Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
HIS HONOUR JUDGE BOOTH:
The background
1. This case concerns a child, C, who was born in October 2014. I shall refer to his parents as mother and father.
2. Two sets of proceedings have been running in parallel in relation to C, namely proceedings under section 8 of the Children Act 1989 concerned with which parent he should live with and where and the amount of time and in what circumstances he should see his other parent. The proceedings I have been concerned with are those under schedule 1 to the Children Act 1989, namely the financial arrangements to be put in place for the benefit of C.
3. The section 8 Children Act proceedings have recently been considered by the Court of Appeal. I can do little better than to quote the background from the judgment of Peter Jackson LJ. He said this:
“3. The background is that the mother is British and the father is American. They had the briefest of relationships while the father was working in this country and as a result C was born in 2014. In early 2015 the father moved to work in Canada. Unfortunately, there has been almost continual parental strife throughout C’s life. There have been two substantial sets of proceedings about him plus applications by both parents for injunctions and enforcement and parallel proceedings about financial support.
4. The first set of proceedings under the Children Act 1998 began with an application in September 2015 by the father for parental responsibility, for a change of surname and for orders governing his time with C. That litigation ended in April 2016 when His Honour Judge Jordan approved a detailed consent order arrived at after lengthy negotiations. The Judge first had contact with the case shortly after it started, and by the time he came to make the orders now under appeal it had been before him not less than a dozen times. The 2016 consent order had the unusual feature that the care of C was to alternate not only between the parents but also between countries, with him spending 8 weeks at a time with his mother and 4 rising to 6 weeks with his father. These arrangements were negotiated in the knowledge that C has special characteristics, and in October 2017 a formal diagnosis of autistic spectrum disorder was confirmed. In order to achieve his potential, he needs a professionally led support package and it was intended that the father’s time would rise to 6 weeks at a time once this was in place in Canada as it is in England. In the light of the parental conflict, the Judge also made a family assistance order to the CAFCASS officer.”
4. That was the arrangement for C that was in place at the time of the final hearing of the schedule 1 Children Act proceedings that I had been conducting.
5. On 15thDecember 2016 I made orders for the financial support of C from his father. C’s father is in extremely well paid but potentially relatively short-lived employment. C’s father lives in a rented apartment in Canada, he has staff to look after the apartment and himself and C when with him. He has the support of his parents who live in Florida and although he has, as I have said, a very substantial income, his case throughout has been that he spends all of it.
6. There were several factors in play in my deciding what was the appropriate financial provision to support C: First was the question of his father’s ability to pay; second was C’s needs; and thirdly, the contribution to his financial support that he could expect from his mother. One of the factors that featured heavily in the case was a desire, on his mother’s part, that his life with her should not be so dramatically different from his life with his father given his father’s financial circumstances.
7. C’s mother is a graduate from Oxbridge. Since she graduated she has not had regular paid employment but for some time had a business sourcing designer clothing for wealthy individuals. It was her case throughout that the birth of C, and the demands of caring for him as a single parent, put an end to that career. She has not had any significant employment since and most recently was working in a shoe shop.
The schedule 1 Children Act order
8. The outcome of the schedule 1 Children Act proceedings was as follows: I made an order for a settlement of property at a price not exceeding £700,000 net of SDLT, to be occupied by the mother together with C, until C had achieved the age of 18 or completed his secondary and tertiary education to first degree level, whereupon the property would revert to his father absolutely. There were provisions as to disallowing borrowings against the property, to provide for its insurance, with the mother being responsible for the outgoings and routine maintenance and repair of the property. The order provided that should the mother marry or cohabit or vacate prior to the reversion, that the father had liberty to apply to the court for early reversion. There was provision for liberty to apply to delay the reversion and a provision to allow the applicant to replace the property with an equivalent property on identical terms to allow her to move.
9. The provisions of the Child Support Act do not apply to C’s circumstances and so I made a periodical payments order for the benefit of C at the rate of £5,500 per calendar month until the completion of the purchase of the property and, thereafter, at the rate of £4,500 per calendar month. That sum was less than the father had initially been paying to the mother pursuant to a voluntary arrangement.
10. As it was the father’s case that he had no or no substantial savings, I gave him time to raise the money. He effectively had 6 months, with that period being applied to mother’s search for a suitable property and for him to raise the money. In fact, no such property has been purchased and the maintenance order for C has continued.
11. The orders that were in place for C to live with each of his parents on a rotating cycle was due to have been the subject of review by His Honour Judge Jordan on the first day of the schedule 1 Children Act proceedings. In fact, that was postponed until January 2017 where the order that was made recorded that the parents wanted to implement the previous arrangement with the Judge urging them to comply with the terms of a parenting agreement that they had reached.
Revival of the section 8 Children Act proceedings
12. The section 8 Children Act proceedings were back before His Honour Judge Jordan in March 2017 where C’s guardian was directed to file a short report. At that stage, in April 2017, the guardian had considerable concerns about the appropriateness of C remaining in the care of his mother. Further directions for evidence to be filed, including that from a psychologist assessing the mother, were made by His Honour Judge Jordan with the case to be listed later in the year.
13. On 1stJune 2017, 2 weeks before the final date for implementation of the settlement of property order that I had made, the father submitted an application to the court to vary the order made on 16thDecember 2016. So once again section 8 Children Act proceedings and schedule 1 Children Act proceedings were running in parallel before the court.
14. The outcome of the section 8 Children Act proceedings on 21stDecember 2017 was that His Honour Judge Jordan made an order that C should live with his father in Canada and spend time with his mother in England.
15. The mother appealed to the Court of Appeal and in April 2018 the Court of Appeal dismissed the mother’s appeal making detailed provisions for the time that C should spend with his mother, including time in the summer in England, making financial orders against his father to pay for air travel between England and Canada and for C’s father to pay for hotel accommodation for C and his mother for the time that C was to spend with his mother in Canada.
16. It is against that background that I am invited to reconsider the order that I made in December 2016.
The current applications
17. There is before me the application by father to vary the existing order by discharging it in its entirety. C’s mother has made an application to enforce the existing order.
18. Miss Guirguis of counsel has appeared for the father and Miss Brody of counsel has appeared for the mother. Both provided me with skeleton arguments and each supplemented those with oral submissions. Both agreed that there is no existing authority that has arisen in circumstances such as this and, in those circumstances, I decided to reserve judgment to reflect on the matter and have a further opportunity of doing some research of my own.
The legal framework
19. Both counsel agreed that the Family Court in England is properly seized of the matter. It was anticipated by the Court of Appeal that any further applications relating to the welfare of C would be more likely to take place in the courts of Canada. However, I am asked to deal with an order made in the Family Court in England. Counsel agreed that I have jurisdiction to deal with the matter, despite the words of schedule 1 Children Act not providing for any form of variation of a settlement of property order and where there is an express provision (section 1(4)) allowing for variation of orders for periodical payments.
20. The general jurisdiction of the court to make orders pursuant to schedule 1 of the Children Act was considered by Baker J inO v P [2011] EWHC 2425. He was concerned with an application for a financial provision made in February 2000. His analysis led him to conclude that the court’s jurisdiction was based on the operation of the Civil Jurisdiction and Judgments Act 1982 and the Brussels Convention on the Jurisdiction and Enforcement in Civil and Commercial Matters 1968. That Brussels Convention was superseded from 1stMarch 2002 by EC Regulation 44/2001 of 22ndDecember 2000 (referred to as Brussels 1). Brussels 1 was in turn replaced by Council Regulation (EC) No. 4/2009 (referred to as the Maintenance Regulation) with effect from 18thJune 2011 except in relation to procedures under way on that date.
21. The Maintenance Regulation has direct effect by operation of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI2011/1484). “Maintenance obligation” is not defined in the Maintenance Regulation but at recital 11 it is recorded that the Regulation should “… cover all maintenance obligations arising from family relationships, parentage …” The concept of “maintenance” for these purposes is wide. The Administration of Justice Act 1970 schedule 8 defines what is a “maintenance order” and that includes “4. An order for periodical payments or other payments made or having effect as if made under schedule 1 to the Children Act 1989.” Therefore, the court’s jurisdiction to make an order arose from the operation of the provisions of the Maintenance Regulation.
22. Article 3 of the Maintenance Regulation provides that jurisdiction shall lie with: (a) the court for the place where the defendant is habitually resident; or (b) the court for the place where the creditor is habitually resident; or (c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of the person if the matter relating to maintenance is ancillary to those proceedings unless that jurisdiction is based solely on the domicile of one of the parties; or (d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings unless that jurisdiction is based solely on the domicile of one of the parties. Article 9 of the Maintenance Regulation defines when a court is deemed to be seized of the application as “when the document instituting the proceedings or an equivalent document is lodged with the court or the date it is served if it is required to be served before it is lodged with the court.”
23. Counsel agree that the effect of this is that the Family Court in England had jurisdiction to make the order I am again considering by reason of the fact that the mother was residing in England at the relevant time. The effect of that is that the order I made on 15thDecember 2016 was made with jurisdiction. There was no appeal against the provisions of that order. The starting point is, therefore, that that order is binding on the parties, was the right order to have been made in the circumstances that prevailed at the time and can only be the subject of variation or alteration within the provisions that subsist at the time the application to vary was made, that being 1stJune 2017.
24. The court’s jurisdiction to enforce, vary or discharge the order also derives from the fact that the court has already made an order and from the Maintenance Regulation. Again, counsel agree that the effect is that the Family Court in England has jurisdiction to hear the application.
25. Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 provides that the Family Court has power to vary, suspend, rescind or revive any order made by it. This provision is given procedural effect by Family Procedure Rules 2010 Part 4.1(6) which provides that the Family Court may vary or revoke an order.
26. The way in which those provisions are to be applied was considered by Sir James Munby inCS v ACS [2015] EWHC 1005 (Fam)where he confirmed the power of the Family Court to rescind or revoke an order but went on to say that the power “… is not unbounded”. He analysed authorities that had arisen under similar provisions under the Civil Procedure Rules looking atTibbles v SIG plc (Trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518andMitchell v Newsgroup Newspapers Limited (Practice Note) [2013] EWCA Civ 1537.
27. In theTibblescase Rix LJ had said at paragraph 26: “(i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR Rule 3.1(7) there is, in all probability, no line to be drawn between the two. The Rule is apparently broad and unfettered but considerations of finality, the undesirability of allowing litigants to have two bites of the cherry and the need to avoid undermining the concept of appeal all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise on this appeal. (ii) The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only: (a) where there has been a material change of circumstances since the order was made; or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated. (iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute.”
28. The decision inTibbleswas followed in the case ofMitchell. Sir James Munby went on to consider the court’s power to vary final orders in two ancillary relief cases, namelyMusa v Karim [2012] EWCA Civ 1332andGohil v Gohil (No. 2) [2014] EWCA Civ 274where it was recognised that a litigant could apply to vary a final order where there had been a material non-disclosure. He also referred to the case ofRe: F (A Child) (Return Order: Power to Revoke) [2014] EWHC 1780 (Fam)where Mostyn J had considered the ambit of Family Procedure Rule 4.1(6) and concluded that it applied to final orders.
29. Sir James Munby concluded as follows: “In common with Mostyn J inRe: FI read the decisions of the Court of Appeal inKarim,SharlandandGohilcases as demonstrating that Family Procedure Rule 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife [an application to vary a financial order] can be made to the Judge at first instance.”
30. Counsel agreed that the combination of statutory provision, rules and authorities all confirmed that I have the power to vary or revoke the final order that I made in December 2016. The next question that arises is whether I should be exercising that power, and if so, what I should do.
The exercise of the discretion to vary or revoke
31. There is no doubt at all, and nor was it argued otherwise, that there has been a very significant change in circumstances. The arrangements for C that were in place in December 2016 were that his care was shared between his parents with him spending the majority of his time with his mother but extended periods of time with his father. It had been recognised throughout that the arrangements for his care would inevitably have to change by the time he started at school, but because of the shared nature of his care arrangements there was a need for C to have a home with his father and a home with his mother. I have already indicated the factors at play that led me to conclude what was the appropriate housing arrangement for C whilst he was in the care of his mother and of course a home cannot be provided very easily for periods when he is only physically with a parent as opposed to a home being a permanent fixture available as and when needed.
32. So how should I approach my task? Miss Brody conceded that the provision of a £700,000 home for the benefit of C could no longer be justified, but what then? A judge has the power to revisit a decision before proceedings are finally concluded. Although not directly applicable here I think it useful to consider how that power should be exercised. InRe: L (Children) (Preliminary Finding: Power to Reverse) [2013] [UKSC] 8the Supreme Court through Lady Hale said the following at paragraph 38: “Clearly that power does not enable a free for all in which previous orders maybe visited at will. It must be exercised ‘judicially and not capriciously’. It must be exercised in accordance with the overriding objective. In Family proceedings the overriding objective is ‘Enabling the court to deal with cases justly having regard to any welfare issues involved’; Rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments.”
33. In searching for principles to guide me through this exercise I have reached the following conclusions:
i) C’s welfare is central to my consideration. However, it is not the paramount factor as it might be in section 8 Children Act proceedings.
ii) The order that I made reflecting the circumstances as they did at the time, which was not appealed, must be the starting point of my considerations. The significant change in circumstances whereby C now lives with his father but spends time with his mother must be set against that starting point and I must reflect the current reality of C’s circumstances.
iii) The matters to which the court is to have regard in making orders for financial relief under section 4(1) of schedule 1 of the Children Act must guide the exercise of my discretion just as it did in December 2016. That requires me to have regard to all the circumstances including:
a) The income, earning capacity, property and other financial resources which each person mentioned in subparagraph (4) [father and mother] has or is likely to have in the foreseeable future.
b) The financial needs, obligations and responsibilities which each person mentioned in subparagraph (4) has or is likely to have in the foreseeable future.
c) The financial needs of the child.
d) The income, earning capacity (if any), property and other financial resources of the child.
e) Any physical or mental disability of the child.
f) The manner in which the child was being or was expected to be educated or trained.
The current financial circumstances
34. I have some recent financial information from both parents in the form of statements of means. C’s father’s circumstances remain exactly as they were. He is the beneficiary of a very substantial monthly income which he tells me that he spends. He says he has no substantive savings. His earning capacity is likely to be finite at its present level. What he might be capable of earning in the medium to long-term he does not address and I cannot begin to guess. As far as C’s mother is concerned, her earning capacity is, as yet, undeveloped. It is clearly important for her and for C that she makes the most of her undoubted talents and it may well be that she will have to apply herself to more conventional forms of employment. I do not accept, as Miss Brody contended on her behalf, that she is effectively unemployable not least because she would be required to make herself available to look after C when he comes to spend 7 or 8 weeks of the time over the summer in the United Kingdom. She is clearly a woman of intelligence and there seems no good reason why currently she should not be in reasonably well-paid employment. She has no capital resources.
The exercise of discretion
35. It is undoubtedly the case that the principal obligation of providing financially for C will fall on his father. It has done throughout his life to date and for the foreseeable future that is likely to continue. Now that he is living with his father, his father will have increased financial obligations towards C, not least to cover the specialist care arrangements to deal with his diagnosis. C’s mother has obligations to provide for herself and to provide for C when he is in this country. At the moment, that is limited to an extended period for a summer holiday.
36. The order that emanated from the Court of Appeal provided that the arrangements for C might be varied by his parents. The history demonstrates that no regime for C’s care has lasted any length of time and I cannot assume that the current arrangements are necessarily the last word.
37. C has all the financial needs of a child of his age. He has some extra financial needs because of his diagnosis. His financial needs are greater than many other children because he lives between two continents. C has no income or earning capacity or property or financial resources of his own. I have referred already to his diagnosis and the question of how he is to be educated has yet to be determined. I anticipate that will be a matter for his father to arrange together with the authorities in Canada.
38. When I made the order in December 2016 it was on the basis that C would be spending significant periods of time away from the home that was to be made available for him in England. That was an inevitable consequence of him living between two continents where the only practical way he can spend time with each of his parents is in blocks of time measured in weeks rather than the arrangements that more often confront the court where the parents of a child live relatively close together.
39. What I must bear in mind, as this is an application under schedule 1 to the Children Act, is that the objective under schedule 1 is to provide financial support to the child. It is not to provide financial support for a parent although some financial support to that parent is inevitable. It was inevitable under the arrangements I put in place in December 2016 where C’s mother got the benefit of a home for 365 days of the year even though C was spending many of those days in Canada with his father. In reality, what has happened is that the nomenclature as to who he lives with has changed, but the concept of C having a home for the time he is with his mother has not necessarily changed and that the shared care arrangement, expressed as such at the time I made the order in December 2016, is now an order that he lives with his father and spends time with his mother. I can say without fear of contradiction that the hope will have been that the quality of his time with his mother would not change because of that alteration albeit that the amount of time he spent with her was significantly reduced.
The parents’ cases on what I should do
40. Miss Guirguis argued that the whole of the December 2015 order should be revoked with the effect that there would be no home for C in England and no monthly payments for his support when with his mother. Miss Brody on his mother’s behalf proposed that a permanent home for C should be made available for him in England to be occupied by his mother but so that C has a permanent bedroom that is his, a home with which he can become familiar and that he should have monthly financial support for the time he spends in England with his mother.
Conclusions
41. There are two separate matters for my consideration: Firstly the monthly periodical payments order. I can see no justification for that continuing at all. There is financial provision made by the Court of Appeal to pay for air fares and to pay for hotel accommodation whilst mother spends time with C in Canada. Her incidental expenditures on food, entertainment, perhaps some clothing, are to be borne by her. She has to make an appropriate financial contribution to meet C’s needs within her ability to pay. There is no good reason why she should not be in employment. There is no good reason why she should not have a full-time job even if that means that for part of the time C is with her she must provide child care for him. That is a normal part of life for many children. Indeed, when his father is working, C will have to be cared for by other people including paid staff and his paternal grandparents. I am, therefore, going to discharge the order for periodical payments from the date when C moved to live with his father which was April 2018.
42. The provision of housing is, however, a different matter. There are several possibilities to provide accommodation for C when he is with his mother. One possibility is that she could take a short term let of a house or a flat, another might be that she could rent a hotel room, and those options were considered in some detail before me. They are clearly very different from a home. It is possible that C’s mother could rent. It is possible in due course that she could buy her own home. However, there is a very serious difficulty in the way of both of those options. She has managed to incur massive debt to her legal team because of the section 8 Children Act proceedings and the appeal to the Court of Appeal. She owes tens of thousands of pounds. She has other debts as well. There is no prospect in the foreseeable future of her being able to repay that debt. The effect of that is that she has a poor credit rating. She has no prospect of finding a deposit for either a rented house or to purchase a house, nor has she any prospects of raising a mortgage. That particular wound is, of course, self-inflicted because of the battle she has chosen to wage with C’s father over the living arrangements for C. C’s father also complains of the cost there has been to him. He is in the fortunate position, however, of being able to afford it.
43. Bringing all the threads together I have concluded that the arrangement for a settlement of property to be occupied by C when he is in England and his mother full-time, where the value of that property is retained by C’s father and reverts to him at the end of C’s minority or when he ceases full-time education, remains the appropriate arrangement. He should have his own room in a place that is wholly familiar to him and where his mother lives. That will meet his welfare needs when he is in the care of his mother.
44. However, given that C’s occupation of that property is, on the current arrangements, limited to some 8 weeks a year and may or may not increase but will be subject to a limitation in that C lives with his father and spends time with his mother, the amount of funding to be provided by C’s father needs to reflect that different reality. It seems to me that something like a two-bedroom flat or a small house anywhere from the city centre of Manchester heading north to Wigan, where mother is currently living with the maternal grandmother, would be appropriate. I do not need detailed evidence of the cost and can take judicial notice of the fact that such properties are readily available in that geographical area to allow the purchase of such a property within a figure of £200,000 net of SDLT.
45. There is absolutely no reason why father should not have that sum of money readily available. He should have had a rather larger sum available in July 2017. It will take mother a little while to identify a suitable property and for a conveyancing transaction to complete given that there are complications with the funds coming from abroad. I see no reason why that transaction, however, ought not to be completed within 3 months from the date of the handing down of this judgment.
46. In conclusion, I discharge the order for periodical payments with effect from the date when C moved to live with his father and I vary the settlement order by substituting the sum of £200,000 for the previous figure and that transaction is to be completed 3 months from the date of handing down of this order. I adjourn generally with liberty to restore mother’s application for enforcement so that should father default on this new arrangement she will not need to start again.
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