CF v KM
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] EWHC 1754 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD09P01325 |
| Date | 13 July 2010 |
[2010] EWHC 1754 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: The Honourable Justice Charles
Case No: FD09P01325
Mark Johnstone (instructed by Davies Arnold Cooper) for the Applicant
Rebecca Bailey – Harris (instructed by Kingsley Napley) for the Respondent
Hearing dates: 29 June 2010
Judgment Approved by the court for handing down
Charles J:
Introduction
This is an appeal from a dismissal by DJ Aitken of an application by the Appellant Mother (the mother) of an application made under Schedule 1 of the Children Act 1989 for a lump sum payment for the benefit of her daughter (the child) to meet, or to contribute to, (a) the costs of the Schedule 1 claim (the Schedule 1 proceedings) and (b) proceedings under the Children Act 1989 relating to where the child should be educated and where she should live (the s. 8 proceedings). The Respondent to the Schedule 1 proceedings and this appeal, and the applicant in the s. 8 proceedings is the child's father (the father).
The District Judge dismissed the application for such a costs allowance on the basis that she had no jurisdiction to make the order sought.
The case was presented to the District Judge, and this appeal was opened, on the basis that the court had no jurisdiction to make an order for periodical payments to cover the costs allowance sought because this was precluded by s. 8(1) and (2) Child Support Act 1991. The basis for this approach was that a CSA assessment had been made in 2004 and, although a review was sought May 2010, this had not yet been completed and the present assessment was below the maximum assessment.
The premise for that stance was and is that, unless and until the Commission make a maximum assessment, the Court's power to order “top up” periodical payments pursuant to s. 8(6) Child Support Act 1991 is not engaged. I queried this, because it is not what s. 8(6) expressly provides, and I was referred to Re P [2003] EWCA Civ 837 and H v C [2009] 2 FLR 1540. It seemed to me arguable that the court could determine the issue of fact that is part of the trigger to its jurisdiction set by s. 8(6)(b), namely whether the father has a net weekly income in excess of the figure set in regulations (at present £2,000 per week). It was common ground that the jurisdictional issue of fact set by s. 8(6)(a) is satisfied.
Unsurprisingly, the mother's counsel sought to adopt and pursue this argument which has two elements namely whether (a) the original common approach that the court's jurisdiction is not engaged unless and until the Commission makes a maximum assessment is correct, and (b) if not, whether the father's net income exceeds £2,000 a week. Understandably counsel had not come prepared to argue point (a), and the evidence had not been directed to point (b). Consequently, as I indicated during the hearing, I concluded that the point could not be fairly pursued on this appeal.
However, in my view, whatever the answer is to point (a) there should be a full two way street of disclosure relating to the father's income and more generally his financial resources between the Schedule 1 proceedings and the Commission's assessment.
The jurisdictional issue on the appeal is therefore whether the court has power, where a child maintenance calculation below the maximum assessment is in place, to make a payment for the benefit of the child in respect of legal fees of the Schedule 1 proceedings and/or other proceedings (here the s. 8 proceedings).
The most relevant statutory provisions of Schedule 1 Children Act 1989
These are, with my emphasis for present purposes:
“Financial Provision for Children
Orders for financial relief against parents
1 (1) On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may–
(a) in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2);
(b) in the case of an application to a magistrates' court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.
(2) The orders referred to in sub-paragraph (1) are–
(a) an order requiring either or both parents of a child–
(i) to make to the applicant for the benefit of the child; or
(ii) to make to the child himself,
such periodical payments, for such term, as may be specified in the order;
(b) an order requiring either or both parents of a child–
(i) to secure to the applicant for the benefit of the child; or
(ii) to secure to the child himself,
such periodical payments, for such term, as may be so specified;
(c) an order requiring either or both parents of a child–
(i) to pay to the applicant for the benefit of the child; or
(ii) to pay to the child himself,
such lump sum as may be so specified;
(d) an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property–
(i) to which either parent is entitled (either in possession or in reversion); and
(ii) which is specified in the order;
(e) an order requiring either or both parents of a child–
(i) to transfer to the applicant, for the benefit of the child; or
(ii) to transfer to the child himself,
such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.
(3) The powers conferred by this paragraph may be exercised at any time.
(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.
(5) Where a court makes an order under this paragraph–
(a) it may at any time make a further such order under sub-paragraph (2)(a), (b) or (c) with respect to the child concerned if he has not reached the age of eighteen;
(b) it may not make more than one order under sub-paragraph (2)(d) or (e) against the same person in respect of the same child.
(6) On making, varying or discharging a residence order the court may exercise any of its powers under this Schedule even though no application has been made to it under this Schedule.
Matters to which the court is to have regard in making orders for financial relief
4 (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 (3) has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (3) 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.
(2) In deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, and if so in what manner, the court shall in addition have regard to–
(a) whether that person had assumed responsibility for the maintenance of the child and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility;
(b) whether he did so knowing that the child was not his child;
(c) the liability of any other person to maintain the child.
(3) Where the court makes an order under paragraph 1 against a person who is not the father of the child, it shall record in the order that the order is made on the basis that the person against whom the order is made is not the child's father.
(4) The persons mentioned in sub-paragraph (1) are–
(a) in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child;
(b) in relation to a decision whether to exercise its powers under paragraph 2, the mother and father of the child;
(c) the applicant for the order;
(d) any other person in whose favour the court proposes to make the order.
Provisions relating to lump sums
5 (1) Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses–
(a) incurred in connection with the birth of the child or in maintaining the child; and
(b) reasonably incurred before the making of the order,
to be met.
(2) The amount of any lump sum required to be paid by an order made by a magistrates' court under paragraph 1 or 2 shall not exceed £1000 or such larger amount as the Secretary of State may from time to time by order fix for the purposes of this sub-paragraph.
(3) The power of the court under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments by a parent shall include power to make an order under that provision for the payment of a lump sum by that parent.
(4) The amount of any lump sum which a parent may be required to pay by virtue of sub-paragraph (3) shall not, in the case of an order made by a magistrates' court, exceed the maximum amount that may at the time of the making of the order be required to be paid under sub-paragraph (2), but a magistrates' court may make an order for the payment of a lump sum not exceeding that amount even though the parent was required to pay a lump sum by a previous order under this Act.
(5) An order made under paragraph 1 or 2 for the payment of a lump sum may provide for the payment of that sum by instalments.
(6) Where the court provides for the payment of a lump sum by...
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