C v F (Disabled Child: Maintenance Orders)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE HUTCHISON,LORD JUSTICE THORPE,Lady Justice Butler-Sloss |
| Judgment Date | 25 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1125-1 |
| Docket Number | LTA 97/5765/J |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 1997 |
[1997] EWCA Civ J1125-1
Lady Justice Butler-Sloss
Lord Justice Hutchison
Lord Justice Thorpe
LTA 97/5765/J
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(SIR STEPHEN BROWN THE PRESIDENT OF THE FAMILY DIVISION)
Royal Courts of Justice
Strand
London WC2
MISS C MCLAREN (Instructed by Cohen & Naicker, London, W9 3DY) appeared on behalf of the Appellant
The Respondent (Father) appeared in person
MR ANDREW MOYLAN (Instructed by Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Amicus
On the 21st December 1979 T. was born. His parents were not married and the mother sought financial support from the father under the Affiliation Proceedings Act 1957. An order was made in the Magistrates Court on the 10th March 1980 which was subsequently varied upwards on two occasions. It came to an end on T.`s 16th birthday. On the 3rd May 1996 the mother applied to vary and extend the affiliation order to his 19th birthday on the ground that he was still in full-time education. The relevant Act is no longer the Affiliation Act but the Children Act 1989 and on the 16th December 1996 the Family Proceedings Court at Redbridge dismissed the affiliation application and heard an application based on Schedule 1 of the Children Act. They heard evidence from both parents, including evidence from the mother about T.`s state of health. According to the Justices` Reasons:-
"The court was informed that T. was born severely disabled. He suffers from autism and hyperactivity. He is visually impaired, doubly incontinent and brain damaged. He will be dependent on others for the rest of his life."
The magistrates made careful findings as to the respective finances of both parents and the needs of T. They took into account his disability allowances and made an order that the father pay �190.58 a month until his 19th birthday and a lump sum of �1000. They held that they did not have jurisdiction to make an order extending beyond T.`s 19th birthday.
The mother appealed to Family Division of the High Court and the appeal was heard by Sir Stephen Brown P. and dismissed by him on the 12th March 1997. He agreed with the magistrates that there was no jurisdiction to extend the order beyond the age of 19 and considered they were right in their approach to the amount awarded by way of maintenance. The mother appeals with leave of this Court from that decision. Both before the President and this Court the father has represented himself and supports the decision of the magistrates. The appeal raises an issue, so far not considered by this Court, as to the interrelation of the Children Act and the Child Support Act 1991. On a request by this Court to the Attorney-General, Mr Moylan has acted as Amicus Curiae and we are indebted to him for his written and oral submissions.
The two main issues on the appeal are
1. whether a court can extend a maintenance order beyond the age of 19 under Schedule 1 to the Children Act in the light of the provisions of the Child Support Act.
2. Did the Family Proceedings Court fetter its discretion in the assessment of the financial provision appropriate for the needs of T?
The jurisdiction of the court to order financial provision for children whose parents were not married is now to be found in section 15 and Schedule 1 of the Children Act 1989. Schedule 1 provides in paragraph 1 for orders to the applicant or to the child. The term to be specified in an order for periodical payments shall not, by paragraph 3(1)(a), in the first instance extend beyond the child`s seventeenth birthday or in any event beyond the child`s eighteenth birthday. However by paragraph 3(2) an order may be extended if either the child is or will be receiving some form of education or training, or by paragraph 3 (2)(b):-
"there are special circumstances which justify the making of an order without complying with that paragraph".
In T v S (Financial Provision for Children) [1994] 1 FCR 743 Johnson J had to consider paragraph 3(2)(b) of Schedule 1 in relation to five minor children of parents who did not marry. He said at page 750:-
"Whilst I do not think that the category of "special circumstances" should be necessarily always so limited, it does seem to me that in its reference to special circumstances in relation to the duration of periodical payments, Parliament was intending the court ordinarily to look at special circumstances related to the children �such as for example, some physical or other handicap."
I respectfully agree with the view expressed by Johnson J and there is no doubt that on the present sad facts T. comes within the requirement of special circumstances.
There is, therefore, no difficulty in coming to a decision in principle in this case to extend a periodical payments order beyond the age of nineteen. There is indisputably jurisdiction in the Children Act to extend indefinitely a periodical payments order for the benefit of someone over the age of 19. It is part of the philosophy of the Children Act that a young person in T.`s position with a total dependence upon others for the rest of his life should look for continuing financial support from his parents for whatever period may be necessary. The question is whether section 8 of the Child Support Act prohibits the application of the power to extend orders contained both in the Children Act and the Matrimonial Causes Act.
I turn now to the framework of the Child Support Act which is an Act to make provision for the assessment, collection and enforcement of periodical maintenance payable by certain parents. The Act provides a statutory framework for maintenance of children which is designed to provide an administrative process to take the place of court orders.
The substitution of assessment for court order is provided in section 8, headed the "Role of the courts with respect to maintenance for children". Section 8 states:-
"(1) This subsection applies in any case where a child support officer would have jurisdiction to make a maintenance assessment with respect to a qualifying child and an absent parent of his on an application duly made by a person entitled to apply for such an assessment with respect to that child.
(2)��.
(3) In any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and absent parent concerned."
The embargo on the court making maintenance orders where a child support officer may make a maintenance assessment does not apply in certain specified circumstances. Section 8 (5) deals with maintenance orders which reproduce maintenance agreements. Section 8(6) provides for a top-up of the maintenance assessment already made. Section 8(7) provides for payment of the expenses of education or training. Section 8(8) is the exemption relied upon in this appeal. It provides:-
"This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if-
(a) a disability allowance is paid to or in respect of him; or
(b) no such allowance is paid but he is disabled,
and the order is made solely for the purpose of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of any expenses attributable to the child`s disability."
T. clearly comes within the definition of disability contained in section 8(9). Section 8(11) explains `maintenance order` as an order "which requires the making or securing of periodical payments to or for the benefit of the child and which is made under" a number of specified statutes including Schedule 1 of the Children Act and the Matrimonial Causes Act 1973.
The President held that the exemption given by section 8(8) was by way of a top up which might be made in addition to a maintenance assessment and did not allow the court to make a free-standing order under Schedule 1 of the Children Act. The jurisdiction to make the top up order was derived from section 8. The jurisdiction to extend orders indefinitely provided by Schedule 1 paragraph 3(2)(b) was therefore restricted by the limitations imposed on the meaning of `child` by section 55 of the Child Support Act. Section 55 states:-
"(1) For the purpose of this Act a person is a child if-
(a) he is under the age of 16;
(b) he is under the age of 19 and receiving full-time education (which is not advanced education)-
(i) by attending at a recognised educational establishment; or
(ii) elsewhere, if the educationis recognised by the Secretary of State; or
(c) he does not fall within paragraph (a) or (b) but-
(i) he is under the age 18, and
(ii)prescribed conditions are satisfied with respect to him."
The President agreed with the magistrates that the duration of
the order was limited to the age of nineteen.
Both Miss McLaren for the mother and Mr Moylan as Amicus argued to the contrary. I agree with their submissions. It is to be noted that there is no power in the Child Support Act to make maintenance orders. Orders in cases falling within the section 8 exemptions are made under the provisions of other statutes listed in section 8(11). The exemptions are expressed in terms that section 8 shall not prevent a court from exercising any power which it has to make a maintenance order. It would be odd, in my view, if the Child Support Act nonetheless restricted the duration of such orders to the limitations imposed by section 55 on the process of assessment. Such a limitation would fly in...
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