H (A Child) (Appeal: Child Maintenance), Re

This is an appeal against the extension of the duration of a child maintenance order beyond the age of eighteen years. It was made by HHJ Oliver on 26 April 2024. The amount payable under the order is not at issue in this appeal. The grounds upon which permission to appeal was allowed were limited. They are:

The appellant is a qualified and practising solicitor. The respondent is a qualified but non-practicing lawyer. They represented themselves before HHJ Oliver and before me.

The child in question is a child of the marriage between the parties. The appellant is their father, the respondent their mother. The child was born in February 2006. The initial hearing before HHJ Oliver was on 24 January 2024. The hearing had been listed in response to the respondent’s application, a D50K, for Enforcement Directions. That D50K application was dated 6 November 2023. The application to extend the duration of the child maintenance order was made informally in the respondent’s skeleton argument for the hearing on 24 January. That hearing was adjourned principally to enable the appellant to issue an application to vary downwards the amount payable under child and spousal maintenance orders which were already in existence and to provide medical evidence in support of his application. However, as matters turned out the appellant did not issue any such application and provided no such evidence for the adjourned hearing on 26 April 2024. The appellant’s position at the April hearing was that he had not filed any such application because by then he had the means to comply with the orders then in force. However, that was not the end of the matter. HHJ Oliver on 26 April 2024 proceeded to determine the respondent’s application for an extension of the duration of the child maintenance order then in force. HHJ Oliver decided to extend the child maintenance order until 31 August 2028. The appellant objected to that extension. It is the extension of that order which is the subject of this appeal.

The appellant appealed by an Appellant's Notice which was undated. The application included an application for permission to appeal the order of HHJ Oliver made on 26 April 2024. The application was made out of time, but the appellant asserted he had not received the order of HHJ Oliver until 13 May 2024.

On 31 May 2024 the Appeal Notice came before me for consideration on the papers. On that occasion, I granted the appellant’s application for permission to appeal out of time. In addition, I gave directions for the provision of transcripts of the hearings and the filing of skeleton arguments after their receipt. I granted a stay of the order of HHJ Oliver limited to paragraphs 1 and 5 of that order but made it clear that paragraphs 2 to 4 were not stayed.

On 10 June 2024, I amended the order of 31 May 2024. The amendments simply corrected typographical errors in the earlier order.

On 27 November 2024 I was sent the transcripts of the hearings before HHJ Oliver.

On 20 January 2025 (amended 21 January 2025) I considered the appellant’s application for permission to appeal the order of HHJ Oliver dated 26 April 2024. I dismissed several of the appellant’s grounds for appeal as being totally without merit. I gave my reasons for doing so in writing at the time and I do not need to repeat my reasoning herein. However, I granted the appellant’s application for permission to appeal the order of HHJ Oliver on two grounds, namely:

By the time of the hearing before me on 21 May 2025, the respondent had sought and been granted permission to attend remotely. The expectation was that the appellant would appear in person. However, when the case was called on at 2pm on 21 May, the appellant did not appear. Enquiries were made of him from which it became apparent that he too expected to be able to attend remotely. The link was therefore sent to him at the email address he provided. However, he claimed not to have received it. It was thus sent on three further occasions to the email address he gave the court associate. Each time the appellant, who was contactable by telephone, said he had not received it. Accordingly, I adjourned the hearing to 13 June 2025 to enable him to participate fully in his appeal. The adjourned appeal hearing had to be accommodated in a busy afternoon list and the listing did not give any time for judgment.

On 13 June 2025 the appellant appeared before me in person whilst the respondent appeared remotely. I had an appeal bundle which included the skeleton arguments. The appellant chose to make brief oral submissions focused on his main points. The respondent chose to read through her written submissions. I gave the appellant a chance to respond but he did not have anything of substance that he wished to add.

The appellant supported his application for permission to appeal with a document entitled witness statement which is dated 17 May 2024. It was in reality a skeleton argument. Within that document he set out his grounds of appeal which included the following:

Within his witness statement the appellant expanded upon that ground stating that the further application to vary was made by the respondent in a skeleton argument sent to the court for the hearing on 26 April 2024 but sent to an old unmonitored email address of the appellant which the respondent, he says, knew he would not access and not the email address to which the court had previously permitted service.

Within his witness statement, the appellant also complained that HHJ Oliver had extended the order for child beyond the child of the family’s eighteenth birthday. In relation to that he stated that The judge gave no reason in the hearing except that the Respondent needs it and the judge himself can make such an order. The appellant argues that the case law requires that the circumstances must be exceptional before such order can be made. He says that HHJ Oliver failed to say why he considered this case to be exceptional such as to justify making the order.

After receipt of the relevant transcripts, the appellant’s skeleton argument in support of his application for permission to appeal is dated 15 November 2024. He relied upon that document for the appeal. Within that document he expanded upon his grounds of appeal and provided additional information, namely, that he says that he had sought a form of order that would end his spousal and child maintenance obligations at the end of the academic year following the eighteenth birthday of their daughter. That application was, he says, filed and served on 9 February 2024. As he puts the intention of his application was to reduce the temporal scope, not the quantum of the child and spousal maintenance orders then in force. The appellant argues that HHJ Oliver failed to consider his application and repeatedly stated during the April 2024 hearing that he had no application from the appellant. He also argues that when extending the order beyond the child’s eighteenth birthday HHJ Oliver was drawn into speculation that his income was greater than disclosed. He submits that the total level of maintenance (child and spousal) exceeds the needs of the respondent and child. I have set out the appellant’s arguments because I have read and understood them. I note that they are outside the grounds upon which permission has been granted and that they thus do not have any direct relevance to the issues before this court which is a court of appeal.

In his skeleton argument the appellant took me to case law. I have read it all but directed myself specifically to that which is relevant to the grounds of appeal upon which permission has been granted.

The respondent filed and served her skeleton argument in response to the application for permission to appeal on 28 November 2024. Like the appellant, she too relied upon that skeleton argument at the appeal. Within it she asserts that the skeleton argument for the hearing at first instance was served on the appellant at the correct email address on 23 January 2024 in readiness for the hearing on 24 January 2024. It was within this document that she made her application for the child maintenance order to be extended beyond the child’s eighteenth birthday. The application was made before the child turned eighteen on 2 February 2024 although she accepts it was disposed of in the April 2024 hearing, after the child’s eighteenth birthday. She asserts that the appellant had notice of it and seeks to demonstrate that knowledge by reference to the oral argument she says she presented before HHJ Oliver in January 2024 and her letters to the appellant dated 9 February 2024 which specifically referred to an application to extend beyond their child’s eighteenth birthday.

To enable me to determine this appeal, I have the transcripts of the hearings before HHJ Oliver on 24 January 2024 and that on the 26 April 2024. I also have the bundle which was before HHJ Oliver on 26 April 2024. Within the bundle prepared for the hearing on 26 April, there are the respondent’s skeleton argument dated 23 January 2024, and another filed in advance of the hearing on 26 April 2024.

At paragraphs 13- 15 of her skeleton argument dated 23 January 2024 the respondent clearly set out her application for child maintenance to continue beyond the child’s eighteenth birthday. The application was stated to be made under S29 Matrimonial Causes Act 1973. The skeleton contains her reasons for applying.

The transcript dated 24 January 2024 is of the whole hearing. It was a remote hearing. Both the appellant and respondent were present throughout and represented themselves. It begins by reference to the respondent’s application for enforcement of spousal and child maintenance orders during which there is reference to the respondent’s skeleton argument in support. There is then an exchange between the judge and the appellant in which the appellant explains he has been ill and unable to work and thus unable to pay the existing orders for child and spousal maintenance. In response the judge explains that if that is his case, he must make an application to vary and submit supporting evidence. The appellant responded to that and said he had sent relevant evidence to the court prior to the hearing by email. The transcript discloses that the email was retrieved and seen by the judge during the hearing. It is clear from the transcript that having read the email and documents sent with it, neither the court nor the respondent considered it sufficient. Thus, there is later discussion about the evidence the judge will need if he is to consider his application to vary. HHJ Oliver then at page 96 of the bundle before me tells the appellant to make a formal application to vary, if that is what he wishes to do, and to get a medical report to support his assertions. The learned judge then proceeded to timetable the making of any such application and the provision of documents in support. He then adjourned the respondent’s application for enforcement.

Although the focus of the hearing on 24 January 2024 appears to me to have become the need for the appellant to make a formal application to vary the quantum of the previous orders for spousal and child maintenance, if that is what he wished to do, it appears to me to be pertinent to this appeal that there is a passage, beginning at page 93 of the bundle prepared for this appeal, in which the respondent raises the issue of child maintenance and tells the court that the child concerned will be in tertiary education until the end of July 2028. At page 94 she sets out her reasons for saying that child maintenance should not end on the child’s eighteenth birthday. She makes submissions about what her needs are until the end of August 2028. The respondent was present when she made those submissions and when she specifically referred to her skeleton argument for that hearing in the context of extending the duration of the order for child maintenance. At the time the appellant did not respond to that submission, specifically he did not assert he had not seen the skeleton argument.

The adjourned hearing took place on 26 April 2024 and was again a remote hearing attended by both parties who were self-representing. In preparation for this hearing the respondent had prepared a statement dated 23 February 2024 which was in the court bundle at first instance. Within that statement she set out her current means and needs.

I have the transcript of the whole of that hearing. The hearing begins with HHJ Oliver querying why the appellant has not made the application anticipated and directed at the last hearing. At page 102 of the bundle before me the appellant explained that he was now well and had returned to work. What he wanted to do was pay the arrears off and then pay the order on a continuing basis. At that point HHJ Oliver stated this: well what you need to pay is £980 a month or thereabouts and that needs to start probably next week, starting at the end of April ... plus you need to pay arrears and you continue your child support for your daughter until the end of August 2028. In response the appellant stated I don't do that no- I haven't- there no application for that. It comes to an end this year, 2024. At page 103 of the bundle before me, there is then an exchange between HHJ Oliver and the appellant which is relevant to this appeal:

It is clear from the transcript that the appellant objected on the grounds that there had been no application to extend the order by respondent to which the learned judge responded, “there was”. That is a reference to the issue which was raised on the face of the skeleton argument the respondent had submitted for the hearing on 24 January 2024. The reasons given by the learned judge for extending the child maintenance were that the child was in tertiary education and that it was important for children and young adults to be supported in tertiary education.

I begin by considering Section 29 Matrimonial Causes Act 1973. It states:

Section 29 provides that no financial provision order or property adjustment order shall be made for children who have reached the age of eighteen unless they are in continuing education or there are special circumstances such as physical or mental disability. It also provides that in the first instance a child maintenance order should be specified to extend to the age of eighteen.

Section 29(2) and (3) of the Matrimonial Causes Act are to the same effect as paragraph 3(1) and (2) of Schedule 1 of the Children Act 1989 subject to one express limitation on the power to make a lump sum which does not come into play in this appeal. The similarity is relevant because in the context of considering an appeal against an order made under Schedule 1, Moylan LJ in UD V DN (Schedule 1 Children Act 1989: Capital Provision) [2021 EWCA Ci 1947 answered the question – does the court have the power to make an order under paragraph 1 of Schedule 1 of Children Act 1989 when the subject child has attained the age of 18 between the date of the application and the date of the proposed order?

In UD V DN (above) the Court of Appeal, Moylan LJ giving the lead judgment, held that a court had the power to make an order under paragraph 1 of Schedule 1 of the Children Act 1989 when the child concerned had attained the age of eighteen between the date of the application and the date of the proposed order – Jones v Jones [2001] Fam 96. If that were not the case a properly constituted application could be defeated by the passage of time. The court’s power was established as provided by the opening words of paragraph 1(1) Schedule 1 of the Children Act. The court’s power was based on the relevant child being under eighteen at the time the application was made not heard. The language of paragraph 1 was directed to that date and not the date of the order. Further it was held that the authorities clearly demonstrated that the court had power to make an order for financial provision which would benefit that child when they were over the age of eighteen if that child was in education or training or there were special circumstances. Such power as there was to order financial provision in favour of a child over eighteen who was not in education or training was limited to special or exceptional circumstances relating to the child, such as a physical or mental disability,

In Tattersall v Tattersall [2018] EWCA Civ 1978 Moylan LJ again gave the judgment of the court. The Court of Appeal held that there is no principle which requires a judge to adjourn an enforcement application pending determination of a variation application. The objections to such a principle are obvious. It would enable the process to be too easily manipulated, if not subverted. It is a question for the judge to determine having regard to the circumstances of an individual case.

At paragraph 31 of his judgment Moylan LJ considered that no formal process was stipulated for an application under s.32 Matrimonial Causes Act 1973. In that context he stated that such applications were often informally made as they arise in the course of the court’s determination of other more substantive applications. He said what is procedurally required will depend on the circumstances of the particular case.

The original child maintenance order was made by District Judge Hudd on 18 February 2019. It was in the sum of £350 per month. The quantum payable under that order is not the subject of this appeal; the duration is. On 26 April 2024, HHJ Oliver extended the term of the order beyond the child’s eighteenth birthday until 31 August 2028.

The formal application before HHJ Oliver in January 2024 and April 2024 was the respondents D50K for the enforcement of existing spousal and child maintenance orders. The application to extend the duration of the child maintenance order was made by the respondent in her skeleton argument dated 23 January 2024. At paragraphs 13-15 of that argument (see appeal bundle page 114) the respondent set out her application to extend the current order until August 2028. In the papers before me the skeleton argument dated 23 January 2024 appears in the bundle for the hearing the next day, namely 24 January 2024. The appellant argues that he did not receive that skeleton argument. However, it seems to me that whether he specifically had received that skeleton argument for the January 2024 hearing, during the hearing itself the application to extend the duration of the order was referred to with the respondent referring to that application, her reasons for making it and the relevant financial need. The appellant was present when those submissions were made. From that moment, he knew of the application, its nature and the respondent’s relevant arguments. Thereafter it was raised again by the respondent with the appellant in her email to him of 10 February 2024 at paragraphs 6-7 inclusive (appeal bundle 202). Thus, it is plain that as of 24 January 2024 the appellant knew that an application to extend the duration of the Child Maintenance Order had been made and the basis upon which it has been made. The first ground of appeal before me, namely that the appellant was not given notice of any application to extend the duration of the existing child maintenance order, is simply not made out.

The application to extend the duration of the child maintenance order was made informally in the manner I have already described within enforcement proceedings. In my judgment that informal application was sufficient to engage the court’s powers under s.29 Matrimonial Causes Act 1973 to extend the duration of the child maintenance order beyond the child’s eighteenth birthday whilst she remained in tertiary education. That was the conclusion of the Court of Appeal in Mutch v Mutch [2016] EWCA Civ 370 when an application to vary under S31 Matrimonial Causes Act 1973 raised in a solicitor’s statement in support was deemed to be sufficient to engage the variation powers of the court. Similarly, an informal application during existing proceedings under s.32 Matrimonial Causes Act 1973 was considered sufficient in relation to Tattersall (above). I see no reason why the position should be any different under s.29 Matrimonial Causes Act 1973, particularly where, as here, the appellant had had notice of the application, the basis upon which it was made and the relevant needs of the child.

The informal notice of an application to extend the duration of the child maintenance order was made in a skeleton argument dated 23 January 2024. The appellant had notice of the application at the latest during the hearing on 24 January 2024. Both the date of the informal application and the date the appellant were notified are before the child’s eighteenth birthday. Accordingly, HHJ Oliver had the power to increase the duration of the order under s.29 Matrimonial Causes Act 1973 – UD V DN (above).

Given the evidence before the court and the submissions made on 24 January 2024 and 26 April 2024 by the respondent, the learned judge had the evidential basis to extend the child maintenance order under s.29(3)(a) Matrimonial Causes Act 1973, namely that the child is and will be attending an educational establishment or undergoing training for a trade, profession or vocation. The date of 31 August 2028 is calculated as the date upon which the relevant child’s tertiary education is likely to cease.

The second ground upon which I granted permission to appeal was that the duration of order made by HHJ Oliver arguably extended beyond the child’s tertiary education. The appellant did not pursue that ground before me. The respondent in her written arguments (see for instance paragraphs 17-19 at page 121-122 of the appeal bundle) set out a cogent case that the relevant child’s tertiary education will continue to 31 August 2028. That argument was before HHJ Oliver. Consequently, HHJ Oliver was entitled to make the order he did in the terms he did.

Accordingly, the appeal is dismissed. The order of 26 April 2024 as drafted by HHJ Oliver remains in force and any stay to paragraphs 1 and 5 of that order granted by this court is duly lifted.

The preamble to this judgment sets out the mechanism by which any typographical errors etc are to be notified to the court.

Any applications for costs of the appeal are to be made to me in writing no later than 2pm on 15 September 2025. The applications must be supported by written submissions which must not exceed 4 sides of A4 paper. They must be in Word format using Times New Roman pt 12 line spacing 1.5.

That is my judgment.