A Child’s Gender Identity – Who Decides?

Posted on 28th July 202328th July 2023 by McAlister Family Law

A Child’s Gender Identity – Who Decides?

NHS statistics indicate that referrals for children wishing to change genders have rocketed in the past 5 years, initiating worldwide debate as to how to respond to this in a societal and legislative sense. Here, Eleanor Drury looks at how parents, schools, and the government approach the gender identity of children and the implications teachers face without the government’s promised guidance.

A child’s gender identity, who decides? A proposed bill in California, Assembly Bill 957, also known as the Transgender, Gender-Diverse and Intersex Youth Empowerment Act, would seek to brand parents as abusive if they refuse to affirm their transgender child’s identity and let children’s social services intervene in instances of the same.

The act stresses that it is part of a child’s health, safety and welfare for parents to support their child’s self-proclaimed gender identity and allows the courts to consider parental responses to these sorts of issues when determining custody disputes, further encouraging the judiciary to strongly consider that affirming a child’s gender identity should fall within the realms of best interest decision making.

Here in the UK, legislators have taken a contrasting approach, with Suella Braverman MP stating that schools have no legal obligations which require them to address children by their preferred pronouns or names, nor accommodate them in opposite sex toilets or sports teams. In addition, the UK government are rumoured to be introducing new guidance which instructs teachers not to use a new name or pronoun, as requested by the student, without obtaining parental consent first.

Of course, the government must consider the implications this may have on children, with some educators accusing the government of creating an ‘atmosphere of fear’ whereby transgender children cannot access support from their teachers, along with potentially opening the floodgates for breaches of confidentiality claims. In addition, guidance such as this creates a particularly tricky environment to navigate given that it is common across schools nationwide for teachers to allow, and join in with, children being referred to by a name different to that which they were registered at birth with, such as a nickname. Schools will be no doubt be keen to ensure that they do not fall risk to direct discrimination complaints.

In modern society, the issue of children and gender identity is likely to continue to hit the headlines as reports of transgender and gender-fluid children soar. Government guidance is desperately needed in order to provide clarification in this controversial area and allow schools some relief from being caught in the crossfire of opposing views and beliefs. Last month, teachers at a school in Sussex were subject to controversy following the publishing of a secret recording in which teenage pupils were debating whether a person could identify as a cat, with one student brandishing this as ‘crazy’, only to be told by the teacher that these views were ‘despicable’, adding that if they didn’t like this, they need to find a different school. It appears that teachers are understandably fearful of what they say, and the consequences of the same, and therefore struggle to respond to students in a sensible and honest way. Without clear boundaries in this area, it can be argued that debates such as this only delegitimise and stigmatise young transgender people. The Association of School and College Leaders (ASCL) state that this underlines the need for the government to publish its promised guidance on children and gender identity, which the ASCL sought over 5 years ago.

Whilst it is extremely unlikely that any future guidance published in the UK will be so inclusive as to include children who wish to identify as animals, It will certainly be interesting to see if clarification will finally be provided for educators, and whether UK legislators are influenced by the differing proposals of the US in respect of gender dysphoria. Could it be that UK children’s social care may be forced to intervene in instances of disagreement between parent/guardian, and child?

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk

Breach of child arrangements order – What are my options?

Posted on 4th May 2023 by McAlister Family Law

Breach of child arrangements order – What are my options?

Navigating decisions about arrangements for the children, house rules and holidays can be a very difficult task for separated parents. In cases where an impasse is irreconcilable, it may be necessary to secure a Child Arrangements Order to clarify matters and enable the parties to move on with their lives. Here, Agata Napora looks at the consequences if Court Orders aren’t followed.

Initial Steps

A constant breach can be very upsetting and cause a lot of uncertainty for the other parent and the child concerned which is far from desirable and should be handled with care. In first instance we would recommend that you always try to address all the issues direct as this may help break the ice between you and help resolve matters without the need of engaging a solicitor or taking your case back Court. However, should this approach be unsuccessful, the next step would be to contact a solicitor with a view to writing to the other party and reminding them of their obligation to comply with the Order and the legal ramifications if they continue to breach it.

A Child Arrangements Order has a “Warning Notice” attached to it which informs the parties about the consequences of failure to abide by the terms of the Order. From a legal standpoint, a breach of a Court Order is a serious affair as it constitutes a contempt of Court, and this may lead to sanctions being made against the non-compliant parent.

If correspondence from a solicitor does not achieve the desired effect and the other parent continues to act contrary to the terms of the Order, then you may need to consider applying to the Court for enforcement.

What Constitutes a Breach of an Order

When a Child Arrangements Order is already in place almost anything can amount to a breach including a lateness to the handover or a cancellation of contact due to an illness, or a prior work commitment. Whilst a one-off incident of this nature is unlikely to be enough for the Court to order a sanction against the other party, a series of minor breaches may have a profound impact on the welfare of the child and the Court will therefore take a closer look at the overall situation. It is therefore advisable to keep a record of all the instances and the frequency of the said breaches so that the Court can benefit from a full picture and is able to investigate the issues accordingly.

What the Court looks for in enforcement applications

The Court will determine the nature of the breach and look at the reasons behind the other parent’s non-compliance. The Judge will be interested in knowing as to whether there is a plausible explanation behind the other parent’s conduct or perhaps no valid justification at all. The Court will assess the effect of the breach on the child’s welfare and whether it would be in the child’s best interests for the order to be enforced. Every case is different, and in some circumstances, the Court may wish to obtain expert advice or a CAFCASS report or make a referral to social services to investigate matters in more detail before making a final determination.

How to make Enforcement application

An application to enforce a court order is made on a specific enforcement application form C79. There is also a Court fee payable of £232 unless you qualify for a fee remission. We would recommend that you seek legal advice on how to complete the form to ensure that your application is successful.

Enforcement and Sanctions

In deciding whether to enforce the Order, the Court must satisfy itself beyond reasonable doubt that such action is necessary and proportionate to the seriousness and frequency of the parent committing the breach and that the Enforcement Order is required to secure compliance with the Order. If the breach turns out to be minor or the parent in breach of the Order actively shows remorse and perhaps undertakes to the Court not to repeat the said misconduct, the Court is likely to consider that Enforcement Order is not necessary. Furthermore, if a parent in breach of the Order can show on balance of probabilities that they had a reasonable excuse for failing to comply with the order, then it an Enforcement Order will not be granted.

Whilst some parties may be referred to a separated parents information program (SPIP) or mediation to resolve their disputes, others could be ordered to pay a fine, undertake unpaid work or be committed to prison. It may also be possible for one parent to seek a compensation for financial loss suffered by reason of the breach.

Who pays costs of enforcement proceedings

The standard rule on costs in children proceedings is that there should be no order for costs. This approach however does not apply to applications for enforcement orders meaning that the applicant party have the right to seek costs against the respondent party and the Court has a discretion to order the unsuccessful party to pay the reasonable legal costs of the other side.

If you are considering applying to the Court for enforcement of the existing Child Arrangements Order, we would highly recommend that you seek specialist assistance.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Means free Legal Aid being extended

Posted on 18th April 202318th April 2023 by McAlister Family Law

Means free Legal Aid being extended

Government announces extension to the rules for family legal aid. The scope of means free Legal Aid is being extended for Parents and those with Parental Responsibility. This applies to opposing applications for Placement and Adoption Orders in public family law proceedings. Here, Clint Nicholls looks at what this means for you.

Well, it will be a relief for many Parents as it will make it easier to obtain Legal Aid as the case will only be assessed on a merits basis, whereas previously applications were subject to the means test. Challenging an adoption or Placement Order is a daunting task especially for vulnerable Parents who may have little support if they cannot obtain legal help. If Parents can demonstrate that they have made changes and these changes are sufficient, then their case will be assessed on merits only and they will not have the added worry of their financial circumstances barring them from accessing legal help. This is a positive step from the Legal Aid Agency and should be welcomed and hopefully further steps can be made to allow more people to access legal services without having to worry about their financial means.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

What will I stand to get out of the matrimonial assets?

Posted on 15th December 2022 by McAlister Family Law

What will I stand to get out of the matrimonial assets?

With the United Kingdom on the cusp of a cost-of-living crisis and inflation at record highs, divorcing couples will likely face concerns now more than ever as to how finances are to be treated upon divorce. The biggest question on the minds of divorcing couples is often, ‘what will I stand to get out of the matrimonial assets?’ Here, Aaron Williams looks at what the court considers when looking at how to divide assets on divorce and how they aim to meet the ‘needs’ of each party involved.

So, what does the Court consider when looking at how to divide assets on divorce?

As with many things, there is no one size fits all answer to separating matrimonial assets. The principal aim of the court is to ensure that there is ‘fairness’. Unfortunately, fairness has a broad horizon in the context of family law, and it is largely left to the discretion of the judge as to the outcome of the matter.

The court has a duty to consider all circumstances of a case, this is done so using the principal piece of legislation in divorce; that of the Matrimonial Causes Act 1973, in particular the factors listed in section 25(2)(a) – (h) which can be found here: – https://www.legislation.gov.uk/ukpga/1973/18/section/25

The phrase ‘needs trumps all’ is often cited when assets are limited assets in matrimonial finance cases. The starting point in any matrimonial finance case is to consider an equal division of what has been built up by the parties during the marriage; however, an equal division of assets is not always appropriate in every case to achieve fairness.

So where does that leave separating couples? Well matters largely come down to the circumstances of the parties, the standard of living and the resources available to meet needs. What was enough to meet the needs of one household may not necessarily be enough to meet two.

When settling the matrimonial assets, there is no discrimination between separating couples regarding their respective roles in the relationship. For example, where one party has typically taken the breadwinner role, whilst the other party is the home maker, their roles are to be regarded as equal irrespective of what they have contributed financially.

So, how does the court implement section 25 of the matrimonial causes act?

When assessing how to separate who should have what proportion of the assets of the marriage, the first consideration of the court is that of the needs of any children.

The court then look to meeting the needs of both parties, principally looking to ensure that each person’s housing needs, and income needs are met.

Looking at the matter holistically the court will principally consider the financial needs, obligations, and responsibilities which each of the parties to the marriage have or is likely to have in the foreseeable future (s.25(2)(b) MCA 1973). The court will look at the general resources of the parties and will broadly separate the needs of parties into capital needs and income needs. Capital needs, is often that of significant single capital outlays, purchasing a property, furnishings, replacement car etc. Income needs is that of the day-to-day costs that parties require on a monthly basis to live.

When trying to determine whether the parties have the means to meet these needs, the court will consider Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. Commonly referred to as the financial disclosure process, the parties are expected to provide ‘full and frank’ financial disclosure. This includes determining through the assistance of expert evidence or agreeing by consent, the value of any assets owned by the parties, including property, businesses, trust assets, chattels, and pensions. The court will also need to ascertain the parties’ respective incomes, whether they have to capacity to increase their income, receive a bonus etc. The process ultimately aims to ensure that no stone is left unturned.

With all this in consideration the court has a great deal of flexibility to in their approach to financial settlement, which in turn allows the court to ensure (as far as possible) that an outcome reached is fair to both parties, and that neither party nor dependent children are left in need. However, this level of flexibility also carries its own disadvantages as it can be difficult for parties to envisage how a judge may determine the respective parties’ needs.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Can my children go on holiday with their grandparents if my ex does not consent?

Posted on 26th August 202224th January 2023 by McAlister Family Law

Can my children go on holiday with their grandparents if my ex does not consent?

Taking children on holiday can often be more challenging between separated parents, but can grandparents take their grandchildren on holiday, and how easy is it in a separated family? Here, Michael Compston looks at court orders, parental responsibility, and offers advice to grandparents looking to plan a holiday.

Firstly, who can take children on holiday? This blog assumes that you and your ex- have separated and no longer live together, but that there is no court order in place; if you do have a court order, you should refer to the warning notices within that order.

Only those individuals with parental responsibility have the capacity to make decisions on who may take children out of the country on foreign holidays. Parents acquire parental responsibility most typically at birth; the mother will acquire it by virtue of being the child’s mother, and the Father will acquire parental responsibility if he is married to the Mother at the time the child’s birth or he is named on the child’s birth certificate as the Father. Similar provisions apply for same-sex couples.

With no court order in place, permission of those with parental responsibility is required before taking children on a foreign holiday. This is the case regardless of who the child lives with. Consent should not be unreasonably withheld – why would a parent not want their child to experience a foreign holiday – but if the holiday is at risk of putting a child in danger, or there are concerns about the children not returning, then consent may be withheld. Consent is often withheld because the ex- is worried about their routine time with the child being interrupted. It may be helpful to consider how any lost time could be made up, if consent is being withheld, as a means to broker an agreement.

Grandparents typically don’t have parental responsibility for children – there are exceptions to this, of course, but we are looking at the general position here. Those with parental responsibility are free to delegate childcare to who they consider appropriate to provide such childcare. We see this when parents work longer hours than children are at school or nursery and grandma or grandad need to collect the children and provide childcare for a couple of hours. We don’t often think about the action of delegating that responsibility as it is simply what many working families do as part and parcel of 21^st century life; everybody pitches in for the childcare, especially when both parents work full-time, or close to full-time jobs.

It is advisable for grandparents to plan their holidays well in advance and they must ensure that they have permission of all individuals with parental responsibility. Written consent is not strictly a legal requirement but it would be a very good idea to have something from everyone who has parental responsibility, in writing, that can be shown to any customs officials querying the legal right to take the children on holiday. This is particularly important when the children have a different surname to the grandparents.

If consent is withheld from any individual with parental responsibility, then the grandparents can apply to court for a Specific Issue Order. They will need permission to make such an application, granted by the court, but getting permission to make the application is usually a formality – this is not the same as permission being given to take the children on holiday. The court will list the matter for a Final Hearing where the parties – grandparents and those with parental responsibility – will give evidence in front of a Judge and have the opportunity to cross-examine (ask questions) of the other parties before the Judge makes a final decision.

The Judge will consider first and foremost what is in the child’s best interests. Judges will encourage the parties to come to an agreement but, if no agreement is reached, then they will decide what is in the child’s best interests and make an order accordingly.

Separated parents and international travel during Covid-19 restrictions

Posted on 18th August 202224th January 2023 by McAlister Family Law

Separated parents and international travel during Covid-19 restrictions

As of August 2022, the Covid-19 pandemic continues to affect international travel, for most, this can mean a last-minute rush to the airport to avoid isolation, but for separated parents the added stress of acquiring consent to travel with their child from the other parent can make holidays even more challenging. Here, Heather Lucy explains how the ongoing Covid-19 pandemic can play a role in organising a holiday between separated parents.

With holiday season in full swing, many parents want to take the opportunity to take their children on holiday. For most families this tends not to be much of an issue, but for families with separated parents there are a few more things to consider. Firstly, if one parent wants to take a child abroad, whether that be permanently or temporarily, the other parent with parental responsibility will need to give consent. However, anyone with the benefit of a Child Arrangements Order, stating that their child is to ‘live with’ them, is legally allowed to remove the child from England and Wales for a period of less than 28 days without the consent of the other parent, even though they have parental responsibility.

What about Covid-19?

As of August 2022, providing you and your child are fully vaccinated, there are 172 countries open to you worldwide, 28 countries that require you to test before you travel, 3 countries that require you to quarantine upon arrival, and only 24 countries fully closed. On the other hand, if either you or your child are unvaccinated or haven’t received all of your vaccinations, only 87 countries are open to you, 71 require you to test before you travel, 19 countries require you to quarantine upon arrival, and 50 countries are fully closed. However, the status of each of these countries so called ‘openness’ can change at any given point.

It is understandable then why any parent may have some reservations around their child travelling abroad with their ex-partner, not least because of the fear that once in the destination country, your ex-partner and child might face a period of self-isolation upon their arrival. Again, changes in the status of ‘openness’ can happen at any time and parents can be caught out with an unexpectedly long stay and issues with accommodation. On top of this, there is the ever-present worry around the risk of the child either contracting Covid-19 or transferring it.

Written consent.

If you do wish to travel abroad with your child, the first step is to seek written consent from the other parent before travelling. If this is something which may prove difficult, try to have an open discussion with the other parent; understand and alleviate any fears that they may have by confirming:

Travel dates and times
Where you will be staying
Explain how you will keep the child safe throughout the holiday
Explain the rules around quarantine and testing if you are traveling to a country where this is required

Compromise and flexibility is key, but what happens if you cannot come to an agreement or if your ex-partner gives consent but then changes their mind?

You can make an application to the court for a Specific Issue Order stating that you can remove the child from the country and the court will make the final decision. On the other hand, if you are the partner who is not traveling and you haven’t given consent and are worried that your ex-partner will travel with your child regardless, you can apply to the court for a Prohibited Steps Order to prevent them from traveling. If you are in this situation, you should seek legal advice urgently as this may also be considered child abduction.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an arrangement can be reached.

If you are affected by any of the issues outlined here, please get in touch with our specialist teams today.

Can I stop my children going on holiday with my ex’s new partner?

Posted on 11th August 202224th January 2023 by McAlister Family Law

Can I stop my children going on holiday with my ex’s new partner?

With the school holidays here and plans being made for families to go abroad or on holiday in the UK, one of the most frequently asked questions is where a parent stands with their children going on holiday with their ex’s new partner. Here Melissa Jones explains the factors at play when the Court decides whether or not a parent can prevent their children from going on holiday with their ex’s new partner.

Perhaps you have not yet met your ex’s new partner and therefore know little about them or maybe the two of you didn’t get off on the best foot.

Before you make any decisions, with family law cases concerning children, it is always best to start from their point of view and think reasonably as to why you might object to the partner tagging along. You might be worried that the new partner has only just come on the scene and is therefore unfamiliar with your children. This is understandable but is unlikely to convince a court that this holiday should not happen if the partner was to attend.

But why should I miss out on time with my children and the new partner gets to spend time with them?

This is understandable, but the court is becoming more familiar with “separated families” or “blended families”. The court will appreciate that parents move on after separation and each should be afforded the opportunity to go on holiday as a family. The focus in this scenario is to ensure you arrange your own holiday(s) with the children so you can enjoy quality time with them, one on one.

It may be that in the future, you may also want to go on holiday with the children and your new partner and you would ideally want this to be fully supported by your children’s other parents.

Can I get a court order to stop my ex taking the children on holiday with their partner?

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility. If both parents share parental responsibility, then what is often overlooked is that your partner will need your written consent in order to take the child out of the United Kingdom (Section 13 (2) of the Children Act 1989). Failing to do so could lead to that parent committing an offence of abduction for which they can be fined, imprisoned or both.

If you object to the partner attending the holiday, you are essentially objecting to the other parent taking the children on holiday. As such, you can make an application to the court for a Prohibited Steps Order, to prohibit the other parent taking the children on the holiday.

Likewise, if the other parent believes your consent is being unreasonably withheld, then they can make an application to the court for a Specific Issuer Order, for permission to take the children on holiday in the absence of your consent.

In either scenario, the Judge will take into account the individual circumstances of each family. The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. The court is unlikely to implement a restriction against the new partner attending in the absence of safeguarding concerns as it is a dispute between the two parents. Any Prohibited Steps Order or Specific Issue Order will relate to the parent either being given permission to go abroad with the children or being prohibited from taking the children on holiday, not in relation to the new partner. It would be very rare for a third party to be named in either order.

When the court denied permission it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only one parent has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday. That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.

Open lines of communication

What is important is communication and trying to agree any travel arrangements between you and the other parent in advance. This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Taking a child on holiday with a different surname

Posted on 2nd August 202224th January 2023 by McAlister Family Law

Taking a child abroad with a different surname

Now that the summer holidays have begun, you may be planning for a family holiday abroad. For most families in the UK with children, planning for a holiday involves taking certain precautions to ensure that they do not encounter any issues whilst travelling. This is particularly important for those parents that will be travelling with a child that has a different surname to them. Here Weronika Husejko offers her top tips for traveling abroad with a child who has a different surname.

What is the current situation?

In recent years, it has become increasingly difficult to travel abroad as a family in these circumstances. Many countries are stricter when it comes to parents travelling with children that do not have the same surname as them. Whilst this is a welcome change which promotes the safety of children all over the world, if you are not aware of this, a trip abroad can quickly become more stressful than anticipated.

How can I prepare?

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent.

Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

Written consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful as in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

And finally…

Make sure to do some research as the rules can vary. It is always a good idea to look into the guidelines of the specific country that you are travelling to. Most airlines should also be able to provide you with some basic advice for your trip.

If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

Can a child apply for financial support in their own right?

Posted on 28th July 202224th January 2023 by McAlister Family Law

Can a child apply for financial support in their own right?

Do the family courts have jurisdiction to grant a financial order on the application of a child against their parents? The short answer is yes, but only in limited circumstances. Here Aaron Williams explains how in one particular case, a child was able to make such an application.

In the novel case of FS v RS and JS [2020] EWFC 63, ‘children’ were able to make such an application. The circumstances in that case concerned an adult ‘child’. The applicant (aged 41) was a university graduate and qualified solicitor, however, due to his mental health hadn’t worked since 2011. The applicant was at the time of his application in further education in London. The applicant’s parents historically provided him with financial assistance by letting him reside in their London property with all outgoings paid for; these circumstances changed however when the applicant’s relationship with his parents deteriorated, and their financial assistance was reduced.

The applicant applied to the court claiming that his parents had ‘nurtured his dependency’ on them financially, and that their removal of financial aid would leave him poor and destitute. His application to the court was threefold, namely under; a) Section 27 of the Matrimonial Causes Act, b) Schedule 1 of the Children Act 1989, and c) the Court’s power to protect vulnerable adults who have the mental capacity ‘to make their own decision (under its inherent jurisdiction).

The court ultimately determined that it did not have jurisdiction to make an order for financial support in the circumstances of this case; but in its determination considered the circumstances such an application could be brought by a child.

Section 27 of the Matrimonial Causes Act 1973

Section 27 of the Matrimonial Causes Act enables the court to make financial provisions where one spouse has been neglecting to maintain the other spouse or a ‘child’ of the family. In this circumstance a child of 16 or older may make an application to the court, but only where one of their parents has previously applied (against the other parent) for a periodical payments order in the child’s favour.

Schedule 1 of the Children Act 1989

Under Schedule 1 children who are over the age of 18 can make an application against their parent, provided: –

The child is, or will be going on to higher education, undergoing training for a trade, profession or vocation; or
There are special circumstances that justify the order.

The court found against the applicant on the issue of higher education, as the judge found that ‘conventional wisdom and practice would suggest that these provisions were never intended to be used and cannot be used to fund the education of a perpetual student’.

‘Special circumstances’ are not defined and are ultimately the discretion of the court but there are several cases which provide examples of what may consider ‘special’.

T v S [1994]: a physical or cognitive disability.
C v F [1998]: where a child was severely disabled and would be dependent on another person for their whole life.

In short, the courts generally consider that a parent’s financial obligation to their child ceases at 18 years of age, and that the child will usually no longer be dependant when they finish their education. It is only in one of the limited circumstances detailed above that an adult child can make an application against their parent for financial provision.

Do I still have to pay child maintenance when my child attends university?

Posted on 21st July 202224th January 2023 by McAlister Family Law

Do I still have to pay child maintenance when my child attends university?

Lots of parents don’t know what level of financial contribution they are required to make (if any) when their children start university, and it’s something that isn’t talked about often. What if one parent wants to continue financial support and the other doesn’t? Here, Frances Bentley explains the requirements for separated parents to pay maintenance throughout their child’s academic career.

Child maintenance (as dealt with by the Child Maintenance Service), is payable until a child is age 16 or up to age 20 if they are in full time secondary education (college education). So, if a child finishes their A-levels/college education at age 18, the paying parent only needs to pay child maintenance until they finish, because university education does not fall under the umbrella of secondary education. So, there is no requirement to continue paying child maintenance beyond that time and when a child goes to university.

Lots of parents will decide to provide their children with a level of voluntary financial support whilst at university, but if one parents states they simply are not going to, the other parent may query whether there is a legal route for them to force contributions to their child’s ongoing educational costs.

If you are in this situation what should you do?

This is something that should be thought about by parents early on because the court’s powers are more limited once the age of 18 is reached. Before considering any potential legal route, parents should keep lines of communication open, to discuss their concerns and the level of financial contribution that might be required.

There will need to be an exercise whereby you calculate what the child’s income vs expenditure will be. For example, are they going to receive grants, loans, or have any income from employment? What will their expenses be, so accommodation costs, bills, books, living expenses? The reason this is important is so that you can calculate what level of shortfall there is and what you need the other parent to pay. This is also what the court would do if a legal route was later pursued.

If there is no progress, then mediation could be a good option to talk through the issues with the other parent – a mediator is a trained professional who will allow you both to have your say and the aim would be to reach a financial agreement that way.

If an agreement cannot be reached, is there a legal remedy that a parent can pursue, once child maintenance has ceased and if the child needs ongoing financial support?

It is possible for a parent to make a court application under Schedule 1 of the Children Act 1989 for periodical payments (financial support) or for a lump sum for a child. However, the court only has powers to make orders until the child is 18, and if the children is over 18, they are required to make the application themselves.

For an application to be pursued, the child must be in “full time” education, or undergoing training, or there would need to be special circumstances (for example the child involved has a disability or vulnerability which means they cannot be financially independent).

When determining a schedule 1 application, the court would look at “all of the circumstances of the case” including:

the income, earning capacity, property and other financial resources which each person has or is likely to have in the future;
the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
The financial needs of the child;
The income, earning capacity (if any), property and other financial resources of the child;
Any physical or mental disability of the child;
The manner in which the child was being, or was expected to be educated or trained.

It is always important to seek early advice if you are wanting to know your options about making a court application. Our specialist team of family lawyers can advise you in respect of your options, prospects of success, whether an application should be made my you or your child directly (taking into account the court’s powers and the children’s age) and undertake a costs v benefits analysis of making any court application on your behalf.