extending a court order to provide uni fees

[determinedmum]

Does anyone know if it is possible to ask the court to extend an order for maintenance for children-currently till they finish secondary education- to be extended until they finish further education?
Essentially I bought my exH out of the family home 10 years ago, as ruled by the court after a contested hearing. At the same time a consent order was made whereby exH paid me money for each of the 2 children till they left school or were 17 whichever was later. He stopped this when the eldest became 18 even though both were still at school at the time. The eldest has now started uni. As exH has not responded to reminders and requests and the younger child is about to leave school I am planning to ask the court to make exH pay the arrears (?how?) to me and also in future pay an allowance directly to the children till they finish further education.
Financially I know exH has no problems: he is just being cussed as he wants the best possible lifestyle for himself.
What is the best way to achieve a contribution to uni costs for the children and payment of the amount he owes me? Can I just apply to have the original order extended?

[Resolution]

Usually just covers to end of first degree. Saves the long suffering parent being held hostage by the eternal student.

There's no set calculation like the CSA, though the CSA calc will be a factor.

You can't split the kids up and have one pay for one and the other for the other.

Freshmint - s27 (6A) says (6A)An application for the variation under section 31 of this Act of a periodical payments order or secured periodical payments order made under this section in favour of a child may, if the child has attained the age of sixteen, be made by the child himself.


But the CMO is made under s23 normally. There is nothing that says that the mother can't apply. Indeed the whole basis of s23 is that the mother receives the PPs on behalf of the child , and that they can be extended over 18 years if the child is in education.

To say that the child is the only one who can apply (and therefore pit them against their father) would put every child in an invidious and intolerable position.

[determinedmum]

Thank you very much.

This makes me feel much better as I didn't think it right to split up the payments for the children either- the suggestion came from ex. Also agree about not pitting children against their parents through the family law courts.

But can mother apply to have the existing maintainence order varied so that the allowance is made directly to the child instead of the mother? This is what I am suggesting.

I cant help thinking that even though one has to maintain a family home for over 20 weeks in a university year, that it is unlikely an exH will continue to pay the mother. Anyway the point is to help fund uni, to help ensure that exH contributes to (expensive) education and decrease future debt for the children.

[freshmint]

no you have to read s23 properly
the effect of it is the mother can apply for a CHILD for maintenance and that can only extend to over 18s when they are in education

but if they are not a child at the time of application they cannot apply. the child must apply for him/herself.

I am absolutely certain of this.

It is invidious and anyone who has sat in a room while an adult child is applying against a father who has recently been made redundant from an executive position, and the child is saying "you've only made 16 job applications in 12 months? But I applied for 20 bar jobs in a weekend, you aren't trying hard enough" knows exactly how invidious and intolerable it is.

But that IS the reality

[freshmint]

yes child MAy between 16 and 18 but over 18 they must as they are no longer a child in respect of which the mother may make an application

trust me

[Resolution]

23. On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say?
    
    (d)an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified;
    
    subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.
    
    
    29 Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour.E+W
    (1)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.
    3)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?
    (a)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
    (b)there are special circumstances which justify the making of an order without complying with either or both of those provisions

[Resolution]

This seems to suggest that the parent can apply on behalf of the child at any age.

[mumoverseas]

Have to agree about the first degree point. I used to always include that in Consent orders just in case...

[Resolution]

See what you mean about CPD!

This is one of those things that I've always taken for granted is the case - I've done them in the past anyway!

I'm prepared to be shown up as an ignoramus by freshmint though.

[mumoverseas]

Well I wouldn't say you were an ignoramus. I think it is how you interpret the rules and as we know, different DJs view things differently.

[freshmint]

Hello just come back from court and checked it with a DFJ

Over 18s will have to apply in their own right as they are no longer children

Mother cannot apply to extend or vary since the order as relating to that child ceased upon leaving secondary education/turned 18 (whatever the wording is) so there is no order in respect of that child to extend or vary

Mother should have done it before the term ended or Child does it now.

Well that is the word from the Thames Valley anyway

[freshmint]

ie doesn't fall within 23(d) or 29(1) because there is no child. That child is now an adult

[WkdSM]

Wow.
When I went to college I never expected my parents to pay - I did get a grant (yes showing age) but I also worked at weekends and worked every holiday so that I could actually afford food. Grants did not cover everything at all. I think I actually got about £20 a week to pay rent food travel etc.

My SS is looking at applying to go to Uni after 2 years out of school. Does this mean he could come to us and ask for maintenance?

We have had a similar situation whereby when the CO ran out (at 17) the ExW had to apply via the CSA as the CO was no longer valid.

[Resolution]

So how do you account for s29(3)? It hasn't been repealed. If you can't apply for a CMO for a child over 18, why does 29(3) say that doesn't apply to a child in education, so 29(1) can't be used to deny a mother relief.

The definition fo child anyway in s52 makes no reference to age...

your turn.

[freshmint]

because it is used to justify making an order which will extend past the child's 18th birthday if they are in education /have additional needs

well that is what I have always understood and that is what the CJ I spoke to (who as I say is the dfj) told me he understood

If you read the notes to s15 of the children act the one headed Orders for Financial Relief for persons aged over 18 says that if there was an order in force under the MCA before the child reached 16 the CHILD can apply to extend [but obv it can't if the order has ceased, it would have to apply] but if no order had been made then the CHild applies under schedule 1 para 2 of the CA if they are in education or have special needs.

Nowhere does it talk about an adult applying for them

[stubbornhubby]

I don't understand how this works, and why divorce is relelvant?

• can an 18 year old take her still-married parents to court to force them to provide money to fund her uni career? (no, surely)
  

• so what's the reasoning that allows her to take her divorced parent to court for money?

[Resolution]

Strokes chin and lights imaginary pipe in quiet contemplation.

I'll sleep (or not!) on it.

[freshmint]

a bit of judicious googling might throw up some commentary I suppose

[mumoverseas]

[freshmint]

[mumoverseas]

oh jolly poor show. At my old firm we used to have posh sandwiches from M & S when we did LNTV CPD. Would rather have a

[freshmint]

don't you know there is a recession on?

[determinedmum]

Luckily I made the application while the original consent order was still in force. Does that increase the chances of getting an extension plus variation without 18 yr olds making sarky remarks in court to either parent?

Its bad enough them (DC) commenting on how little homework I do when in the privacy of one's home. Saying I did A levels, degrees, massive overtime etc years ago doesn't cut it.

Though perhaps they might be silent in court, as not being the children of lawyers it is (very) intimidating. Incidentally, to an applicant, the variations in interpretation which can then, when translated to a judgement either way, go on to very considerably alter children's future finances, are not necessarily reassuring. I really appreciate all the comments though.

[Resolution]

We'll try and achieve consensus for you.

[freshmint]

if you made the app when the consent order was in force then your child will have nothing to do with it, it will be between you and your ex.

so that's good!

[determinedmum]

Encouraging.

How does mediation fit in with forms E and hearings? Is the idea that one thrashes thing out at mediation then takes the resulting consent order to court for a final judgement?