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.