FINANCIAL PROVISION FOR ADULT CHILDREN IN ENGLAND AND WALES AND IN ITALY: HOW DO THEY COMPARE IN THE LIGHT OF THE DECISION IN DN v UD (SCH 1 CHILDREN ACT: CAPITAL PROVISION) [2020] EWHC 627 (Fam)?

This article considers a recently-handed down case making financial provision for children where one was over the age of 18 at the time of making the application and another child was over 18 at the time of judgment and compares the position with that in Italy, where provision for children can include adult children as a matter of course.

On 6 April 2020 Williams J handed down a judgment dated 29 January 2020 in the case of DN v UD (Sch 1 Children Act: Capital Provision) [2020] EWHC 627 (Fam), which was recently published to BAILII and is found at https://www.bailii.org/ew/cases/EWHC/Fam/2020/627.html

This case concerned a Russian mother and father, and their three children, DD, born on 18 April 1997 (aged 22 at the time of judgment), TD, born on 5 January 2001 (aged just 19 at the time of judgment) and GD, born on 2 March 2005 (aged 14 at the time of judgment).  The parties were unmarried (and, indeed, the father had been married to three other people during the course of the parties’ relationship), but had cohabited intermittently over the course of 2 decades from 1996 to 2016.  The father had three children from his other relationships as well as the three children of this relationship.

The father was extremely wealthy and set up financial vehicles for estate planning purposes.  The mother was a good earner in her own right (the parties met while she was a finance director at the father’s factory). During the course of the relationship, the father set up homes for the mother and the children, first in N City in Russia, and then in London in 2010 when the mother and the children moved to the UK, the father having provided funds for an investor’s visa.  The mother did not work from the point of her arrival in London in June 2010.  She had worked part-time for the two years before that, and prior to that was on maternity leave.  TD, GD and the mother continued to live in the family home in London and DD lived independently.

The relationship deteriorated and culminated on 25 January 2018 with the mother applying without notice for occupation and non-molestation orders under the Family Law Act 1996 and prohibited steps orders under Children Act 1989, which orders were granted.  On 8 February 2018 the mother issued her application for financial provision for the children under Schedule 1 of the Children Act 1989.  In October 2018 the mother’s allegations of emotional and physically abusive behaviour by the father directed towards her and the children were tried at a fact finding hearing by Recorder Genn.  Williams J records that “extensive and serious findings were made against the father at this hearing”.

Although the Schedule 1 proceedings began in February 2018, a part-heard FDR took place only in February 2019, on 30 July 2019 a legal services payment order application and pre-trial review took place and the final hearing was listed to start on 20 January 2020, two years after the commencement of proceedings.  At the point of the application being made, the children were 20, 17 and 12.

During the Schedule 1 proceedings, the father adopted the millionaire’s defence and was not required to provide extensive disclosure.  The matters in issue were the reasonableness of the mother’s claim and the court’s jurisdiction to make various orders.

The father argued, amongst other matters, that this was not a case in which the Court had jurisdiction to make orders for children who were over the age of 18, as DD and TD were at the time of judgment.  Although the Court found that orders could not be made in respect of DD, who was over 18 at the point of the application being made, orders could be made in respect of the other two children, as they were minors at the point of application.  Moreover, funding was ordered to provide for capital provision for the children even where the benefit endures long after the children leave university, so as to prevent the children from coming under heavy exertion of financial control by the father, as he had done with his other children.

What is the relevant law?

Section 15 of the 1989 Act gives effect to Schedule 1 of that Act.  Under these provisions, the Court can make capital and maintenance orders in respect of children in circumstances where the Child Support legislation does not apply:

• Either or both parents of the child can be ordered to make financial provision for the child (para 1, sch 1 (2));
• The powers can be exercised at any time (para. 1, sch 1 (3));
• Orders can be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made (para 1, sch 1 (4));
• Where a court makes an order under this paragraph, it may at any time make a further such order with respect to the child concerned if he has not reached the age of 18 (para 1, sch 1 (5)).
• Children over the age of 18 can seek orders for periodical payments and lump sums only against their parents if they are, will be or would be (if an order is made) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not in gainful employment; or otherwise that there are special circumstances which justify making an order under this paragraph (para 2, sch 1).
• Periodical payments orders payable by parents may begin with the date of the making of an application for the order or any later date, but shall not in the first instance extend beyond the child’s 17^th birthday unless court thinks it right in the circumstances of the case to specify a later date; and shall not in any event extend beyond the child’s 18^th birthday, although the latter clause does not apply where a child is, will or would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not in gainful employment, or there are special circumstances which justify the making of an order without complying with that provision (i.e. orders can be made which extend beyond the age of 18 in the first instance) (para 3, Sch 1).
• Para 4 of Sch 1 sets out the criteria to which the Court is to have regard in making orders for financial relief:
  1. the income, earning capacity, property and other financial resources which each person mentioned in subparagraph (3) has or is likely to have in the foreseeable future;
  2. the financial needs, obligations and responsibilities which each person mentioned in subparagraph (3) has or is likely to have in the foreseeable future;
  3. the financial needs of the child;
  4. the income, earning capacity (if any), property and other financial resources of the child;
  5. any physical or mental disability of the child;
  6. the manner in which the child was being, or was expected to be, educated or trained.
• 105 of the Act provides that a “child” is a person under the age of 18, subject to para 16 of Sch 1. Para 16 of Sch 1 provides that “child” includes, for the purposes of applications for provision where a child has reached 18 under paras 2 and 6, a child who has reached the age of 18.

The decisions made

Williams J determined that the effect of Sch 1, para 3 which permits the court to backdate a periodical payments order to the date of the application and to extend it beyond a  child’s 18^th birthday supports the construction that an order for periodical payments can be made for the first time after the child reaches the age of 18 provided that the application was made prior to the child’s 18^th birthday, as does the use of the word “is” in para 3(2)(a).  Parliament had intended that the court should have this power, and if the court lost that power, the Court could join the child to the proceedings and deem an application by them to be made or ascertain whether it would want to issue its own application, although this would be distasteful in circumstances where the parent could bring the proceedings.

Williams J rejected the argument that the Court could make orders on an application by a parent on behalf of a child who is an adult at the time of the application, even where the child is in education / training or in special circumstances and contrasted the position where the adult child is born of married parents and the application is brought under the Matrimonial Causes Act 1973 sections 23, 29 and Downing v Downing (Downing intervening) [1976] 3 All ER 474.

Accordingly, orders were made for the benefit of TD and GD, including exceptional orders for capital provision that did not have to be returned to the father upon the children’s completion of education and majority in light of the father’s likely coercive approach towards the children in future, but none were made for the benefit of DD, as he was an adult at the time of the making of the application.

Financial Provision for Adult Children in Italy

In Italy parents are obliged to make financial provision for their children in accordance with Articles 30 of the Italian Constitution and 147 and 148 of the Codice Civile.  The obligation is to maintain, educate and instruct their children, taking into account the children’s ability, natural inclination and aspirations.  The parents must fulfil this obligation in proportion to the individual parent’s respective means and according to their individual working ability, both in and out of the home.  Article 337 ter of the Codice Civile and Article 6, para 3 of the Divorce Law provide that the Court has jurisdiction to establish the extent and in what manner a non-resident parent must contribute to the support, care, education and upbringing of the children.

In making orders for child maintenance, the Court applies the same criteria as it does when determining spousal maintenance.  On 13 March 2020, in case number 7134, the Court of Cassation, Sec V1 Civil determined that in quantifying the level of maintenance due from a parent to a child, the judge must weigh up all of the criteria established by art.337-ter of the Codice Civile,  with no particular criterion being given more weight than the others.  The criteria within that article provides that, unless otherwise agreed in writing and signed by the parties, the Court shall determine that each of the parents shall provide for the maintenance of their children in proportion to their income, and in so doing it will weigh up the following factors:

• The current needs of the child;
• The standard of living enjoyed by the child in the home and care of either parent;
• The length of stay with each parent;
• The economic resources of both parents; and
• The economic value of the home and care tasks assumed by each parent.

The maintenance is automatically adjusted to the ISTAT indices in the absence of other parameters agreed between the parties or ordered by the judge.

If the financial disclosure provided by the parents or either of them to the Court is inadequate, the court will order an assessment by the financial / tax police of the incomes and assets which are the subject of the dispute, even where those assets and income are said to belong to someone else.

Unlike in England and Wales, in Italy the obligation to make financial provision for children ceases only when a parent who seeks to terminate financial provision can prove that the child has reached economic independence, or that the child’s failure to carry out an economic activity depends on their attitude of idleness or an unjustified refusal to work.

This continuing obligation is borne of different personal and political mores, the expectation that the family continues to make provision for each member of it, a restricted job market where recommendations are needed to obtain any paid employment, and a welfare state that assists people only where they have already been in employment

In considering whether a parent can terminate or reduce their financial responsibility for an adult child, there will need to be an assessment by the court of the following factors:

• The age of the adult child;
• Their achievement of a particular level of professional and / or technical competence;
• Their attempts to find employment;
• The overall personal conduct of the adult child after their reaching the age of majority.

(Tribunale Cosenza, sez 1, 12/07/2019, n.1559, Cassation Civile sez 1, 17/07/2019, n.19135).

In a Paduan case in 2018, the father of the children was obliged to continue to maintain the 28 year old daughter who, although she had graduated 4 years earlier, had not managed to achieve economic independence.  His obligation to maintain his adult son (33 years old) ceased with the date of the judgment as the son had managed to obtain ongoing work and  had achieved economic independence.  The point made in that case was that, in order for a parent to claim for maintenance provision for an adult child they had to be living with them, and the parent had to be continuing to meet their duty to make provision for education and professional training relating to the child’s abilities.  These factors would be taken into account as well as general economic and social conditions when considering whether the child could be financially autonomous.  If a parent was not making that provision for their child, then maintenance paid to that parent for the benefit of the child might cease, as otherwise the obligation of parents to support adult children would last indefinitely (Tribunale Padova, sez 1, 13/06/2018, n.1296).

In a Catanian case (Tribunale Catania sez 1, 15/01/2019, n.179) the court rejected an application for a maintenance allowance in favour of a 25 year old child where the child had not pursued necessary activity in order to achieve adequate economic independence.  He had not finished his university studies, had not sought alternatives by way of employment, and his inability to take steps to achieve economic independence was not as a result of external factors.

Both adult and minor children who are not self-sufficient are given priority in remaining in their childhood home, so that the weighing up of the financial interests of the parents is excluded.  Generally the family home remains with the parent who has the children living with them (Cassazione Civile, sez 1, 12/10/2018, n.25604).

The concept of “cohabitation” of a parent and a child is relevant as to the questions of assignment of the family home to one spouse or the other and for the payment of maintenance.  A parent must be living with a child, minor or adult.  Where children live outside the home, but may just come and visit, then both spouses are excluded from claiming the right to assignment of the family home and a contribution for child maintenance (Tribunale Nuoro, 23/08.2018).

The Court of Cassation confirmed on 19/02/2019 via sentence no.3922 that the standard of living is and remains a relevant factor when it comes to the maintenance of children, unlike for separating and divorcing couples following the Grilli case in 2017 (divorce) and in 2019 (separation) (for separating and divorcing couples the standard is more familiar to English family lawyers – “when and how can the financially weaker party adjust to financial independence without undue hardship?”

Conclusion

While maintenance for adult children is generally considered to be quite rare in English law, it is expected in Italian law.

Historically, English and Welsh adults leave home upon adulthood, make their own way in life, and enjoy the benefit of a welfare state to assist should they find themselves in financial difficulties.  DN v UD reminds us that provision can be sought on behalf of adult children, but the circumstances are very rare.

In Italy, one is expected to show that one’s adult children should no longer be provided for.  People leave home much later.  People obtain job security far later in life.  To purchase one’s own home without parental assistance is, again, rare.  There is no welfare state to speak of unless one has already been in employment and has made contributions to the national insurance scheme.  Cases frequently trouble the courts regarding when and how maintenance and provision of a home should cease for an adult child in their late 20s or 30s, even.  And children are expected to be maintained at the minimum standard of living that endured during their childhood, even where the parents now live in separate homes.  Parents often try to show that they cannot afford to continue to pay.  As a result, the courts have far-reaching powers to oblige independent parties and authorities to provide financial disclosure evidencing the true level of income and assets declared or likely to be held by the parent.  Although the expectation is that the obligation will not continue indefinitely, sometimes it does.  Of course, there remains the obligation to make provision for children upon one’s death too.

This article on ‘Financial provision for adult children in England and Wales and in Italy’ was written by Helen Brander. To enquire about instructing Helen or another member of our Family Finance Team, please contact our clerking team.