’ in paragraph 1 remains (presumably) as defined in section 105, hence being limited to persons under the age of 18.

Extension conditions

The ‘extension conditions’ ([21]) are that:

‘(i) the child is, or will be, or if an order were made … would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not [while also] in gainful employment; or

(ii) there are special circumstances [justifying] the making of an order … .’

The court observed that the wording is, for all practical purposes, identical as between the Matrimonial Causes Act 1973 and Schedule 1 to the Children Act 1989.

Relevance of/analogy with children of married parents

Commenting on the matrimonial jurisdiction, HHJ Hess stated ([24]) that:

‘there seems to be a general power to allow an adult child to intervene in divorce proceedings to force a parent’s hand: see Downing v Downing (Downing intervening) [1976] 3 All ER 474. The remedy of financial support is thus available to be pursued by either the parent for the benefit of the child or by the adult child himself or herself. It is not apparent that the co-existence of the remedies causes any particular problems for the legal system [although] [i]t is usual in practice for the divorcing parent to make the application … ’

HHJ Hess reiterated earlier judicial observations that the aim of Schedule 1 was ‘to make available a financial remedy to secure an appropriate level of financial support for a child who’s now separated parents were not married which is commensurate with the support that a child of parents who were married but are now divorced or divorcing could expect to receive’ ([18]). This echoed comments of the Law Commission in ‘Family Law, Illegitimacy’3 and in ‘Family Law: Review of Child Law Guardianship and Custody’,4 endorsed inter alia by Hale J (as she then was) in J v C (Child: Financial Provision) [1999] 1 FLR 152, 155. Sir James Munby had also more recently referred to the same passages from ‘Family Law, Illegitimacy’ with approval in FS v RS & JS [2020] EWFC 63.

The court noted that the passing of the baton (in terms of making the application) from the parent to the child as the child becomes an adult was ‘not at all straightforward’ ([25]).

HHJ Hess referred to Pepper v Hart [1993] AC 593 and adopted a purposive approach to interpretation of the statute (e.g. at [34(vi)]), similar to that advocated by Harrison and Benson in their article, and adopted by the Court of Appeal in UD v DN [2021] EWCA Civ 1947 (at e.g. [73]).

The judgment can be divided into aspects that summarise jurisdiction, and aspects that clarify or determine jurisdiction.

The summary of the relevant jurisdiction for adult children

The court helpfully summarised the position in respect of adult children:

(1) Remedies for the children of married and unmarried parents can differ without this necessarily amounting to unlawful discrimination, i.e. without being in breach of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (as Harrison and Benson had argued), it being appropriate for any ambiguities to be construed purposively, with the overall scheme of non-discrimination in mind ([20]).

(2) It would be ‘bold’ for a court at this level to rule that a statute had been – as Harrison and Benson contended – incorrectly drafted and that the reference to paragraph 2 at paragraph 16 should be read, instead, as a reference to paragraph 1. Further, the Court of Appeal in UD v DN had also declined to deal with the question of the restriction on parents making fresh Schedule 1 applications for children aged over 18 as at the date of application. The court therefore conservatively assumed that there was indeed such a prohibition on a parent making a such fresh application ([26]).

(3) An order made while a child is under 18 can continue for as long as one of the extension conditions is satisfied, i.e. well beyond the child attaining the age of 18: see paragraph 3(2) of Schedule 1.

(4) An order made before a child is 18 can lawfully require a payment of a lump sum or a transfer of property which takes place after the child is 18: see UD v DN, [63].

(5) The court may at any time make a further periodical payments or lump sum order under paragraph 1, but only if the child has not reached the age of 18 ([29]).

(6) ‘[P]ursuant to [Schedule 1] paragraph 6(4), a child of 16 or above may himself apply to vary a paragraph 1 periodical payments order previously made on the application of one of his parents’ ([30]).

(7) ‘[W]here a [previous Schedule 1] paragraph 1 periodical payments order … has expired on a date between the child’s 16th and 18th birthdays, the child who is over 16 may apply for its revival, but not from a date earlier than the date of the application made by him’ except where the original order expires after the child’s 18th birthday (e.g. where the original order is expressed to cease at the later of the conclusion of secondary education or age 18) ([31]). NB:

(a) this will not generally arise for children whose support has been via the Child Maintenance Service (CMS), but ‘it seems to be a possible lacuna in Schedule 1’; and

(b) the question of when precisely secondary education ceases is moot. Is it:

(i) end of school summer term (typically mid- to late July); or

(ii) the completion of A-levels (typically mid-June); or

(iii) some other, possibly later, date (e.g. 31 August, when child benefit ends)?

(8) Pursuant to paragraphs 2(1) and (2), an adult child who satisfies one of the extension conditions above may make an application for a periodical payments order and/or lump sum order, except where immediately before the applicant became 16, a periodical payments order was in force in relation to them: see paragraph 2(3) (that preventing K, in this case, from making a fresh application) ([32] and [34(i)]).

(9) An order made under paragraphs 2(1) and 2(2) of Schedule 1 may subsequently be varied (see paragraph 2(5)), or a further such order may be made (see paragraph 2(8)).

(10) The periodical payments order in favour of K made in 2011 was in existence when K attained the age of 16 in 2019, thus preventing K from bringing a fresh application under paragraph 2 for periodical payments/lump sum orders.

(11) The court agreed with the analogous reasoning of Thorpe LJ in Jones v Jones [2000] 2 FLR 307 (in relation to MCA 1973, s 31) that there would be ‘considerable practical inconvenience as well as pressure on the court’ if J were to have lost her right to lump sum and periodical payments orders purely because of the elapse of time, and particularly where that was not her fault. This had recently been affirmed by the Court of Appeal in UD v DN.

The more controversial determinations

The following aspects are likely to be considered further in the future by the higher courts:

1. As the interim periodical payments order made in March 2020 was stated to endure until ‘the conclusion of the present proceedings’, then, pursuant to paragraph 6(4), K had the right to vary it, and that is how the October 2021 application by K would be treated ([34(ii)] and [34(iii)]);
2. Secondly, the court determined that an order varying periodical payments did not fall within the meaning of ‘further order’ in paragraph 1(5)(a), and hence would not be subject to the requirement there for the child still to be aged under 18 ([34(iv)], [34(v)] and [34(vi)]). In this respect the court took the contrary view to that of HHJ Everall QC on the earlier appeal ([28], [34(iv)], [34(v)] and [34(xii)]).
3. (3) ‘[I]n my view … a variation application (as opposed to a fresh application, for example after the expiry of an earlier order) can be pursued at any time. In my view that includes the period from the child attaining the age of 18 to the child ceasing to satisfy one of the extension conditions. To decide otherwise produces an absurd result …’ ([34(vi)]).

Summary of court’s decision on jurisdiction

The court determined that there was jurisdiction to hear J’s variation application in respect of periodical payments and of lump sums ([34(iv)] and [34(xi)]), the court taking the view, based on its purposive interpretation of Schedule 1, that paragraph 1(5)(a) of Schedule 1 did not function so as to ‘knock out’ either aspect of the application, despite K having attained the age of 18 mid-proceedings.

The court further determined that it had power to backdate the periodical payments to the date of the application (although, for various reasons, it did not exercise that power), and to order that they endure to the date at which K ceases to satisfy the extension conditions in Re N [2009] EWHC 11.

More controversially, but ‘without at all wishing to create more argument’, the court opined that the situation was the same with respect to N. HHJ Everall QC had taken the view on the appeal that N could have made an application herself pursuant to paragraphs 6(5) and 6(6) of Schedule 1, to revive the periodical payments order, but N had chosen not to do so, and in her evidence J had repeatedly said ‘this is not about N, this is about K’ ([34(xii)]).

Substantive order

Having determined jurisdiction, the court traversed the guidance on the exercise of its discretion pursuant to paragraphs 4, 5 and 6 of Schedule 1, and considered the relevant case law (including CB v KB [2019] EWFC 78, in which Mostyn J stated that in ‘top-up’ cases the CMS percentages are the starting point up to a gross income of £650,000 ([37]).

The court commented at [39(iii)] that ‘[a]ny objective observer would be bemused and horrified’ at combined legal costs of c. £600,000 in an argument about child support.

Having set out the financial position of each party, the court considered the medical evidence, determining that K’s health was not such as to meet the relevant extension condition for disability. However, the court determined that K would attend tertiary education and extended the periodical payments order to the end of tertiary education to first degree level including (in effect) the gap year currently taking place, but stipulating that the periodical payments would not endure if K’s tertiary education were to come to an end ([54]). They would be CPI linked.

The court ordered a lump sum of £5,000 to be paid directly to K, who could decide how to spend it, the court having in mind computer equipment, tuition or counselling. Two further staggered lump sums in the low thousands, one for a motor car, the other untied, were ordered to be paid to J for the benefit of K.

Periodical payments would continue as payable to the mother for the benefit of K, but from the month K commences tertiary education they would be apportioned (save for a rental element) equally between J and K ([54]).

The court heard submissions as to costs, the ‘clean sheet’ rules applying, but was unpersuaded to make a costs order either way ([54]), despite heavy reliance being placed by L on a Calderbank offer. Having seen the offer, the court stated that this ‘should be a lesson to judges to be very reluctant indeed to allow a case to proceed without an FDR’ ([75]).