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Hetty Gleave and Anna Roiser discuss child maintenance and things to consider as summer approaches

  • May 09, 2019
  • By Hetty Gleave, Partner and Anna Roiser, Knowledge Development Lawyer

School’s Out – things to consider as summer approaches

Exams are looming and as children approach the final term of their academic year separated parents may need to think about various issues going forward.

  1. My child is finishing school / university this summer. Does that affect child maintenance?

It might well do, depending on the arrangements that you have in place.

Many child maintenance arrangements are determined solely by the Child Maintenance Services (the CMS). Under CMS rules, child maintenance payments usually stop when the child reaches 16 (or 20 if they’re in full-time education up to A-level or equivalent) and regardless of whether they’re going on to university.

If you and your former partner have agreed child maintenance arrangements outside the CMS regime, and had the agreement confirmed in a court order, then it may well be that the order has anticipated the costs of further education after secondary education has finished and made provision accordingly.

If not and your child maintenance payments are ending or changing this summer, then that’s likely to affect your household budget, so you’ll need to plan for how you’ll cover your outgoings after child maintenance ends, especially if in reality you’re going to continue supporting the child financially.

  1. What if my child finishes their secondary education at 18 and child maintenance payments stop, but they are going on to further education. Can I apply to the Court for maintenance for a child who is over 18 and going on to further study on a full time basis?

Once a child turns 18 then they become an adult for the purposes of applying for maintenance payments and would have to apply for financial provision for themselves from their parents. This may not be an attractive proposition for some young adults who may otherwise have a good relationship with both parents, and they can choose to delegate the management of the process to the other parent, but will still remain the person who has to make the decisions in the proceedings, including the decision to continue with the application.

Children whose parents were never married to each other and in relation to whom an order for child periodical payments is already in force, should take special notice that they cannot apply to extend the term of any order for maintenance after the age of 16. If that situation is relevant then it would be wise to seek an extension of the term of the order before the child reaches the age of 16, as after that age they are unable to do so.

  1. Can an application for child maintenance for tertiary education cover a gap year?

The court has the power to make an order for an adult child if he/she is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will be in gainful employment”.

If the gap year is spent doing work that arguably is training for their future career, such as an internship at a foreign law firm as a prelude to a career in law, then it might be possible to say that this is also training for a trade or profession. Backpacking through South America, or bar work in Thailand, would struggle to fit that definition.

Applications of this sort may be stressful for the child, and the costs may outweigh the benefit – where possible, parents should work together to consider what provision they can, and would like to, make for their children after they leave school.

  1. How else might a child changing school year affect my financial arrangements with my former partner?

If you and your former partner were married, then one of you may be paying maintenance to other (“spousal maintenance”). Depending on what was agreed, this may automatically change, or come to an end, once a child reaches a new educational stage, for example, starting primary or secondary school.

If spousal maintenance is due to come to an end, and you want to apply to extend it, then that application must be made before the term ends – otherwise you will not be able to apply to extend it.

Spousal maintenance can be varied at any time, so if adjustments previously agreed in advance no longer make sense, you may need to discuss varying the original order. Equally, if there was no built-in variation to the spousal maintenance agreement, but you think maintenance should change at this point, for example because the child’s main carer will be able to work more hours as the child will be in school for longer, then you can seek a variation.

Some financial settlements provide that once a child has finished secondary school, or completed university, the family home is to be sold and the proceeds split between parents, or returned to the parent who is not living there.

If this applies to you, check your agreement to see exactly what was agreed, and ensure you’re prepared for the next steps. You’ll need to liaise with your former partner as to the practical arrangements to be made, such as putting the property on the market, or agreeing a final date for moving out, and consider where you want to live. If you have the resources or mortgage capacity available, you may want to explore whether you would be able to buy-out your former partner’s interest in the home.

  1. My children will move to a new school after the summer. What might I need to think about?

Firstly, you and the child’s other parent need to have agreed which school the child will be attending next year – this isn’t a decision solely for the parent with whom the child is living. To avoid uncertainty for the child, or risk losing a place that has been offered, aim to reach agreement on this as soon as you can.

If parents cannot agree on a school, either directly or through mediation, an application would need to be made for the court will decide which option is in the child’s best interests. This should obviously be a last resort given the time and cost involved.

If a child is going to go to a private school, then their parents will need to agree how school fees will be met. If one parent is refusing to pay or contribute to school fees, and the other parent wishes them to pay, an application for a School Fees order can be made. Of course, the question of which school a child is to go to, and how any fees are to be paid, may well be linked in practice.

If a child is moving to a new school, then you may also need to think about how this affects contact arrangements, particularly mid-week contact. If the new school is in a different location, starts / finishes at a different time, or involves different after-school activities, the arrangements that work this year may not be practical next year. Think about this in advance to avoid any misunderstandings, and to give plenty of time to work out a new arrangement that works for both parents and meets the children’s needs.

  1. I’d like to take the children on holiday over the summer – do I need their other parent’s agreement? How much do I need to tell them about the trip?

If you’re planning a holiday in the UK, then legally you don’t need the other parent’s agreement to the destination. However it’s generally a good idea to agree holiday dates well in advance, to avoid clashes and enable you both to plan your summer arrangements, and to give the other parent some information about the trip, including your travel dates and where you’ll be staying with contact numbers.

If you want to take the children abroad, then you may need the other parent’s agreement depending on the length of the holiday and whether there are any court orders in force in relation to the child.

If the court has made a Child Arrangements Order providing for the children to live with you, then (unless there’s another court order saying otherwise) you don’t need agreement of the other parent as long as you’re taking the children abroad for less than a month.

However it is always advisable to let the other parent know your plans in advance and to provide travel and contact details as one parent’s idea of a suitable holiday destination may not be shared by the other and an objection could be raised about the destination rather than length of the stay. For example if you plan to take the children to a country which has safety concerns, or is not recommended for visitors by the Foreign Office, then the other parent could object on the basis that it is not in the child’s best interests to visit that country as their safety may be compromised in some way. https://www.gov.uk/foreign-travel-advice

Of course, the holiday will need to take place during time the children are due to spend with you under the Order, as the children should not miss contact with their other parent to go on holiday unless that has been agreed.

Where a Child Arrangements Order provides for a child to live with more than one person, for example at different times, then each may take the child the child abroad without the agreement of others for up to a month. Again, it is advisable to share the holiday plans well in advance to avoid potential conflict in terms of destination, clashing diaries etc.

If there is a Child Arrangements Order in place, and you are not named as a person the child will live with, then to take the child abroad you will need the agreement of everyone who has parental responsibility (usually just their other parent).

For most families, there is no court order in place, and arrangements are by agreement. If that’s the case, then either parent will need the agreement of the other to take their child abroad for any amount of time.

If you need agreement to take a child abroad, then aim to agree this with the other parent as early as you can, and certainly before you book any flights or accommodation, to avoid last minute problems.

In a case where agreement about a child’s holiday arrangements cannot be reached then an application can be made to court to determine whether the child should take the proposed trip. These applications can be costly and should, of course, be a last resort.

  1. I’m taking my children abroad this summer without their other parent – do I need any additional documents?

In recent years, border and airline authorities have become increasingly alert to the risks of child abduction, meaning that when a child is travelling with just one of their parents, extra documentation may be requested.

It’s a good idea to have with you:

  • Depending on the country, a sworn statement from the child’s other parent confirming they agree to the holiday.
  • Any court orders about who the child lives with, or giving permission to take the child abroad.
  • The child’s birth or adoption certificate, to prove your relationship to them, particularly if you have different surnames.
  • If your name has changed since it was recorded on the child’s birth certificate, then it would also be sensible to have a marriage certificate, Decree Absolute, or other document evidencing your change of name.

Different countries have different requirements in these circumstances and it is essential to check the requirements of each country before travelling.

For example, the US requires that where a child is travelling with one parent, they must have a letter of consent from the other parent, which they recommend is witnessed by a notary, or a Court order showing the child lives solely with them. Canada has similar requirements.

For South Africa (which slightly relaxed it requirements in December 2018), where a child is travelling with one parent, they may need the child’s birth certificate, a letter of consent from the other parent, a copy of the other parent’s identity document, contact details for the other parent, and copies of court orders relating to the child.

Botswana and Namibia require that where a child is travelling with one parent, that parent have with them the child’s birth certificate, and confirmation of the other parent’s consent in an affidavit – a statement sworn in front of a solicitor.

It’s therefore essential to check what’s required by your destination to avoid the disastrous situation of being unable to board the plane because you can’t produce all the documents your destination requires.

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