Once upon a time, there lived a king and queen who were supposed to live happily ever after. They were not rich, but they were blessed with a child.
After some years, the queen fell ill, and the king left to pursue other interests. As part of their divorce settlement, the king was ordered to pay maintenance to the queen for the prince, but his clever lawyers persuaded the queen to accept a clean break.
The king gradually rebuilds his empire. By the time the prince is ready to go to university, the king’s wealth knows no bounds. The queen, on the other hand, is dying. The prince goes on a quest to persuade his father to fund his studies, but the king will not be persuaded. The maintenance order expired upon the prince’s 18th birthday, just after completion of his secondary education, and his mother cannot support him.
In desperation, the prince consults the mysterious and magical books of CSA legislation. No good. Although the king is rich beyond all imagining, he is also in receipt of a state pension. As such, he will automatically be assessed at £5 per week. A spell to vary the flat rate will take too long: by the time the charm works, the prince will be 19.
Sadly, the queen dies. She leaves all she has left in the world to the prince. He considers buying some magic beans, but instead pays for his first year tuition fees at university. He goes to see a magician to find out if there is anything he can do to secure financial support from the king. There is nothing. He can’t apply in the old divorce proceedings, because they died with his mother. Schedule 1 is no good because there was a maintenance order in force immediately prior to his 16th birthday.
What can he do?
When I first joined a law firm, 24 years ago, things were very different. Take fax machines, for example. The size of garden sheds, they were thought to be the last word in office technology. Dictation was still taken by shorthand. And computers – well, if your firm was lucky enough to have one, an entire room would be given over to the mainframe, blinking and stuttering in a manner mysterious to everyone, and there was no such thing as a local printer: down two flights of stairs, along a mosaic-tiled Victorian corridor, past the smoking-room (clouds of smoke billowing therefrom), into the basement you would find one printer serving the entire practice and staffed by a cantankerous office manager (previously the senior partner’s secretary).
It wasn’t only office equipment that, with the benefit of today’s technology, appears medieval. Which of our fresh-faced young lawyers today could believe that, back then, “lady” partners often left the practice when they had children; “lady” solicitors could not wear trousers into court (thankfully, skirts were allowed); and it wasn’t unusual for the entire practice to be run by a former secretary (see above). Equality legislation and flexible working were many years in the future.
And what of the law? Unrecognisable in some ways to our young solicitors. For example, children of unmarried parents (or “illegitimate” children as they were called then) were openly treated like second-class children, with fewer rights and less protection than their “legitimate” counterparts. What rights they did have were tangled up in an antediluvian maze of legislation, added to and amended over the years, sometimes without consistency and always with a tacit acceptance that it was right to discriminate against such children.
In 1982, the Law Commission reported to Parliament on the issue of family law reform. By then, there was a basic policy that the legal position of legitimate and illegitimate children should be assimilated. An important distinction which it highlighted was the inability of an illegitimate child in favour of whom there was no previous order to apply for financial provision from his parents once he had reached the age of 18. The relevant legislation dated back to 1971 (the Guardianship of Minors Act) (“the 1971 Act”) and 1957 (Affiliation Proceedings Act) respectively. The Law Commission duly recommended amendment of the 1971 Act to allow a child who has attained the age of 18 to apply to the court in certain circumstances for an order for periodical payments or a lump sum.
This was the origin of Schedule 1 to the Children Act 1989. Annexed to the Law Commission report was the draft Family Law Reform Bill. Clause 8 of the draft bill (inserting a new section 11B into the 1971 Act) would allow any person who has attained the age of 18 (whether or not his parents had been married to each other) to apply to the High Court or a county court for an order for periodical payments and/or a lump sum, subject only to the applicant remaining in full time education or training or special circumstances existing. Intriguingly, we also see for the first time what would become the mysterious, arguably incomprehensible, and sometimes frustrating section 6(3) of Schedule 1.
An application may not be made under this paragraph by any person if, immediately before he attained the age of sixteen, a periodical payments order was in force with respect to him.
Section 6(3) – as anyone who has been frustrated by it will know – is the prohibition on an adult child applying for maintenance under Schedule 1 when an order existed for that child’s benefit immediately prior to his 16th birthday. As in the example above, the prince couldn’t apply pursuant to Schedule 1 for maintenance to help him through university due to an order having already been made within the divorce proceedings and which was still in force immediately prior to his 16th birthday, even though it had expired before he went to university.
I was recently involved in a case in which an adult child in her mid 20s was seeking substantial maintenance from her father to help her through university. There had been no direct communication between them for some years. A maintenance order had been in force until her 18th birthday, but had come to an end with her majority. A protracted period of negotiation inevitably led to consideration of whether or not we should issue proceedings. Ideally, we would have done so under Schedule 1. The reason for that was twofold: first, in relation to costs, the presumption of “no order” would not apply; second, how much more sympathetic would a judge be to a child being forced by her father to go to court and subject herself to cross examination?
However, we did not have that option. The old maintenance order meant that we would have been forced to issue in the old divorce proceedings. In my case, that wasn’t a problem: the mother was still alive; therefore the proceedings revivable. But it got me thinking. What if she hadn’t still been around? Like the prince, the daughter would have been left without redress. What then was the rationale behind the provision?
That was when I began my journey back in time: to 1982 and the Law Commission report on family law reform which aimed to bring about equality between legitimate and illegitimate children.
It is quite clear from the report that the purpose of clause 8 of the draft bill was to “confer on all children of 18 and over, not just those born outside the marriage, a new right to apply at their own instance for financial provision if they are undergoing education or training or if there are special circumstances”. It was noted that the children of divorcing parents already had that right. But illegitimate children and children of married parents who had not divorced did not. The report talked about whether the separation of the parents should be a precondition of the jurisdiction, and it suggested that the jurisdiction should be exercised sparingly and only by the High Court or a county court. What it did not do was to explain why the jurisdiction should not be exercised when an order had already been made, but had come to an end. The prototype paragraph 6(3) of Schedule 1 had apparently spontaneously mutated.
I stepped back into my time machine and travelled forwards; this time to 1986, and to the Law Commission’s report on family law and illegitimacy. What did I find (apart from shoulder pads and big hair)? There had been no enactment of Clause 8 of the draft 1982 bill. Rather, an indication from the Government that the 1982 report would be enacted as soon as there was Parliamentary time available. Rather like my own commitment at the time to homework.
In Part II of the 1986 report, I found that it was still deemed necessary for there to be “a few areas in which there are legal differences between people whose parents have married and those whose parents have not”, although at least it envisaged a time when “the differences, as far as the children are concerned, are so small as to make this unnecessary”. There is a fascinating discussion about the concept of “parental authority” (oh, the halcyon days of parents actually having authority!), and disapproval of the “mischief” brought about by one parent having the burden of caring for the child, while the other is entitled to “dictate upon such matters as education, religion, major medical treatment or the like”. But no explanation or even discussion as to the reason for what is now paragraph 6(3) of Schedule 1. Instead, clause 8 from the 1982 draft bill is reproduced without comment.
Back into the time machine: 1988. Perestroika, George Bush Snr President, Kenneth Williams dies, and Elizabeth Butler-Sloss is the first woman to be appointed a Lord Justice of Appeal (there was no such thing as a Lady Justice of Appeal; it was necessary therefore to address her at first as “my Lord”). And the Law Commission were once more reporting.
At the time, the Law Commissioners recognised that the coincidence of recent events represented “an historic opportunity to reform the English law into a single rationalised system as it applies to the care and upbringing of children”. The Cleveland child abuse scandal and consequent inquiry (headed by one Elizabeth Butler-Sloss) was one of those events. That, of course, was relevant to the public law aspects of the Report, but the Commissioners were concerned also with a complete codification of the law relating to the upbringing and welfare of children, including both private and public law. It considered bringing all child-related law under one, single, codified umbrella – which would have meant doing away with the child-related provisions of the Matrimonial Causes Act 1973 – but in the end it decided that, if orders were being made in relation to a marriage, then the Court may as well retain the jurisdiction to make orders in relation to the children of that marriage or family under the auspices of one statute. However, outside the 1973 Act, there would be one statute, dealing with private and public law, as well as the law relating to the financial provision for children. A corresponding aim was to finally consign to history any remaining discrimination against the children of unmarried parents.
Under the heading “Financial provision and property adjustment for children” the Report has this to say about the codification of the relevant law: “As we have already indicated, we have concluded, not without some reluctance, that it is only practicable to assimilate and incorporate into our scheme the powers which are currently contained in the Guardianship of Minors Acts 1971 and 1973 and the Children Act 1975 … It would in any event be a task of some complexity to pull them apart, whereas the assimilation and merger of the current provisions in the 1971, 1973 and 1975 Acts can be achieved with little change in the substance of the existing law and with the benefit of considerable simplification. By this time, the Government had finally done its homework and the offending clause had been enacted. Accordingly, by the time the Law Commission reported in 1988, the clause was already law and as such it would be “assimilated and merged” into the draft Children Bill (later, the Children Act 1989) without comment.
My journey in the time machine was over. The offending clause appeared spontaneously – it would seem – in 1982 and has been law since 1987, re-enacted in 1989 as part of a superficial codification of existing financial provision legislation. Since I started to think about it, I have uncovered no reported cases and no academic discussion (except for my own – with curiously reluctant colleagues). Does it just not matter then? Is the group of potential claimants so small that the point has never arisen?
To this I answer no! The point arose in my own case, mentioned above. When I spoke to distinguished counsel, a recognised expert in Schedule 1 cases, I was told that advice on this very point had been sought several times from him. The provision, he said, is clear. The reason, however, is not. Yes, in the vast majority of cases it won’t make a difference: either the child can intervene in the old divorce proceedings, or a parent (assume the mother) could apply on the child’s behalf under Schedule 1 (even if an order existed immediately prior to the child’s 16th birthday – it is the child herself who may not apply under Schedule 1 in these circumstances). But in that tiny minority of cases where this is not possible because the mother is dead (Matrimonial Causes Act) or estranged (Schedule 1), there is simply no redress for the child, and – it would seem – absolutely no rationale for this anomaly.
I began this journey assuming there was some imbalance between the children of married parents on the one hand, and the children of unmarried parents on the other. I thought at first the imbalance had arisen through an ill-thought-out attempt to provide equality for “illegitimate” children. But it seems that the anomaly applies equally to both sets of children. I readily accept that the adult children who might be adversely and irredeemably affected by the anomaly is likely to be small, but even in my own case, I would have preferred to proceed under Schedule 1 (for the reasons already discussed). And for those adult children who have no choice, the fact that they are small in number is unlikely to be of comfort.
There is nothing for it. The prince leaves university and competes for an apprenticeship. On the strength of a lot of bluffing and a few lucky breaks (but no great people-skills), he is successful. Eventually, he is awarded a knighthood and uses his influence to depose the king. As part of his first parliamentary programme, he repeals paragraph 6(3) of Schedule 1 to the Children Act 1989.