Thought leadership: Children Law
What constitutes ‘special circumstances’ for the purposes of financial provision for ‘adult children’ under Schedule 1 Children Act 1989?
The recent Court of Appeal decision in UD v DN [2021] EWCA Civ 1947, [2021] 1 WLR 595 confirms the limited circumstances in which the court may legitimately make financial provision for children with the intention of benefitting them after they have reached the age of 18.
Paragraph 1 of Schedule 1 to the Children Act 1989 makes provision for orders benefitting children (i.e. under the age of 18) and usually such orders are made under Schedule 1. Presently there are express limitations on the duration of periodical payments made under Paragraph 1 which commenced before the child turned 18, and may continue after that child’s 18th birthday, but only if he or she is still in education/training, or if there are special circumstances.
Paragraph 2 provides that the court may make an order “on an application by a person who has reached the age of 18” for i) periodical payments and/or ii) a lump sum, provided that the person benefitting from the order (i.e. the ‘adult child’) is i) undergoing training or education (usually to first degree level), or ii) there are special circumstances which justify the making of an order. This provision can be made for an ‘adult child’, who issues the application himself/ herself under Paragraph 2, if the adult child is still in education/training, or if there are special circumstances.
The court could as an alternative make an order for one outright payment to a minor child that would then benefit the child beyond the age of their 18th birthday. The court has discretion when it comes to making capital orders that are made before the child attains 18 but goes on to benefit that child passed the age of 18.
Prior to the case of UD v DN, special circumstances was understood to be narrowly defined as:
“children are entitled to provision during their dependency and for their education, but they are not entitled to a settlement beyond that, unless there are exceptional circumstances such as a disability, however rich their parents may be.”
The case is UD v DN has considered the following important issues:
1. Focussing on dependency rather than vulnerability
2. The role of the paying parent’s conduct has no role in the consideration of special circumstances
3. The effects of the domestic abuse are only relevant if linked to the dependency for financial need because of the abuse
4. The impact of wealth should not in itself be an exceptional circumstance
In this case Moylan LJ made clear on appeal that provision for adult children who are not in education or training is limited to ‘special’ or ‘exceptional’ circumstances, and
that such circumstances must be ‘relating to the children’ … ‘such as a physical or mental disability, which create a financial need.
Dependency and vulnerability features may both be present in a case, but they are distinct characteristics with only dependency being required to be established to meet the test for special circumstances. So children may be vulnerable due to a variety of factors, including abuse, but not necessarily dependent on the need for financial provision.
Conduct of the parties is not a factor included within the statutory checklist under Schedule 1. The case law suggests that ‘special’ or ‘exceptional circumstances’ should not include consideration of the conduct of the parent, but rather the circumstances of the child and any need/dependency of that child.
The effects of domestic abuse on a child may have some bearing when linking the abuse to the long term effects the abuse can link to the need for financial provision. It was held in this case that the effects of the domestic abuse were relevant, not because they created an ongoing dependency for the children (and specifically not because they had an ongoing financial need for therapeutic support), but because of their more general vulnerability to F’s potential future financial ultimatums.
The case also confirmed that having wealthy parents should not constitute special circumstances for the purposes of the statute. Wealth will always be a factor when considering making awards for children under Schedule 1 as ‘income, earning capacity, property and other financial resources’ of the parties is a specified factor under paragraph 4(1).
In conclusion the test for special circumstances under Schedule 1 remains narrowly defined and the four above features should be considered when assessing if you can argue this ground under Schedule 1.
