The Curious Case of CA 1989 Schedule 1 paragraph 2(3)

Paragraph 1 of CA 1989 Schedule 1 is headed ‘Orders for financial relief against parents’. Paragraph 2 is headed ‘Orders for financial relief for persons over eighteen’. As recent cases have demonstrated this structure causes complications.

As was observed in J & K v L (Schedule 1: Older Children) (Rev 1) [2021] EWFC B104 per His Honour Judge Hess:

‘[34] It is not easy to understand why those drafting Schedule 1 did not simply allow a co-existence of parental and child remedies for children older than 18 (or perhaps 16), but they appear to have deliberately chosen a more complicated “baton-passing” scheme.’

CA 1989 Schedule 1 paragraph 2(3) is a curious provision. It states as follows:

‘(3) An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.’

On its face it therefore precludes an application being made for financial provision under that paragraph by ‘any person’ who has reached the age of 18 if immediately before his (or her) 16th birthday a periodical payments order was in force with respect to them.

What is the purpose of this sub-section and what does it actually preclude?

The provision was considered most recently in Nneka Mercy Ogbedo, G and V v Moses Oghenerume Taiga (also reported as M (The Mother) and others v F (The Father)) [2026] EWHC 411 (Fam) by Sir Jonathan Cohen, the most recent instalment in the extremely long-running Moses-Taiga litigation.

On 11 July 2007 Charles J had ordered that upon completion of the children’s secondary education the father was to pay periodical payments to them ‘from the date of the commencement of any tertiary education the sum of £15,000 pa, directly to each of the twins for each year of their tertiary education (first degree only)’. On 24 May 2018, at a time when the children were coming to the end of their schooling, Cohen J (as he then was) made provision for various payments by way of variation of the 2007 order including payment until completion of tertiary education to a first-degree level (‘the 2018 order’).

The mother made a further application for a variation on 15 July 2024 which came before Sir Jonathan Cohen substantively on 11 October 2024.^[1] The father offered to pay a lump sum of £40,000 to be used to meet V’s tuition fees at the university she was attending and:

‘the children’s living and accommodation costs at their respective universities. This shall be the sum payable for the children’s benefit in respect of their tertiary education unless otherwise supplemented by further order of the court or agreement between the parties.’

On 22 May 2025 the twin girls (now aged 24) issued their own application for a lump sum order, a property adjustment order, a settlement or a transfer of property order and a periodical payments order.^[2] They did not expressly apply to vary the 2018 order. By this time both had ceased tertiary education to first-degree level. That application came before the court on 16 July 2025 when Sir Jonathan Cohen made various directions which included it being recorded that due to the application having been made by the girls, no orders were currently pursued by the mother. Subsequently, the court directed that the mother’s application for an extension and variation of the 2018 order if pursued – which it was – should be heard with the girls’ application.

The combined applications were thereafter heard over four days from 2 February 2026 with judgment dated 24 February 2026.

Before the court there was a ‘live debate’ as to the ability of both the mother and the children to apply for the extension of the 2018 order. The father denied that the court had jurisdiction to entertain either application in the light of the terms of previous orders which he said expired at the end of the twin girls’ first degree of tertiary education (July 2023 for G and July 2024 for V) and in the light of their age at the time that the applications were taken out. The mother and the children denied that there was any jurisdictional bar.

It was argued on the father’s behalf that paragraph 2(3) was conclusive of the adult children’s applications for financial provision and fatal to them because immediately before the two girls reached the age of 16 there was a periodical payments order in force with respect to them. So far as the mother was concerned, she could not make an application under paragraph 1 on behalf of the two girls as at the time she made it they were aged over 18 and thus no longer children within the meaning of the statute.

The mother and the children’s cases were that the applications were not for any of the orders set out at paragraph 1(2) but were for an extension or variation of the previous order. It was said that paragraph 1(2) did not mention variation and so the fact that the children were over 18 did not matter. By the same analogy, paragraph 2(3) did not apply to a variation.

In determining this jurisdictional question Sir Jonathan Cohen first set out paragraph 6 of Schedule 1 – headed ‘Variation etc of orders for periodical payments’ – and thereafter the note that appears at 2.364 [7] of the Family Court Practice 2025 at the foot of paragraph 6 which reads as follows:

Scope – Subject to CSA 1991, this paragraph contains the court’s powers to vary orders made either under para 1 (order for financial relief for a child against parents) or para 2 (order for financial relief against parents where the child is applying for the first time when the child is over 18).

At [15] he stated that ‘[w]hilst the editor’s commentary in a note is not authority, it is helpful’.

Sir Jonathan Cohen thereafter stated as follows:

‘[17] Paragraph 2(3) has caused difficulties on previous occasions. It is hard to see the rationale underlying it. In particular, if special circumstances were to arise when a young person is aged 18, for example a devastating illness or accident, why should an application be barred simply because a periodical payments order is in force in relation to that young person when he reached the age of 16? Why should he be in a worse position than someone who was not in receipt of periodical payments?
 
[18] In addition, if F is correct, it would lead to the undesirable situation whereby children of married parents would be able to apply for an extension condition (either for education or special circumstances) but those children of unmarried parents who were in receipt of a maintenance order prior to reaching the age of 16 would not.’

As Sir Jonathan Cohen then observed at [19] the issue has previously been considered in J & K v L (Schedule 1: Older Children) (Rev 1) per His Honour Judge Hess:

‘[34] It is not easy to understand why those drafting Schedule 1 did not simply allow a co-existence of parental and child remedies for children older than 18 (or perhaps 16), but they appear to have deliberately chosen a more complicated “baton-passing” scheme. As well as the general points I have made above, the scheme certainly has some potentially curious and complicated effects when applied on a close analysis to the unusual facts of the present case, and I want to make the following points:- …
 
(vi) First, in my view a variation order does not fall within the meaning of “further order” in paragraph 1(5)(a).^[3] In my view paragraphs 1(3) and 1(4) make it clear that a variation application (as opposed to a fresh application, for example after the expiry of an earlier order) can be pursued at any time. In my view that includes the period from the child attaining the age of 18 to the child ceasing to satisfy one of the extension conditions. To decide otherwise produces an absurd result as is illustrated by the facts of this case. Mr Thorpe’s construction of the paragraph 1(5)(a) prohibition would, it seems to me, apply just as much to an application made by an adult child of over 18 under paragraph 6(4) (because paragraph 6(4) confers on the child the right to make a paragraph 1 order) as it does to the mother’s application. In such a scenario nobody would have a right to make a variation application and the order would continue even if everybody thought it should not. My preferred statutory construction, which is in my view consistent with making sense of the statute, but also taking a purposive approach to secure (as far as it is consistent with the clear wording of the Act) similar rights to children of unmarried parents as those held by children of married parents.
 
(vii) Secondly, it seems to me wrong in principle (and also inconsistent with a purposive approach to the statute) to exclude the mother’s right to seek orders which she had at the time of the application on the basis of effluxion of time. This seems particularly unfair where the effluxion of time is no fault of hers. Had HHJ O’Dwyer dealt with the application, as expected, within a few weeks of the November 2020 hearing he would (without argument) have been able to vary the order of DJ Simmonds, if he so chose, right back to the date of the application (see paragraph 6(3)) and right forward to the end of the period when K ceases to satisfy the extension conditions. Further, he would have been able to make such lump sum orders as he thought fit. In my view it would be wrong to deprive the court of those powers, just because of the effluxion of time. In reaching this conclusion I want to express agreement with the views of Williams J in DN v UD (supra), in particular the following passages:-
 

“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 the child’s 18th birthday would support 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 18th birthday. The use of the word ‘is’ in paragraph 3(2)(a) would also support the construction that an order can be made at a time when the child is 18. It seems to me that if the court has the power to make a periodical payments order in respect of a ‘child’ who has reached the age of 18 where the application was made prior to the 18th birthday that the court would also retain the jurisdiction to make other species of order under para 1. Para 3 is looking at the duration of orders in terms of commencement and end date rather than the jurisdiction of the court to make any order at all. As a matter of logic if educational or special circumstances apply so as to justify the court making periodical payments orders which extend beyond the child’s 18th birthday those special circumstance would as a matter of fact (albeit not of law) be just as relevant to the issue of whether they provided the factual foundation for a capital order. If Parliament had intended that the court should lose the ability to make an order when the child reached the age of 18 in the course of pending proceedings it surely would have addressed the issue. If the court lost the power to make the order it would require the court to then join the child to the proceedings or at least to ascertain whether they wished to then make their own application. I do not think it can be right that procedural delay the fault for which might lie entirely at the door of either the court or of the respondent should have the potential to ‘knockout’ an application which was legally permissible and which was evidentially sustainable at the time of determination. Such an interpretation would potentially breach both the article 6 ECHR and article 8 ECHR rights of the applicant and the children and would be contrary to their welfare, whether as a primary consideration or simply as a consideration. It could in any event be partially remedied by joining the adult child as a party and deeming an application to have been made by them pursuant to Sch 1, para 2 albeit there would be a more limited range of orders available.”’

Previously in the same judgment (although not expressly cited in Nneka Mercy Ogbedo, G and V v Moses Oghenerume Taiga) His Honour Judge Hess said as follows:

‘[26] First, there appears on the face of it to be a prohibition on a parent making a fresh application on behalf of an adult child for an order under paragraph 1 where the child is already 18 at the date of the application. This prohibition emanates from the definition of ‘child’ under Section 105 and the inter-relationship of this provision with Schedule 1, paragraph 16. … I note also that the Court of Appeal in UD v DN (supra) expressly declined to deal with this question – see paragraph 69 of Moylan LJ’s judgment. Accordingly, I shall assume for the purposes of this case that there is a prohibition on a parent making a fresh application on behalf of an adult child for an order under paragraph 1 where the child is already 18 at the date of the application.
 
[27] Secondly, pursuant to paragraph 2(1) and (2), an adult child who satisfies one of the extension conditions above may make an application for a periodical payments order and/or lump sum order against a parent, but note that such an application cannot be made where, immediately before the applicant became 16, a periodical payments order was in force in relation to him: see paragraph 2(3).
 
[28] Thirdly, pursuant to paragraph 1(4), the court may vary a periodical payments order under paragraph 1. On one reading of this provision, such a variation application can be made by the parent after the child concerned has reached adulthood. On another reading (the one adopted by HHJ Everall in his judgment of 6th May 2020 in relation to N) this provision is over-ridden by paragraph 1(5) such that the court cannot make such a variation order once the child concerned has reached the age of 18. I should say at this point that my reading of King LJ’s comments of 20th October 2020 in the context of the application for permission to appeal could not be construed as expressly endorsing this particular view of HHJ Everall – though she describes his judgment as ‘detailed and careful’ she decided the application on other bases and did not specifically rule on this point. I shall return to this point below.
 
[29] Fourthly, pursuant to paragraph 1(5), the court may ‘at any time make a further’ periodical payments order or lump sum order under paragraph 1 with respect to the child concerned, but only ‘if he has not reached the age of eighteen’. I shall return below to the significance of this provision which is relied upon by Mr Thorpe in the present case.’

Sir Jonathan Cohen observed at [20] that:

‘[i]n terms of the outcome of the case, it matters not whether I find jurisdiction on the application of M or the children or both, as long as I find it on one of them.’

He concluded as follows:

[21] I am entitled to adopt a purposive construction of the statute. It would in my judgment be unfair if I were to find that a child, even if aged more than 18, is subject to special circumstances which justify the making of an order (almost invariably by reason of a disability) but that because of the fact of an order for his maintenance having been made before he reached the age of 16, he is debarred from pursuing an application for support. It would be illogical to arrive at such a conclusion so as to leave his needs unmet when they would have been met if his parents were married or if he had not been in receipt of such an order. I am fortified in this conclusion by the words of the commentator to which I have referred in respect of paragraph 6.
 
[22] Whilst paragraph 2 makes provision for an application by a person who has reached the age of 18, there is nothing in the statute which debars the parent of such a child from making an application on behalf of the child.
 
[23] I also draw attention to 1(4) which provides for the application to vary being made by any person by or to whom payments were (emphasis added) required to be made under the previous order. Whilst the order has, in my view, lapsed by reason of the conclusion of a first degree of tertiary education, that does not prohibit an application for a variation, including extension, or discharge. The test is not whether the order is still in effect at the time of the application but whether payments were required to be made under the previous order, as they plainly were.’

Sir Jonathan Cohen therefore adopted a purposive interpretation of the statute, determining that paragraph 2(3) did not apply to variation applications. Paragraph 1(4) permitted variation applications by ‘any person by or to whom payments were required to be made’. Although the pre-existing order had lapsed on completion of the children’s first-degree, that did not prohibit a variation application, including extension or discharge. The test was not whether a previous order was in force at the time of the application, but whether payments were required to be made under it. It may be argued that this is not wholly consistent with the letter of His Honour Judge Hess’ view in J & K v L (Schedule 1: Older Children) (Rev 1) at [34]⁠(vi) that ‘paragraphs 1(3) and 1(4) make it clear that a variation application (as opposed to a fresh application, for example after the expiry of an earlier order) can be pursued at any time’ (emphasis added) but it is clearly consistent with its spirit.

It therefore appears (but is not made explicit in the judgment) that Sir Jonathan Cohen considered himself to have jurisdiction on the mother’s application under either or both of paragraphs 1(4) or 6 even though the pre-existing order had lapsed. It therefore did not matter if he did not have jurisdiction under paragraph 2 as a consequence of sub-paragraph 2(3).

There are relatively few earlier authorities that bear on this issue.

In Re N (Payments for Benefit of Child) [2009] 1 FLR 1442 Munby J (as he then was) stated:

‘[74] There is, as it seems to me, considerable force in the father’s argument insofar as it is based both upon the specific provisions of Sch 1 and upon the legislative policy which Sch 1 appears to enshrine. Parliament, after all, has been careful in paras 2, 3, and 6 of Sch 1 to define narrow circumstances in which orders for financial provision can be made to extend beyond a child’s 18th birthday or, indeed, be made on application by a person who has already reached the age of 18 …’

In FS v RS and JS [2021] 2 FLR 641 Sir James Munby at [16] referred to MCA 1973 s 27 (headed ‘Financial provision in case of neglect to maintain’) and at [17] set out ss (6A) and (6B). At [21] he then set out CA 1989 Schedule 1 paragraph 2 and thereafter observed as follows:

‘[22] It will be noted that ss 27(6A) and (6B) of the 1973 Act pre-suppose a previous periodical payments order while para 2(3) of Sch 1 to the 1989 Act prevents an application where there has been a previous periodical payments order.’

In Siddiqui v Siddiqui and Another [2022] 1 FLR 840 (the appeal from FS v RS and JS) Moylan LJ stated:

‘[27] It will be noted that para 2(3) of Sch 1 stipulates that no application may be made by a child over 18 if a periodical payments order in his/her favour was in force “immediately before he reached the age of sixteen”. This is because a child can apply to vary or revive such an order respectively under para 6(4) and para 6(5).’

In UD v DN (Schedule 1, Children Act 1989; Capital Provision) [2022] 2 FLR 308 where having set out paragraph 1 Moylan LJ stated as follows:

‘[40] … It can be seen that orders are made “for the benefit of the child” or “to the child”; that periodical payments orders may be varied under sub-para (4); and that further orders can be made under sub-para (5). I would note that, under sub-para (4), there is no limitation on when an application to vary can be made. I would also note that, under sub-para (5), the court has power to make a further order under (2)(a), (b), or (c) provided the child “concerned … has not reached the age of eighteen”.’

Taking all these authorities together it can be said that paragraph 2(3) exists because CA 1989 Schedule 1 distinguishes between:

i) a fresh application by an adult child (under paragraph 2); and

ii) the variation of an existing order by the parent or adult child (under paragraphs 1 and 6).

If a child had an order in force immediately before they turned 16, that order would typically continue (or be capable of extension) through their transition into adulthood. In such cases, the adult child does not need to make a new application under paragraph 2; instead, they (or a parent) would apply to vary the existing order under paragraph 1(4) or paragraph 6 provided that order has not been discharged or expired in a way that prevents variation. Sir Jonathan Cohen took a purposive interpretation to the wording in paragraph 1(4) – which permits variation applications by ‘any person by or to whom payments were required to be made’ – emphasis added – and therefore although the pre-existing order had lapsed on completion of the children’s first-degree, that did not prohibit a variation application (including extension or discharge) because the test was not whether a previous order was in force at the time of the application, but whether payments were required to be made under it.

Such an analysis leaves the bar in paragraph 2(3) so as to ensure that paragraph 2 is reserved for adult children who did not have the benefit of a court order during their mid-teens and reflects the policy that Schedule 1 should not be used to ‘re-litigate’ financial provision that was already addressed by the court during the child’s minority, unless through the variation process.

Nicholas Allen KC
1 May 2026