FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Mother |
Applicant |
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Father |
Respondent |
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A Child (Schedule 1, 1989 Act; Variation) |
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Mr Michael Glaser KC (instructed by Russell-Cooke LLP) for the Respondent
Hearing dates: 13 and 14 May 2025
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Crown Copyright ©
McKendrick J:
Introduction
a. the Applicant's C 100 Form application dated 5 September 2024 for a specific issue order to order the Respondent to: (i) enter the child's name into the register in the Middle East country of which the Respondent is a national; and (ii) sign an application for a passport of the Middle East country of which the Respondent is a national on behalf of the child.
b. the Applicant's deemed application for the order of Bodey J for periodical payments to be varied up because of: (i) the costs of a driver; (ii) security costs; and (iii) the costs of holidays;
c. the Respondent's deemed application for the order of Bodey J for periodical payments to be varied down because the child: (i) is a full time boarder 'and otherwise'; (ii) will take a gap year; and (iii) will attend university;
d. the Respondent's application to release a solicitor, who acts as the Respondent's intermediary, from certain undertakings given to Mr Justice Bodey in 2013.
Background
2009 |
Order made including: · The Respondent pay interim periodical payments as follows; o £15,000 to Applicant for general maintenance |
April 2010 |
Application by the Applicant for an upward variation of interim maintenance. |
2010 |
Applicant and the child rent the house which is later purchased as the trust property (at the Applicant's election). |
December 2010 |
Order including: · Periodical payments increased to £27,400 per month (£17,000 maintenance plus £10,400 for rent). |
2012 |
Applications by Applicant for amongst other things, legal fees, medical expenses, a holiday, a copy of Respondent's passport and surveillance reports. Order made included giving permission to the Applicant to apply for a US passport for the child and to travel with them as she wishes. |
14 December 2012 |
PTR in front of Mr Justice Bodey. Order made included an interim lump sum of £21,000 for the Applicant and the child to have a holiday in the USA at Christmas, specifically being noted by the judge as 'exceptional' and in the context of the upcoming hearing. |
1 March 2013 |
After a 10-day Schedule 1 Final Hearing, Mr Justice Bodey makes orders as follows: · Respondent to settle on the child the sum necessary to complete the purchase of the trust property at a cost of £3,450,000 and rights to the communal gardens at £17,500 and costs of purchase · Respondent to pay a lump sum to the Applicant to pay all of her unpaid legal costs, debts to third parties, £60,000 for a car and £25,000 for essential maintenance to the trust property · Periodical payments to Applicant for the benefit of the child: o £204,000 per annum monthly in advance until the child is 18 or later if they complete full-time education (inc. gap year) until end of first degree or further order o School fees and reasonable extras (up to £3,000) o Sums as required to meet university/other tertiary education o On 01.03.2017, 01.03.2021 and 01.03.2025 £37,500 (CPI linked) to enable Applicant to purchase a new car · Periodical payments and the cap on the Respondent's liability for school extras shall increase automatically each year. · Respondent agreed that he would provide sufficient security for future periodical payments (including educational expenses) |
1 March 2013 |
Order of Mr Justice Bodey in Declaration Of Parentage proceedings including: · Declaration that Respondent is the child's father · Applicant has sole Parental Responsibility and sole care for the child and Respondent does not have Parental Responsibility · Applicant cannot bind the Respondent to sign any documents/extra financial provision or otherwise when exercising the terms of this order. |
19 April 2013 |
Order of Mr Justice Bodey which included that: · The settlement of the trust property: o Applicant has liberty to request the trustees to sell the property and invest in a replacement property o Trust to continue until the child is 18/ end of first degree (inc. gap year) whichever is later o On expiry of the trust, the funds to revert to Respondent (and in the event of the child's death) o Each party entitled to nominate one trustee, this need not be a professional trustee o Trustees to fully insure the property and provide Applicant with the policy annually · Respondent's obligation to pay the child's tertiary fees shall apply to any such university, wherever situated, to which Respondent does not object |
17 May 2013 |
Order of Mr Justice Bodey including that; · The settlement of the trust property: o Trust property to be held by the Trustees by their holding all the issued shares in a company, which in turn own the title to the trust property. Respondent to take all necessary steps to bring this about o The Trust shall be in the form of the draft handed up at this hearing (and as amended re 24.05.2013 judgment) save as otherwise agreed by the Trustees o Nothing in 1(f) of 29.04.2013 shall prevent the Trustees paying out trust income on trust expenses o Respondent to bear costs of constituting the Trust · Respondent to pay to £17,000 for Applicant's rights to the communal gardens · Maintenance/repair/redecoration as follows: o Applicant responsible for internal maintenance/decoration and regular outgoings o Respondent responsible for maintenance/repair of structure and fabric, inc. drains, gutters, pipes and external decoration. If Respondent doesn't discharge as they fall due, settle into Trust additional sums o Any other repairs/maintenance of property/gardens shall fall to Applicant o Respondent to be responsible for ensuring programme of external redecoration maintenance and repair is put in place on a 5-year cycle, starting 31.09.2013/within 28 days of the constitution of the intended trust · Respondent by 24.06.2013 to bring £3.3m into the jurisdiction to act as security for periodical payments and educational expenses to be held in such manner as the parties agree |
25 June 2013 |
Housing Trust set up and Security Fund of £3.3m confirmed. |
26 June 2013 |
Purchase of property completed |
11 July 2013 |
Security Agreement signed between the Respondent and his intermediary for the holding of the security fund |
30 August 2013 |
Urgent application made by the Applicant and ex parte order of Hayden J for Respondent to pay £4,500 towards dental hospital fees for the child, with the Respondent's intermediary to pay the sum out of the secured fund.
Applicant's applications for an increase of the periodical payments and various other matters listed for a further hearing. |
11 December 2013 |
Order of Mr Justice Bodey including; · Undertakings of the Respondent's intermediary regarding security fund (Applicant's application for a new security arrangement dismissed) · Dismissal of Applicant's variation application · Refusal of permission to appeal |
31 December 2013 |
Application made by Applicant to appeal to the Court of Appeal. Appeal rejected on 10 December 2014 (Re A (A Child) [2014] EWCA Civ 1577) |
8 January 2015 |
Applicant's application for permission to appeal to the Supreme Court - permission was refused on 16 April 2015. |
November 2015 |
Application made by Applicant to the High Court for an increase in the periodical payments. Application dismissed by Mr Justice Bodey on 22 December 2015. |
4 June 2018 |
Application made by the Applicant for (amongst various other matters): · An increase in the maintenance payments · Provision of security · School extras increase · Passport for the child in the Respondent's country of nationality. |
22 January 2019 |
Hearing of the above application by Mrs Justice Roberts who dismissed all but three of the substantive matters before the court. Directions given in relation to: · Trust arrangements for the Property · Schedule 1 financial provisions · Passport for the child in the Respondent's country of nationality. |
February 2019 |
Applicant's non-molestation order application and hearing. Application dismissed. |
March 2019 |
Applicant sought to return the matters that remained open from Hearing of 22 January 2019 to court. Hearing listed for June 2019. |
7 May 2019 |
Order of Mr Justice Keehan vacating hearing of June 2019 by consent. |
June - October 2019 |
Applicant applied to restore the matter to the court, with hearings adjourned in October 2019 and January 2020 by consent. |
4 March 2020 |
Hearing focused on the appointment of Applicant's second trustee and security concerns raised by Applicant. Mrs Justice Roberts listed both items for further directions on 10 June 2020. |
10 June 2020 |
Order of Mrs Justice Roberts for CAFCASS to consider if the child should be independently represented and whether they should have party status in the proceedings. |
11 September 2020 |
Court email confirming that they had heard from CAFCASS who confirmed to the judge that they do not see a role for one of its officers to become involved in the ongoing financial proceedings. They recommended that the child does not need to be independently represented by a r.16.4. guardian. The matter is due to be listed for a hearing but the Applicant requests a delay to allow her to recuperate after an operation. Neither she nor her solicitors at that time sought to restore the application to the court. |
The Evidence
The Applicant
Respondent's Evidence
"At the time of the final hearing on 1 March 2013, the applicant's budget for periodical payments was at £668,799 p/a excluding school fees and extras – over £55,000 per month. A copy of that budget is enclosed at page 1 of exhibit JP2.
Mr Justice Bodey determined that the periodical payments for [The Child] should continue in the amount of £204,000 p/a. In paragraph 90 of his judgment, he commented that the applicant's budget was 'really a former wife's budget rather than a Schedule 1 budget'. He concluded that the existing level of maintenance would 'enable [the applicant] to give [The Child] a very good quality of life whilst recognising that she was not (legally) married to the father.'
The level of periodical payments was therefore considered in detail by three different High Court judges between 2009 and 2013, each of which made consistent orders. The applicant has however not been content with the outcome and has made no fewer than five further applications to increase the financial support she receives, being:
Application to the High Court – application made on 30 August 2013, just 6 months after the final hearing. This was rejected by Mr Justice Bodey on 11 December 2013;
Appeal to the Court of Appeal - application made on 31 December 2013, appeal rejected on 10 December 2014;
Application for permission to appeal to the Supreme Court – application made on 8 January 2015, permission refused on 16 April 2015;
Application to the High Court – application made in November 2015, dismissed by Mr Justice Bodey on 22 December 2015; and
Application to the High Court – application made on 4 June 2018, adjourned by the applicant and not restored."
"If [the Child] is to travel for the full period of his gap year, the applicant will have no direct expenses for [them] and will be providing no care for [them] at all. Indeed, [they] will be 18 at that time and it is usually considered part of the gap year experience that [The Child] learns to stand on [their] own two feet, travelling and working where [they] choose. As such, the periodical payments should reduce significantly at that stage as the applicant can work to support her own expenses entirely. My client's proposed budget is set out below but in short, we would propose that the maintenance is reduced to provide for food and housekeeping/house maintenance for the applicant, with a general maintenance amount for [the Child]. However, it would ultimately be a matter between the applicant and [the Child] as to what part of that total payment is made available to [the Child] directly to fund [their] gap year."
a. £ 138, 000 until summer 2026 when the Child will complete their A levels and school;
b. £ 80, 000 for 2026-2027 gap year (£ 40, 000 for the Child and £40, 000 for the Applicant's household expenses);
c. £ 100, 000 during university. The costs of fees and accommodation to be provided in addition.
The Law
(4) An order under sub-paragraph (2)(a) or (b) may 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 under the previous order.
(1) In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—
(a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (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.
6(1) In exercising its powers under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.
(2) The power of the court under paragraph 1 or 2 to vary an order for the making or securing of periodical payments shall include power to suspend any provision of the order temporarily and to revive any provision so suspended.
(3) Where on an application under paragraph 1 or 2 for the variation or discharge of an order for the making or securing of periodical payments the court varies the payments required to be made under that order, the court may provide that the payments as so varied shall be made from such date as the court may specify, except that, subject to sub-paragraph (9), the date shall not be] earlier than the date of the making of the application.
The first claim is that of HRH pursuant to Schedule 1 of the Children Act 1989. It has, in many respects, been overtaken by the claim HRH makes pursuant to Part III of the 1984 Act, so I need only deal with it briefly. Section 1(2) gives the court power to make financial orders by way of periodical payments, secured periodical payments, lump sums, settlement of property orders, or transfer of property orders but, in each case, the payment or transfer is to be either to the child himself/herself or to the applicant for the benefit of the child. Section 1(5) permits the court to make further orders for periodical payments, secured periodical payments or lump sums, at any time if the child has not reached the age of 18. Whilst orders normally end on either the child's 17th or 18th birthdays, this does not apply, pursuant to s3(2), if the child continues in education or there are special circumstances which justify the making of an order thereafter. Whilst an order shall, in general, cease to have effect on the death of the person liable to make the payments, this is not the case with a secured periodical payments order. The matters the court is to have regard to in deciding whether to exercise its powers and, if so, how to do so, are set out in s4. The court shall have regard to all the circumstances, including:-
(a) The income, earning capacity, property and other financial resources which (each parent) has or is likely to have in the foreseeable future;
(b) The financial needs, obligations and responsibilities which (each parent) has or is likely to have in the foreseeable future;
(c) The financial needs of the child;
(d) Any physical or mental disability of the child; and
(e) The manner in which the child was being, or was expected to be educated and trained.
There are three points of law arising. The first is that the court has, repeatedly, permitted a personal allowance for a caring parent in assessing the quantum of periodical payments orders. This started with cases such as Haroutunian v Jennings (1980) 1 FLR 62 but has more recently been endorsed by the Court of Appeal in Re P (Child: Financial Provision) [2003] EWCA Civ 837…."
a. When determining a child maintenance application, the welfare of the child must be a constant influence.
b. A child maintenance award can extend beyond the direct expenses of the children. It can additionally meet the expenses of the mother's household, to the extent that the mother cannot cover, or contribute to, those expenses from her own means. Such an award might be referred to as a Household Expenditure Child Support Award ('a HECSA'). The essential principle is that it is permissible to support the child by supporting the mother.
c. But a HECSA cannot meet those expenses of the mother which are directly personal to her and have no reference to her role as carer of the child. An example is a subscription to a nightclub. However, the award can meet the expenses of the mother which are personal to her provided that they are connected to her role as a carer. Examples are the provision of a car or designer clothing.
d. The reasonable level of the mother's household expenses should be judged by reference not only to the present standard of living of the respondent but also, if applicable, to the standard of living enjoyed by the family prior to the breakdown of the relationship. The object of a HECSA is not to replicate either such standard, but to ensure that the child's circumstances "bears some sort of relationship" to them. The standard of living in the parties' home prior to the breakdown of the relationship is "as good a baseline" as any other.
(As will be seen, Moor J in the later Maktoum case, expressed the test as being that the children should be entitled to a lifestyle that is "not entirely out of kilter" with that enjoyed by them before the breakdown of the marriage, and that currently enjoyed by the father and his family).
e. The HECSA must be set at such a level that the mother is not burdened by unnecessary financial anxiety.
f. When assessing the mother's budget, the court should paint with a broad brush and not get bogged down in detailed analyses. Rather, the court should achieve a fair and realistic outcome by the application of broad common-sense to the overall circumstances of the particular case."
30. At paragraph 119 Mostyn J observed that standard of living before the breakdown of the relationship "…should not however be allowed to dominate the picture as there will be many children, particularly children dealt with under Sch 1, who will not have experienced a standard of living within a functioning relationship either because the liaison between the parents was very brief, or because the child was born after the relationship had come to an end".
35. ix) Child maintenance can be interpreted sufficiently broadly to include elements referable to the claimant in his/her capacity as the child's carer; Re P (supra) at paras 48-49. For many years this proposition, or concept, was known as the carer's allowance. More recently, at para 129 of Fuchs (supra) Mostyn J has suggested referring to it as a Household Expenditure Child Support Award [HECSA]. Whatever terminology is applied, the principle is clear, although its application is highly discretionary. It is not always easy to draw a bright line between budgetary items to which the claimant has no entitlement as being exclusively personal to him/her, and personal items which may reasonably be claimed as being necessary to discharge the carer's duties, including items which help sustain the carer's physical/emotional welfare; Re P (supra) at para 81. The court "… has to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother's benefit rather than for the child"; J v C (supra) at 159H.
Analysis
Periodical Payment Applications
37. Since 2013, the Child has grown up and their circumstances have evolved with their developing age. However, their relevant circumstances have changed very little. The Child lives in the property Bodey J arranged at the trust property and lives with the Applicant mother. As Bodey J anticipated the Child is at school, will take a gap year and will likely attend university. I detect nothing in the Applicant's or Respondent's evidence that the Child's mother's caring role has changed. Rather it has simply evolved as Bodey J would have anticipated. It seems to me wrong to conclude that because the Child is seventeen, the mother's caring role has very significantly diminished. That is not her evidence and indeed she seeks an increase in the periodical payment and refutes the Respondent's application her role qua carer has reduced. The Respondent's evidence is not focused on the Child and their needs as a seventeen year old and how the Applicant mother meets her child's needs as a caring mother. The Respondent's evidence tells me nothing or very little about the Applicant's caring role. I am not prepared to assume just because the Child is seventeen, and is almost an adult, that it follows the Applicant mother's caring role is very much reduced. I have almost no evidence of the Child's emotional state or dependence on the mother. I note Ms Pollock's evidence is that a gap year: "is usually considered part of the …… experience that [the Child] learns to stand on [their] own two feet." With respect to Ms Pollock, she knows nothing or very little about the Child and their relationship with the mother as their carer. For example, I do not know whether the Child will become homesick (albeit they are a weekly boarder) if travelling alone on the other side of the world. I do not know if they will need to regularly see their mother and as a result she will plan to meet them at regular and frequent intervals. The Respondent's written evidence, through his solicitor, is speculation and not rooted in the Child and their needs.
Specific Issue Orders
The Respondent's intermediary's undertaking
[The Respondent's intermediary] is now very seriously unwell and is in hospital. The Security Deed and the order of 11 December 2013 confirm that in the event of [The Respondent's intermediary's] death, the Respondent was to make arrangements for the replacement of [his intermediary] with another 'similarly suitable' individual who would hold the fund in this jurisdiction and to enter into an identical agreement to the Security Deed. [The Respondent's intermediary and firm] would then be discharged from their obligations. However no provision was made for what would happen in event of [the Respondent's intermediary's] incapacity or retirement from practice.
As [the Respondent's intermediary] intends to retire from practice completely now and to close down his practice, in line with the Security Deed and order of 11 December 2013, the Respondent has nominated that Russell- Cooke hold the security fund instead. Russell-Cooke are willing to take over the holding of the security fund and to provide undertakings and to be covered by the court orders with identical provisions to those currently in place. This has been confirmed in the Deed of Novation (already signed by the Respondent and to be signed by Russell-Cooke if approval is received from the Court) and the draft order provided.
There will be no impact upon the Applicant and [the Child] of the transfer of this fund to Russell-Cooke. On a practical level, it will make the administration of the fund and payments to the Applicant more efficient as they will not need to be transferred from [the Respondent's intermediary's practice]to Russell-Cooke, and then on to the Applicant. In addition, given that Russell-Cooke is a large law firm, the operation of the fund will not be reliant upon one solicitor remaining in practice and the administration will be undertaken by the firm's accounts department. A ledger will continue to be provided to the Applicant on an annual basis.
Transferring the fund from [the Respondent's intermediary's practice] has now become urgent to prevent what could be a significant delay if [the Respondent's intermediary's] health worsens. We understand that if [the Respondent's intermediary] was to become incapacitated, the SRA may choose to intervene in [the Respondent's intermediary's practice] and take over the closing down of the firm. For the Applicant's reference, this is because [the Respondent's intermediary's]practices as a sole practitioner, so there is not another solicitor there to continue running the firm. We understand that this would mean that the [the Respondent's intermediary's practice] client account, including the security fund held on it, would be frozen and payments would not be able to be made from it until it is released by the SRA. This could cause a significant delay in the security funds being transferred or payments from it being authorised. This is why Russell-Cooke have agreed to take over the fund and have made the application accordingly.
Conclusion