![FA-2024-000131 - [2025] EWHC 2361 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
The Law
The Law
I begin by considering Section 29 Matrimonial Causes Act 1973. It states:
29.— Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour.
Subject to subsection (3) below, 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.
The term to be specified in a periodical payments or secured periodical payments order in favour of a child may begin with the date of the making of an application for the order in question or any later date or a date ascertained in accordance with subsection (5) or (6) below but—
shall not in the first instance extend beyond the date of the birthday of the child next following his attaining the upper limit of the compulsory school age (construed in accordance with section 8 of the Education Act 1996) unless the court considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date; and
shall not in any event, subject to subsection (3) below, extend beyond the date of the child's eighteenth birthday.
Subsection (1) above, and paragraph (b) of subsection (2), shall not apply in the case of a child, if it appears to the court that—
the child is, or will be, or if an order were made without complying with either or both of those provisions would 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
there are special circumstances which justify the making of an order without complying with either or both of those provisions.
Any periodical payments order in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of the death.
Where—
a maintenance calculation (“the current calculation]”) is in force with respect to a child; and
an application is made under Part II of this Act for a periodical payments or secured periodical payments order in favour of that child—
in accordance with section 8 of the Child Support Act 1991, and
before the end of the period of 6 months beginning with the making of the current calculation
the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.
For the purposes of subsection (5) above, “the earliest permitted date” is whichever is the later of—
the date 6 months before the application is made; or
the date on which the current calculation took effect or, where successive maintenance calculations have been continuously in force with respect to a child, on which the first of those calculations took effect.
Where—
a maintenance calculation ceases to have effect by or under any provision of the Child Support Act 1991; and
an application is made, before the end of the period of 6 months beginning with the relevant date, for a periodical payments or secured periodical payments order in favour of a child with respect to whom that maintenance calculation was in force immediately before it ceased to have effect,
the term to be specified in any such order made on that application may begin with the date on which that maintenance calculation ceased to have effect , or any later date.
In subsection (7)(b) above—
where the maintenance calculation ceased to have effect, the relevant date is the date on which it so ceased
Section 29 provides that no financial provision order or property adjustment order shall be made for children who have reached the age of eighteen unless they are in continuing education or there are special circumstances such as physical or mental disability. It also provides that in the first instance a child maintenance order should be specified to extend to the age of eighteen.
Section 29(2) and (3) of the Matrimonial Causes Act are to the same effect as paragraph 3(1) and (2) of Schedule 1 of the Children Act 1989 subject to one express limitation on the power to make a lump sum which does not come into play in this appeal. The similarity is relevant because in the context of considering an appeal against an order made under Schedule 1, Moylan LJ in UD V DN (Schedule 1 Children Act 1989: Capital Provision) [2021 EWCA Ci 1947 answered the question – does the court have the power to make an order under paragraph 1 of Schedule 1 of Children Act 1989 when the subject child has attained the age of 18 between the date of the application and the date of the proposed order?
In UD V DN (above) the Court of Appeal, Moylan LJ giving the lead judgment, held that a court had the power to make an order under paragraph 1 of Schedule 1 of the Children Act 1989 when the child concerned had attained the age of eighteen between the date of the application and the date of the proposed order – Jones v Jones [2001] Fam 96. If that were not the case a properly constituted application could be defeated by the passage of time. The court’s power was established as provided by the opening words of paragraph 1(1) Schedule 1 of the Children Act. The court’s power was based on the relevant child being under eighteen at the time the application was made not heard. The language of paragraph 1 was directed to that date and not the date of the order. Further it was held that the authorities clearly demonstrated that the court had power to make an order for financial provision which would benefit that child when they were over the age of eighteen if that child was in education or training or there were special circumstances. Such power as there was to order financial provision in favour of a child over eighteen who was not in education or training was limited to special or exceptional circumstances relating to the child, such as a physical or mental disability,
In Tattersall v Tattersall [2018] EWCA Civ 1978 Moylan LJ again gave the judgment of the court. The Court of Appeal held that there is no principle which requires a judge to adjourn an enforcement application pending determination of a variation application. The objections to such a principle are obvious. It would enable the process to be too easily manipulated, if not subverted. It is a question for the judge to determine having regard to the circumstances of an individual case.
At paragraph 31 of his judgment Moylan LJ considered that no formal process was stipulated for an application under s.32 Matrimonial Causes Act 1973. In that context he stated that such applications were often informally made as they arise in the course of the court’s determination of other more substantive applications. He said what is procedurally required will depend on the circumstances of the particular case.