Family Law Hub

N v C [2013] EWHC 399 (Fam)

  • In a tweet: A substantial claim for housing and maintenance brought by the NRP against the PWC

    Summary: This concerned a Schedule 1 Children Act 1989 application for the benefit of a 12 year old, P.  

    P's mother ("M") was Scandinavian; she had come to England in 1995. She was close to her family who had remained in Scandinavia and had brought up P as bilingual.  P's father ("F") was a professional musician. Their relationship had lasted only a few years, during which time P was born.  

    F owned two London properties:

    • "A" – where he and his current partner and their baby lived; and 
    • "B" – a three bedroom property near "A" where M and P had lived together until August 2011 – M continued to live there.  

    In August 2011, P had left property B after difficulties arose in her relationship with her mother; she moved in with F and, although she still saw M, P had not stayed overnight in M's house since.  

    Following P's departure from M's house, F began residence and prohibited steps order proceedings. The parties were able to compromise those proceedings on the following terms: 

    • neither M nor F would seek a residence order in respect of P; 
    • P would be able to stay overnight with M if she wanted to; 
    • both M, F and F's partner would continue to encourage P to stay overnight with M and to spend more time with M; 
    • F undertook not to consume alcohol during P's minority and to continue to undertake hair strand testing, blood testing, and liver function testing in respect of alcohol until 30 November 2013 and to provide to M's solicitors copies of the test results as soon as they were available; 
    • F's partner undertook to inform M and M's solicitor immediately of any relapse or suspected relapse by F in his abstinence from alcohol during P's minority; and
    • P should be in the care of M during term-time every Friday from school until 9.00 p.m.; on alternate weekends, on Saturdays from 10.00 a.m. until 7.00 p.m. and on Sundays from 10.00 a.m. until 6.00 p.m. and for half of all school holidays; at all other times it was agreed that P should be in the care of F.  

    As you can see, the effect of the order (although it does not say so explicitly) was that P was now living with F and had contact with M. Now, this was very relevant to the Schedule 1 application because, as His Honour Judge Hayward Smith QC pointed out, it went to the question as to whether or not the court had jurisdiction to make the orders M was seeking. 

    M sought:

    • a maintenance order of £2,200 per month or, (in the event there was no jurisdiction to make a maintenance order) in the alternative, a lump sum paid in instalments to cover such payments until P reached 18 or finished full time education (as it was, that alternative position was not pursued at this hearing because the circumvention of s. 8 Child Support Act is precluded by Phillips v. Peace [1996] 2 FLR, 230); 
    • a lump sum of £200,000 for the complete refurbishment of property B; 
    • property B be put into trust for P until P reached 18 or finished full time education; 
    • F to pay P's education expenses including non-compulsory school trips, university fees, university accommodation and living costs whilst P was at university, gap year travel expenses, expenditure in respect of motor vehicles, tax and insurance for P and any other large ad hoc sums required as may be agreed plus Swedish summer camp fees in the sum of £2,000; and 
    • a further lump sum of £6,000 to enable M to purchase necessary items for property B.  

    Basically, what was before the court was a substantial claim for housing and maintenance by a non-resident parent.  

    F's position was that M could remain at property B for a further six months; he would then pay to her a lump sum of £10,000 as well as the travel costs for P to go to Sweden once a year. He contended there was no jurisdiction for the court to make the maintenance order sought and that M had a substantial earning capacity that should be utilised; he emphasised that he had provided a home for M and P for ten years but that now P was living with him, M needed to stand on her own feet financially i.e. M's claims were a thin disguise for financial provision for herself.  

    Insofar as their financial positions were concerned, F had total capital of about £3 million. Property B had been valued at £912,500 and property A had been valued at £1.156million (but was subject to a mortgage of £600,000). F also had a farmhouse worth about £850,000. His income fluctuated - for the year 2010/2011 it was about £112,000 net. whereas in 2011/2012, it was about £244,500 net.  

    M meanwhile had no capital of any substance and her income was about £8,800 a year.  

    F submitted that the Re P (Child Financial Provision) [2003] 2 FLR, 865 supported his proposition that the court should not make – nor indeed could not make – a financial order under Schedule 1 against a resident parent in favour of a non-resident parent. Hayward Smith J, in his judgment, noted that whilst such orders were unusual, an example could be found in Re S (Child Financial Provision) [2005] 2 FLR, 94 which M had sought to rely upon. In that case, the Court of Appeal had looked favourably upon a non-resident mother's application under Schedule 1 for funds to travel for contact to her child in Sudan. This though appeared to be the only reported case where the jurisdiction had been exercised.  

    Held: M's application was dismissed. 

    In his assessment of M, the judge noted that she was "bitterly resentful" of F to the extent that she could be vindictive; the judge was satisfied that she had threatened F to go to the press with her story if he did not meet her demands. He was also satisfied that she had exaggerated the extent of the repairs needed at  property B and that the property did not need £200,000 spending on it; he agreed with F that the repairs (F had accepted that some work was needed) were more in the region of £75,000. Allowing M to have sole charge of those works would also lead to more problems between the parties.  

    The judge noted that M had justified her maintenance claim by way of a very detailed schedule which included £1,050 for M's driving lessons, £960 for M's physiotherapist and cranial-sacral therapist as well as her yoga lessons. Bizarrely it also included £1,000 for petrol despite the fact that M did not own a car.  The judge was blunt in his appraisal:

    "In my view she is putting her claim on a false basis." 

    Of course, there was a question as to whether P was ever likely to return to live with M. The judge referred to the report from an independent social worker (obtained in the previous proceedings) which concluded that P had suffered emotional harm as a result of M's behaviour and that P had a strong desire to remain living with F. M meanwhile had been unable to comprehend that there were difficulties in her and P's relationship nor did she have any insight as to why P did not want to stay with her. As a result of what was heard in court, the judge reached the conclusion that it was unlikely that P would return to live with M.  

    Such a conclusion was perhaps anticipated by M because she also put her case on an alternative basis - that she needed to have a home (i.e. property B) to be able to enjoy contact with P as well as  the financial ability to run it. The judge referred back to an earlier hearing dealing with F funding M's legal costs – at that hearing the judge observed, F had made an offer to settle the matter by allowing M to remain at property B until P was 18 or completed full time secondary education even though P was living with F. He had also offered to carry out repairs to property B up to the value of £75,000. F's offer gave M continued occupation of property B to enable her to have contact with P. Although this offer was not taken as F's stance at the hearing, the judge highlighted that it had been a very sensible offer something M should have seriously considered (indeed, the judge went one step further and said M should have accepted the offer). He observed that M, in refusing the offer, had not been thinking of P's welfare.  

    The judge then went on to consider M's earning capacity in the event that she left property B. He referred to the various qualifications M had obtained since coming to England and, although the current economic climate was taken into account, the judge emphasised that M had taken no steps at all to obtain proper, paid employment despite having the time to be able to do so. Although the judge could not put a figure on M's earning capacity, he was firmly of the view that she could support herself financially. 

    Of course, let's not forget that P's welfare had to be taken into account too. Although not a paramount consideration, the judge expressed the importance of this factor and the need for him to consider it carefully. He noted that, if he did not provide for M to remain at property B, M would be very upset and would no doubt involve P in her disappointment; in turn that would be compounded if, contrary to his findings about her earning capacity, M could not or would not find and fund other suitable accommodation. He drew the conclusion that even if F provided another property to M, M would not move there – as far as M was concerned, the only acceptable outcome of the case was her remaining at property B with £200,000 being spent on it, plus substantial maintenance.   

    Although P's welfare did not dictate that M had to stay at property B, the judge still took into account that an unsuccessful application would result in short term upset for P. He agreed with F that, however unpleasant that might be, it would probably be the best thing in the long term.  

    Indeed, in assessing F's evidence, the judge expressed that he had been impressed by him and that he had believed his evidence; his evidence was to be preferred to M's when they conflicted. He noted that F had been hit hard by the legal costs, particularly as he had had to fund M's costs too. He had provided M with over £160,000 to meet her legal expenses (of which £70,000 was referable to the Schedule 1 proceedings.

    The judge then turned to an issue of some importance – the court's jurisdiction to make the maintenance order. He referred to the Child Support Act and considered that M was wrong in suggesting that, since F's income was beyond £2,000 net per week, the court had jurisdiction to make a maintenance order. Finding that F was the resident parent and that the Child Support Act did not apply, the judge confirmed the lack of jurisdiction to make the order sought.  However, once again expressing his contempt for M, the judge explicitly stated that, even if he did have jurisdiction, he would not make the requested order because M's focus had been to seek provision for herself and not for P.  

    In summing up, the judge said: 

    • F had no legal obligation under Schedule 1 to provide a home for M nor to maintain her. His obligations relating to housing and maintenance related only to P and to M  only insofar as they were of benefit to P.  F was under no obligation to provide M was property B as a home to enable contact to take place. 
    • F was providing a home for P with him, P would continue to have contact with M wherever M resided.  
    • It was unlikely that P would return to live with M and M had therefore made her claim on the false basis of P returning to live with her.  
    • F had made an offer that M could remain at property B until P reached the age of eighteen or finished full-time education and would repair and refurbish property B at a cost of up to £75,000.  M had unwisely refused that offer.  
    • M's claim was in reality a disguised claim for the benefit of her and not P. She had not been taking into account P's welfare when launching her application.  
    • There was not jurisdiction to make the maintenance order sought and, in any event, even if there was jurisdiction, this was not a case where such an order could be justified.  

    Comment 

    This is an unusual case. Counsel had found no case where an order under Schedule 1 for substantial financial relief has been made against a resident parent in favour of a non-resident parent albeit for the benefit of a child.  

    On a procedural point, the court noted that although F had given his financial details in his Form E, it had been an unfortunate feature of the case that he has been required to produce accounts, bank statements, and valuations. The case has been conducted as though this were a full-scale financial inquiry in proceedings following a divorce, even though it should have been obvious from F's Form E that he could honour any order the court might make. M had been able to pursue her claim in the manner that she has because F had already provided for her costs of doing so.

Case note, published: 15/04/2013

Topics

See also

  • Application by the NRP against the PWC under Schedule 1 of the Children Act for financial relief for the benefit of the child Judgment, 15/04/2013, free

Published: 15/04/2013

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item