UD v DN

On a parent’s application under Schedule 1 to the Children Act 1989, the court retains jurisdiction after the child turns 18 if the application was issued while the child was under 18.

Capital provision may benefit a child after majority or completion of full-time education only in special or exceptional circumstances relating to the child and creating a continuing financial need. Anticipated financial pressure or manipulation by a parent does not satisfy that requirement. General observations about the effects of parental abuse cannot establish the necessary need without evidence of its specific consequences for the child.

The father appealed from a Family Division order under Schedule 1 to the Children Act 1989: DN v UD (Sch 1 Children Act: Capital Provision) [2020] EWHC 627 (Fam). The order settled the London family home for two children and provided that, after the trust period, 6.5% of its gross sale price or market value would belong to them absolutely.

One child had already turned 18 between the application and the order. The appeal therefore concerned whether jurisdiction survived that birthday, whether capital provision could take effect for an adult child, and whether anticipated financial manipulation by the father constituted special or exceptional circumstances justifying long-term capital provision.

1. Appeal allowed. The deferred absolute interests in the family home were set aside. Moylan LJ gave the judgment, with which Newey and King LJJ agreed.

2. Paragraph 1 of Schedule 1 to the Children Act 1989 confers jurisdiction when a qualifying application is made. If the application is issued before the relevant child turns 18, the court retains power to determine it and make an order afterwards. A clear express provision would be required to extinguish an accrued but undetermined right merely through the passage of time. The language of paragraph 3(2), including its references to a child who “is” receiving education and to circumstances which “are” special, supported that construction. The court did not decide whether a parent could initiate a paragraph 1 application after the child had already turned 18.

3. A settlement of property may take effect immediately even though the child’s absolute interest is contingent and will be realised only after majority. Schedule 1 also permits capital provision benefiting an adult child where education, training or special circumstances justify it. It would be anomalous if periodical payments could continue in those circumstances but capital provision could not be made. That construction also accords with the statutory purpose of removing differences between provision for marital and non-marital children.

4. Where the adult child is no longer in education or training, capital provision is confined to special or exceptional circumstances relating to the child and creating a financial need. Ordinarily, dependency ends at majority or on completion of tertiary education. Parental wealth, an expectation that a wealthy parent would assist an adult child, or a wish to protect the child from future financial pressure does not suffice.

5. The judge’s proposed “financial ultimatum” fund rested on anticipated conduct by the father rather than a continuing financial need of either child. General experience and research concerning the long-term effects of abuse could not establish a case-specific vulnerability warranting a financial award. There was no medical or other evidence of future mental-health difficulties, susceptibility to manipulation, or any other continuing financial need. The necessary special or exceptional circumstances were therefore absent.

• Court of Appeal (Civil Division): In UD v DN [2021] EWCA Civ 1947, the father’s appeal was allowed and the deferred absolute interests awarded to the children were set aside.
• High Court, Family Division: In DN v UD (Sch 1 Children Act: Capital Provision) [2020] EWHC 627 (Fam), Williams J ordered the family home to be settled for the two younger children and awarded them 6.5% of its gross sale price or market value absolutely at the end of the trust period.