In recent weeks A-level students have faced huge turmoil as a consequence of the A-level results chaos. Many will now be considering whether to proceed to University in the Autumn, or to take a gap year and defer their University place until 2021 or beyond. As part of their decision making, students will need to consider how they can fund their undergraduate degree education, particularly in circumstances in which the cost of tuition fees alone in the UK can be up to £9,250 per year, not taking into account accommodation costs and other discretionary spending.
It is possible in certain circumstances for students to make an application for financial provision from their separated parents pursuant to Schedule 1 Children Act 1989 (Schedule 1). This may be necessary if students are ineligible for student loan funding, or for those facing a shortfall even with funding.
Who can apply and What Orders can the Court make?
An adult child may apply for financial provision pursuant to Schedule 1 from their parents:-
- Provided the child has reached the age of 18 and is in, or will be in education or training.
- If exceptional circumstances apply, for example a child has a disability.
- Provided their parents are not living together, the application can be made against either parent and the Court can make an Order against both parents. Whilst Schedule 1 is normally a piece of legislation used in the context of applications by unmarried parents on behalf of children, an application made by an adult child can be made against parents, including if their parents are married albeit they must not be living together. An application can be made by a child against both a parent and step parent.
- It is possible for an adult child to apply for periodical payments (meaning ongoing maintenance payments) or a capital lump sum. Therefore, this could cover the cost of tuition fees, accommodation costs and other discretionary spending costs.
What is the position if there is an existing Court Order?
An adult child is prohibited from applying for financial provision if, immediately before their 16th birthday there is an existing Court Order for the payment of their maintenance. This will be an Order made in respect to historic divorce and financial proceedings or Schedule 1 proceedings. In those circumstances, if there was a periodical payments order which ceased upon a child reaching the age of 17 or completing full time secondary education and the child intended to progress to University education, although the child could not apply, the adult child's parent could apply for periodical payments or a lump sum to meet University costs. However, crucially the application must be made whilst the child is under the age of 18. This is a rather odd lacuna in the Schedule 1 legislation which means that if University education costs are not properly dealt with initially in a historic Order, an adult child may be prevented from applying for University costs.
What does the Court take into account in making an Order?
In making an Order pursuant to Schedule 1, the Court must take into account all circumstances of the case including:-
- The income, earning capacity, property and other financial resources which any parent of the child has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which any parent of the child (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 way the child was being, or was expected to be, educated or trained.
In the case of an application against a step parent, the Court will also take into account whether they assumed responsibility for maintenance of the child knowing that the child was not their child and further, the liability of any other person to maintain that child.
Case law
The decided cases on applications by, or on behalf of children over the age of 18 show that:
- Unless there are "special" or "exceptional" circumstances (such as disability), children are highly unlikely to succeed in a claim under Schedule 1 for financial provision, except during their dependency and for their education.
- There is no absolute rule that the relevant age is 18 rather than 21, Schedule 1 does not preclude a settlement extending into adult years. However, ordinarily the Court will not make an order extending beyond 18 or full time education including University education.
- The Court will ordinarily recognise a child taking a 'gap year', whether after school or after university, or choosing to defer their attendance at university and provisions to this effect should be clearly agreed in any settlement.
Therefore for a child of separated parents who intends to commence University but may have problems with funding, careful consideration should be given to whether an application should be made, timing and whether the application should be made by them, or a parent on their behalf.