A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Sir Stanley Burnton,Lord Justice Lewison |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1577 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/3800 |
| Date | 10 December 2014 |
[2014] EWCA Civ 1577
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
MR JUSTICE BODEY
FD09P02003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lady Justice Macur DBE
and
Sir Stanley Burnton
Case No: B4/2013/3800
Mr J Turner QC and Mr E Devereux (instructed by Selva & Co Solicitors) for the Appellant
Mr M Glaser (instructed by Russell Cooke Solicitors) for the Respondent
Hearing dates: 7 November 2014
OVERVIEW:
This case involves the child of an absent and unmarried father possessed of great financial wealth. The mother appeals against the quantum of periodical payments ordered to be paid for the benefit of S, then aged 4 years 11 months, by Bodey J on 1 March 2013, pursuant to paragraph 1 (2)(a) of Schedule 1 of the Children Act 1989 (in "Schedule 1 proceedings"). An application to vary the order made on 30 August 2013 was refused on 11 December 2013. Other prospective challenges to the order suggested in the mother's self drafted notice of appeal and the subsequent counsel drafted substituted amended notice and skeleton argument have not been pursued.
Bodey J refused the mother permission to appeal his order made on 11 December and sealed on 30 December 2013 but extended the time in which she could renew her application to the Court of Appeal until 21 days after receipt of a transcript of his judgment "in the New Year". Her notice of appeal against the December order was in fact filed well within time but she also, and necessarily, sought permission to appeal the March 2013 order out of time.
The mother was represented by leading and junior counsel in March 2013. She appeared as a litigant in person in December 2013. She has been represented in the appeal by Mr James Turner QC and Mr Devereux, neither of whom was instructed in the court below. Mr Glaser appeared on behalf of the father and filed written submissions in response to the skeleton argument prepared on the mother's behalf. The Court did not call upon him further.
In granting permission to appeal both orders on paper the single judge implicitly granted an extension of time in respect of the March 2013 order. The full court consequently heard the appeal on the merits. Nevertheless, the resurrection of the ability to make an application for permission to appeal a substantive order by the process of an application to vary calls for further judicial comment as appears in paragraph 34 and 35 below.
In opening the appeal, Mr Turner identified the following questions as being pertinent to this appeal and other similar cases:
(i) Does the so called "millionaire's defence" (See Thyssen–Bournemisza v Thyssen – Bournemisza (No 2) [1985] Fam 1) still have a proper place in Schedule 1 proceedings?
(ii) If so, by reference to what principled criteria is a Schedule 1 award to be calculated?
(iii) To what extent can the element of carer's allowance take into account the future needs of the carer at the conclusion of the relevant child's dependency by reason of the benefit to the emotional welfare of the child in knowing that his/her parent is not going to be rendered "destitute"?
Specifically, as to the instant appeal, it is argued that Bodey J did not make adequate financial provision for S by reason of his failure to ensure adequate disclosure of the father's assets and resources, the latter having asserted the "millionaire's defence" at an early stage in the Schedule 1 proceedings in April 2010. In these circumstances, it is said, the judge was wrong to proceed to quantification of the claim or else should have drawn the adverse inference against the father of concealing huge wealth. By not doing so he imposed an artificial ceiling on periodical payments – putting the cart before the horse by (i) limiting the housing requirements of the child or else regarding them as indicative of appropriate maintenance, and/or (ii) cross-checking budget for reasonableness rather than noting the ability to provide lavishly for a luxurious lifestyle comparable to that of the father as was appropriate and fair in all the circumstances. Additionally, although it was not argued in the court below, otherwise failed to order periodical payments in such a sum so as to aid the mother's ability to provide for her own housing/maintenance needs at the conclusion of S's dependency.
BACKGROUND
The pertinent facts may be shortly stated. The father is a member of the wealthy ruling family of a middle eastern country; the mother was born into an affluent Egyptian family, although she now describes herself as "virtually destitute". The parties went through an Islamic marriage ceremony in January 2007. The marriage is not recognised in England and founds no basis for financial orders in the mother's own right in this jurisdiction. The parties have never co-habited. S was conceived in August 2007. The parent's relationship ended at the end of that year. The father has never had contact with S, nor does he seek any. S suffers from a syndrome called MBL Immune Deficiency which renders him vulnerable to infection and also has a diagnosis of Kawasaki disease, an anti immune condition. However, at the time of the hearing he was "on a prophylactic antibiotic regime off which he should be weaned by about March 2014…on examination by Dr N, S looked well and his height and weight were satisfactory". The mother and S have lived in London since 2009. The mother has suffered from mental ill health; she has no independent means, nor is she likely to acquire significant income from her own endeavours in at least the short or medium term.
The mother's application for financial provision for S was issued in September 2009. At that time the mother "pitched her claim" for interim periodical payments, including carers allowance, rent and school fees at £1,048,404 per annum. Interim payments of £15,000 per month were ordered in October 2009, and increased to £27,400 per month in December 2010 to accommodate the "fait accompli" of the mother's unilateral decision to move to significantly more expensive rented accommodation. By the time of the hearing before Bodey J, "the mother's most recent budget for S and carer's allowance is £668,799 per annum." She wished to remain in the house which she had occupied as a tenant since 2010 by means of purchase of the freehold in the sum of £3.5 million. It was argued that the freehold should be transferred to S when he came of age.
Bodey J ordered the purchase of the freehold but declined to depart from the well established practice of maintaining a reversionary interest for the father when S completed his tertiary education. In this context, and in accordance with the practice suggested by Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2FLR 865 he awarded £204,000 per annum, in addition to school fees and a car allowance, costs attributable to the upkeep of the house to be paid by the father, an immediate decoration/repair fund of £25,000 and a substantial lump sum of approximately £770,000 to clear the mother's debts. The majority of the mother's legal fees in relation to the Schedule 1 application, immigration appeals and a nullity suit have been met by the father; they total well in excess of £1m.
The father has never appeared in person before the English court seized of this or any other application issued by the mother. His professed life style is described to a limited degree in his statement dated 18 April 2010 but he gives no detail of his income, earning capacity, property and other financial resources, or of his needs, obligations or responsibilities. Rather, his leading counsel indicated that he could afford any order the court might make, subject to his arguments as to reasonableness.
SUBMISSIONS
As to the question posed in paragraph 5(i) above, it is argued on behalf of the appellant that the millionaire's defence has no place in Schedule 1 applications, drawing an analogy with its enforced demise in the majority of matrimonial financial dispute applications between divorcing couples following the cases of White v White [2006] 1 AC 618 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. Reliance is placed upon PG v TW (No 2) (Child: Financial Provision) [2014] 1 FLR 923 at paragraphs 57 and 58, in which HHJ Horowitz QC sitting as a judge of the High Court determined that:
" Nor in my judgment can [the millionaire's defence] be properly applied to the schedule which (a) requires information to be provided and (b) obliges me to have some regard to avoiding too gross a disparity between the standard of life of the father —[and Z]"
In so far as Moor J preserved the 'defence' in cases that do "not involve the principle of sharing the marital assets" in AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam), [2014] 2 FLR, 251 at paragraph 30, the appellant highlights the necessity nevertheless to give "a broad outline of wealth to know whether the court is dealing with a case involving millions of pounds, tens of millions, hundreds of millions or even billions of pounds".
In respect of the question in paragraph 5(ii), the appellant relies upon the judgment of Thorpe J (as he then was) in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR, 45 at paragraph 50 to the effect that:
"it is important as a matter of principle that the court should endeavour to determine reasonableness according to the standards of the ultra-rich and to avoid confining them by the application of scales that would seem generous to ordinary people".
This authority is said to establish the...
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