G v S
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 365 (Fam) |
| Docket Number | Case No: ZC15P04036 |
| Court | Family Division |
| Date | 24 February 2017 |
[2017] EWHC 365 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: ZC15P04036
Mr R Harrison QC (instructed by Hughes Fowler Carruthers) for the Applicant
Ms D Bangay QC (instructed by Clintons) for the Respondent
Hearing dates: 31 st January & 8 th February 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This application, pursuant to schedule 1 of the Children Act 1989, was listed before me on the 31 st January 2017 for a pre trial review. I had anticipated that the order would be finalised on that day, notwithstanding that it had been listed for a 4 day final hearing to commence on 3 rd April 2017. The parties had, on the 7 th December 2016 substantially settled the case and a document entitled Heads of Agreement (HoA) was signed by them and their very experienced solicitors.
Some progress was made towards finalising the order on the 31 st January 2017 but, for various reasons, with which I need not burden this judgment, the case could not conclude. Accordingly, rather than leaving the case listed, I reduced the time estimate and listed the case today for final resolution.
BACKGROUND
The parties met in 2013, the mother (M) contends that they became engaged to be married (this is disputed by the father). On the 23 rd June 2014 M gave birth to a daughter, L (now 2 1/2 years). In 2015 the relationship ended. In addition to the Schedule 1 proceedings there are private law proceedings in the Central Family Court. The litigation bristles with acrimony.
M, now aged 40, is a Swedish national. She lived in Chelsea between 2010 and 2013 and has remained there since the birth of the child in 2014. She has worked as a pilot for BA since 2001, flying long-haul since 2007. She is based at Heathrow. Since the birth of the child she has been working part-time. In her Form E she estimated earnings of c. £35,000pa net. DJ Gibbons recorded, in September 2016, that M had savings of £76,000 and a half share in a modest property in Sweden. Her flight rosters require her to work away overnight and also for days at a time.
Father (F), who is now 38 years, is a US national, of Swedish origin, who lives in Switzerland. He is described by Mr Harrison QC, as a 'scion of one of the best-known and wealthiest families in Sweden'. Within these proceedings he put forward what has become known as a ' millionaire's defence', i.e. he accepts that he can meet any order that the court might make. Accordingly, he has provided minimal disclosure. He does not work; he spends much of his time pursuing his interest in competitive sailing.
F is the sole beneficiary of two very substantial trusts. In the year to 5.4.15 he received income distributions net of tax of CHF 3,549,097.84 (approx. £2.75m net at £1: CHF 1.29). For the avoidance of ambiguity, this represents what was in fact distributed to F. No disclosure has been provided, or requested, concerning the trusts' assets or their total income. The Trustees have provided two letters, filed within these proceedings. They are described, by Mr Harrison, as 'carefully written'. The effect of them is to indicate that no distribution of principle are contemplated at present. M asserts that F and his siblings also received a substantial inheritance from their late father. M considers this to be in the region of £350 million.
F is said to enjoy a 'jet-set lifestyle'. He travels widely but rents two properties in Switzerland which land, Ms Bangay QC tells me, he regards as home.
Finally, there is a Trust established by his late brother, who died only very recently, which is for the benefit of nephews and nieces including L.
The private law proceedings are plainly rancorous. I am aware that a s47 report was requested of and prepared by London Borough of Kensington and Chelsea. I have been told that in accordance with its recommendations L lives with M and spends holiday time with F in Switzerland and term time weekends, occasionally, in both England and Switzerland. Notwithstanding these established arrangements, a hearing has been listed in July 2017 to consider the time which L should spend with F on a longer term basis and an application to change her surname. Within the s8 proceedings F indicated he was contemplating a change of residence and an application for leave to remove the child to Switzerland. On the 31 st July, within these proceedings, F apparently indicated that he no longer intended to pursue those applications. This was not confirmed at this hearing, although it arguably had relevance to the Legal Services Order made by District Judge Gibbons on the 9 th September 2016, to which I will return.
On the 7 th December 2016 the parties attended a round table meeting which resulted in the HoA which I have referred to. The parties agreed that they should be bound by the principles set out in Xydhias v Xydhias [1999] 1 FLR 683. It is this document, inevitably, that has been the focus of dispute at this hearing. Mr Harrison summarises its key provisions thus:
(i) Schedule 1 housing fund of £2.1m;
(ii) £50,000 'kitting out' fund;
(iii) £50,000 for a car (to be replaced every 4 years);
(iv) Maintenance of £160,000 pa (£87k general; £73k nannies); CPI linked;
(v) Nursery and school fees;
(vi) Private health cover;
(vii) F to pay £41,000 'historic' legal fees upon return of a car in Sweden
Ms Bangay agrees that this summary accurately reflects the agreement, so do I. However, notwithstanding that these matters had been substantially and sensibly agreed, there have been a raft of issues for me to determine at this hearing.
The first issue is whether the Respondent has provided the Applicant with sufficient assurances as to security for his maintenance obligations in the event of his death. To this end I have seen a letter from Schulte, Roth and Zable, the New York lawyers with responsibility for the Trust. The most significant sentence of this provides: "in the event of [F]'s death, his daughter L will become the income beneficiary of the Trust". I consider these assurances are adequate and need not detain me further.
The second issue is whether M intends to continue living in London. The draft order restricts the possibility of a move by incorporating a clause into the Schedule 1 order which prevents M from obtaining a replacement property outside England and Wales, in any circumstances, before L completes her primary education. The original aspiration on behalf of F was to prevent such a move for the duration of L's childhood, extending to the completion of full time tertiary education. His changed position came about only as a response to my suggestion, hoping to facilitate compromise, during the course of exchanges with counsel on 31 st January.
The correct approach, Ms Bangay contends is to concentrate on what had actually been agreed in the HoA. Whilst the terms are not to be construed by analogy to contractual principles, nor the Court's role reduced to that of a rubber stamp, there was, she submitted, an obvious interest in curbing excessive adversariality. The general principle ought not to be lost sight of i.e. HoA signed by the parties, represented by competent and experienced solicitors should usually establish a consensus to which they should be bound. F's willingness to compromise, Ms Bangay submitted, did not weaken this 'constructive' approach, it merely signalled F's preparedness to compromise. By way of support, she referred me to the well known judgment of Thorpe LJ in Xydhias (supra), particularly emphasising the following passage:
"There are perhaps two lessons for specialist practitioners. The first is to distinguish clearly between the two stages of negotiation. The first stage is to establish what the applicant is to receive. That should be expressed in simple terms in heads of agreement signed by both counsel and their clients. All who appeared with or against the late Mr Jackson QC will remember that was for him a cardinal rule. The formality marks the conclusion of that part of the negotiating process which the parties dominate. The subsequent task of expressing the heads of agreement in the language of an order of the court is one to which they ordinarily make little contribution and, although it generally precedes the presentation of the agreement to the judge for his consideration, it can as well be done after the judge has determined the issue. The signature...
To continue reading
Request your trial