How long are parents expected to support their children?
- AuthorKaren Johnson
English law recognises the rights and responsibilities of parents towards their children by way of something called parental responsibility.
This is what allows parents to make important decisions regarding their children.
It is something which has decreasing power and effect in most cases as the child becomes older and increasingly able to make their own decisions. By the time they are 18, they are considered to have reached their majority. They can:
- get married
- get tattooed
- buy a house
- and are no longer required to remain in education etc.
However, writing as a parent, I am not so sure that the definition is so clear cut.
I have two amazing kids who I will still refer to and consider as my children even when they are in their 30’s, happy and healthy and perhaps with a family of their own. I can not yet quite imagine them living independently but then they are still only 12 and 15 and in all honesty, I am in no rush for them to grow up. What I do know, is that even when they are over 18, my role as their mother will not simply end.
So what is the relevance of the question?
Well, it relates to an interesting case that recently came before the court involving an application by a 41 year old “child” seeking maintenance from his parents. The case known as FS vs RS and JS  EWFC 63 and heard by Sir James Munby is considered to have been unprecedented.
The applicant was a 41 year old man, who was seeking an order requiring his wealthy parents to financially support him. The background, we are told, is that his parents are married and live together in Dubai. They have financially supported their son throughout his years. This support has included permitting him to live in a flat in central London and paying his utility bills.
Unfortunately, for the son, it would then appear that his relationship with his parents has broken down and as a result, they were no longer willing to continue to provide such extensive financial support.
The applicant is apparently an educated man. He is a qualified solicitor, has a Masters in taxation and is studying for his chartered tax advisory and law school admissions. However, we are also told that he has been unemployed since 2011 and he says that he has various difficulties which he submitted constituted “special circumstances” and meant that he should be considered as “vulnerable”.
He sought to make his application under S27 Matrimonial Causes Act 1973, Schedule 1 of the Children Act 1989 and pursuant to the courts inherent jurisdiction which applies to adults who are vulnerable.
S27 Matrimonial Causes Act 1973 enables "Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) –
(a) has failed to provide reasonable maintenance for the applicant, or
(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family."
This provision also provides that an application for variation of a periodical payments order in favour of a child can be bought by the child himself if over the age of 16.
Also, where an order has been made in favour of a child and has ceased to have effect when the child reached the age of 16, but before they are 18, then an application can be made before the child turns 21 for an order. If the child is or would be in education or training or there are special circumstances and this revives the previous order. Both of these provisions require there to have been a previous maintenance order.
The Judge was asked to consider interpretation of the provisions differently and read in the ability of the child to apply even where there is no previous order. Sir James Mumby did not feel that this was possible and considered that there is no freestanding provision in the Matrimonial Causes Act enabling a child to claim maintenance in a subsisting marriage.
Schedule 1 of the Children Act 1989 enables a person 18 or over to make an application if the applicant is, will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or there are special circumstances which justify the making of an order under this paragraph. The court is able to order one or both parents to pay periodical payments or pay a lump sum.
Unlike the provision set out in the Matrimonial Causes Act, this does not require a previous maintenance order to have been in place and in fact, requires that there has not been. However, critically, no order can be made if the parents are living with each other in the same household. Once again, the judge was invited to interpret the provisions so that the problematic clause only required the parents to be in a different household to the applicant but this was also unsuccessful.
The third basis of the claim was the court’s “Inherent Jurisdiction”. This has been described as a “safety net which lies behind all statute law… capable of filling gaps left by the law”. The claim was challenged on the basis that maintenance was something created by statute and not the courts and that as a result it was not open to the court to use its inherent jurisdiction in this way. This was agreed by Sir James Mumby.
The judge also considered that the inherent jurisdiction could not be used to compel another to provide money or services, that what was being asked fell far outside the accepted parameters of inherent jurisdiction and did not allow a judge to override statute.
Having failed to establish a ground for his claim, the applications were dismissed.
Having considered the judgement, I think that it is possible to feel sympathy for both parties. The breakdown of a relationship between parent and child is never going to be pleasant.
There is however a significant difference between an adult child who chooses a life of perpetual study and refuses to work towards independence and an adult child who because of disability, can not live independently. However, this case did not go on to draw those comparisons as it failed at the first hurdle.
It is important to appreciate that had the circumstances of the case been different, such as the parents having separated or divorced or the application being brought by one of the parents on behalf of the adult child, then the outcome may have been different. As a dependant adult child, he would also have a potential claim under the Inheritance Provision for Family and Dependants Act in the event that his parents died.
There are always going to be cases which fall through the gaps. Human lives and relationships are infinitely diverse and the probability of legislation being drafted with every eventuality in mind is unlikely. It may be that there is scope for a call to amend legislation to plug this gap. However, circumstances which were unprecedented in their presentation to the court and which could be abused by those with a Peter Pan complex and desire to never grow up, may lack sufficient backing to be taken seriously.
We are able to advise clients in relation to issues such as maintenance and all aspects of relationship breakdown. For a free initial chat to see how we can help you, I can be contacted on 01206 217305 or firstname.lastname@example.org.