Oliver is 17 and is studying for his ‘A’ Levels.  His parents divorced years ago, and he remained with his mother.  A final order was made within the divorce proceedings, which provided for Oliver’s father to pay child maintenance to his mother at quite a significant rate.  Oliver’s father did so until fairly recently, but his relationship with Oliver was never good and, over the years, they became completely estranged.  They haven’t spoken now for about 2 years, and his father refuses to take Oliver’s calls.

Oliver’s mother is ill.  There was a clean break between her and Oliver’s father at the time of the divorce, but due to her illness she was unable to work, and was forced to eat into her capital in order to make ends meet.  She is now not in a position to support Oliver herself, and Oliver wants to go to university.

Oliver’s mother can’t afford to instruct a solicitor to enforce the maintenance order, so she applies to the CSA.  She knows that Oliver’s father is relatively wealthy and she knows that, at least until Oliver finishes his A levels the father will have to pay 15% of his net income.  She waits patiently for the assessment.  When it comes, she can’t believe her eyes.  Oliver’s father is required to pay only £5 per week!

Oliver’s father is much older than his mother, and is now in receipt of the state pension.  As such, he is automatically assessed at the flat rate.

There’s nothing for it:  Oliver’s mother must apply under the variation provisions for an increase.  She starts the process, but inevitably it takes ages, and Oliver finishes his A levels before the variation application is determined.  The CSA no longer has jurisdiction.

Oliver starts university.  He was able to save some money over the summer with which to pay his tuition fees, and he is surviving for the time being on his student loan.  Then, sadly, his mother dies.

Oliver is desperate, so he sees a solicitor for a free half hour.  This is what he is told:

• The old maintenance order was to last until Oliver had attained the age of 18 or ceased full time secondary education, whichever was the later.  Accordingly, it ended on his 18th birthday, and there is nothing to enforce.
• The ancillary relief proceedings died with Oliver’s mother.  He cannot intervene in those proceedings and seek a further maintenance order. 
• Under Schedule 1 Children Act 1989, the court could entertain an application by Oliver for maintenance.

The solicitor opens his Red Book.  His eyes blur in horror.  This is what section 2(3) Schedule 1 tells him:

An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.

A maintenance order was in force with respect to Oliver immediately before he reached the age of 16.  He can’t apply under Schedule 1.  He can’t apply in the old divorce proceedings.  And there is no-one else who can apply for him.

 If you require any further information on the points raised in this blog or wish to discuss any issues within it, please contact Rachel Osgood at rachel.osgood@parissmith.co.uk