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Clare
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 28571
Experience:  25 years experience of all aspects of family law
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I have asked a similar question before before a case went thru

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I have asked a similar question before before a case went thru a hearing to court. My husband had a court order for child maintenance that has finished. The court said it was finished, the terms and conditions were met but his ex wife asked him to pay reopen the case and help pay for university for his oldest daughter who is 19. She filled in a new application to the court and had a hearing. The judge said that a court order that had ceased could not be revived and it was a new application that was needed. My husband's barrister came up with something from a little book that said that his daughter, under certain law, could not apply for a court order in her own merit. The judge accept it and that was out the window. However, he told his ex wife that she could see legal counseling and that if she wanted to proceed with a completely new case, that there was going to be another hearing. Now this is the question, what is the likelihood of after what happened in court, she has any grounds for applying for adult child maintenance for her daughter. The daughter is not paying for university tuition, she has her fees paid in full, has a one thousand pound bursary and has applied for a student loan that it is in the process. The mother is now remarried and has a new child. They make much more money than the means tested bursary for student nurses. Does this stand a chance? Thanks.
Submitted: 1 year ago.
Category: UK Family Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
The Mother cannot apply - however the daughter may well be able to - not within the divorce proceedings but under the Children Act - that was why the Judge told the mother top go away and take legal advice and that a separate application would be needed.
The issue for the daughter is to show that her income from all sources (including the bursary) does not meet her reasonable needs.
I hope that this assist
Claire
Customer: replied 1 year ago.
Hi, Claire, apparently the daughter cannot apply either! Something the barrister found in a little book he had said that the daughter couldn't for some reason or another, I am trying to find the paperwork to word the exact words but I don't know where it is... He sort of told the ex wife it had to be a new application and if she could do it, to seek legal help. He didn't seem to know if she could have done it.
Expert:  Clare replied 1 year ago.
HI
I would be very interested - although he may have meant that the daughter could not do anything within the existing proceedings
Claire
Customer: replied 1 year ago.
Hi Claire, I will copy what the paperwork says:
2- the judge took the view the Order of 2001 had been determined. He went on to say a fresh application would need to be mad. He said that Robyn might herself make an application. I reminded the judge that in my view, there was no jurisdiction to entertain any application under Schedule 1 of the Children act 1989 from Robyn because immediately before her 16th birthday there was a periodical payments order in force. As to W/s application to "revive" the exiting order I fail to see on what legal basis that could be done. I am of course mindful of the letter from the magistrates' court but that does not provide any meaningful answer.
3- It is of course trite law to say that the W would have been entitled to extend the child periodical payment element of the order during the life of the order. That door is however not ajar given this judge's view (now marked on court file) that the order is now lapsed.
4- according to the commentary contained in the Red Book, dealling firstly with Robyn, her only remedy is to apply in the proceedings in which the original order was made to extend that order.
5 That leaves what options are open for the W? It wold apear to be an application under Schedule 1- there is a bar on over 18;s unless either receiving instruction at an educational establishment (she is) or "special circumstances". W would succeed on the first limb.
6- The judge was unclear as to what powers the Court had given his view that the order of 2001 had come to an end. In the circumstances he has listed the application for a "preliminary hearing" after the end of April 2013 with a time estimate of 45 minutes. The purpose is to ascertain where this case is going and on what basis. The parties have not been directed to file any documents although I would suggest we do and I shall be happy to assist in this regard if possible.
7- I have advised Mr Warming of the Court's desire to assist Robyn and preserve its jurisdiction for the protection of any child (and Robyn will be considered a child for these purposes)
8- There is a Schedule 1 route open to W. There will undoubtedly be a desire to help Robyn. Client needs to do a cost/benefit analysis of contesting this application. It does appears to me though that there is clearly scope to argue for a reduction on the (previous) 250 per month. Robyn's course I am told is "free"

Skipped number one cuz it wasn't needed. Thanks.
Expert:  Clare replied 1 year ago.
Hi
Thank you for that
The barrister has very clearly identified the major problem - that the court will be anxious to protect the interests of your partner's daughter which could leave your partner at risk.
However the costs of either of the applications identified are likely to be high as they are unusual applications so the issue will be whether or not his ex is willing to pay that.
Of course your partner could instead offer to discuss matters directly with his daughter and agree a lower figure he will pay to her directly
Claire
Customer: replied 1 year ago.
Hi but I thought that.the daughter could not apply anymore??? And is the application expensive or is it having to hire a solicitor thats expensive? Also, I thought if it goes further, the mom has to submit income info etc. Another thing, according to what the barrister read out of that book, the daughter cannot apply?? And the order cannot be revived, which only leaves the mom to open a new fresh case?
Expert:  Clare replied 1 year ago.
Hi
The advise you have been given (and quoted)
"dealing firstly with Robyn, her only remedy is to apply in the proceedings in which the original order was made to extend that order"
Now I do not think that she can do so - but as your barrister also pointed out there is a very real chance that the court will bend over backwards to try and protect her.
I beleive that it would count as trying to revive the Order BUT in fact with the permission of the court the child could indeed possibly make a fresh application for a NEW order.
So the child may apply within the Divorce Proceedings - if the court gives permission and the mother may apply using Schedule 1 of the Children Act if the Court gives permission
Neither are straightforward and resisting them will not be cheap as you will need legal advice at every stage
Claire
Customer: replied 1 year ago.
Hi how can the mother still apply? And how would he know if they are moving forward?
Expert:  Clare replied 1 year ago.
HI
Your barrister dealt with it here

That leaves what options are open for the W? It would appear to be an application under Schedule 1- there is a bar on over 18;s unless either receiving instruction at an educational establishment (she is) or "special circumstances". W would succeed on the first limb.

Your husband would know that it was happening as his ex's solicitor will write to him
Claire
Customer: replied 1 year ago.
Hi Claire, thanks again... he got an email from his solicitor saying that the court set a new hearing for June... so it would have to be from her solicitor so say what is going on? what if she doens't have a solicitor or she doesn't proceed? Who is W? and would succeed on the first limb??? what do you mean by that? I dont understand...
Expert:  Clare replied 1 year ago.
Hi
I copies that from what you typed in - if you go back to the advise from the Barrister you will see that W + his ex and the "first limb" means the first part of what she would need to prove to make an application.
It is now up to his ex whether she fights on or not - your husband can only play a waiting game
Claire
Customer: replied 1 year ago.
but I am confused. The judge said that the cased was closed. It could not be revived. Which means that if his ex applies, it has to be a new application. How can she put in a new application when the child is 19? And shouldn't the child do it? Also if she does, doesn't it has to be that they both submit income and info? Why is it that the mother can apply? and what is Schedule 1 of the Children act 1989?
Expert:  Clare replied 1 year ago.
Hi
The judge said that Order could not be revived - not that a new claim could not be made
You have a clear advise from a Barrister setting out the options available to his ex and the child and yes there would have to be an exchange of Financial Information
Claire
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 28571
Experience: 25 years experience of all aspects of family law
Clare and other UK Family Law Specialists are ready to help you

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