Re N (A Child) (Payments for Benefit of Child)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Year | 2009 |
| Court | Family Division |
Financial provision – Child – Capital Provision – Majority – Father ordered to pay mother sum to purchase property to house herself and child until child aged 21 or completed tertiary education – Father seeking amendment of order – Whether district judge erring in making order expire when child aged 21 instead of 18 – Children Act 1989, Sch 1.
The mother and father were the parents of a child born in March 2001. Following their separation in 2002, the district judge dismissed the father’s application for residence, granting such an order in favour of the mother. On 10 May 2005, in the father’s absence, it was further ordered, inter alia, that he should pay to the mother, by 27 July, the sum of £220,000 which the mother should use to purchase a property to house herself and the child until the child reached the age of 21 or completed tertiary education, whichever was the later. The father appealed against that order and a direction was made that, upon condition that he paid security for the mother’s costs, his appeal be allowed and the application be remitted to the district judge for re-hearing. The district judge’s order became immediately binding and enforceable against the father on 20 January 2006 when he failed to make the payment as directed. On 15 June 2007, the father issued an application to amend the order, contending that amendment was possible without recourse to appeal. He submitted that the normal order made under Sch 1 to the Children Act 1989 in such cases was a settlement until the age of 18 or the end of tertiary education. Issues arose as to whether (i) the district judge had erred in providing for a settlement until the child was aged 21 or until the completion of his tertiary education, and (ii) there was any jurisdictional bar to the court amending the order.
Held – (1) ‘Special’ or ‘exceptional’ cases apart, ‘dependency’ ceased at majority. Accordingly, ‘special’ or ‘exceptional’ cases apart, any capital settlement under Sch 1 of the 1989 Act had to be expressed as terminating upon the child attaining the age of 18 or completing tertiary education. Although Sch 1 did not in terms preclude a settlement extending into adult years, Parliament had been careful in paras 2, 3 and 6 of Sch 1 to define narrow circumstances in which orders for financial provision could be made to extend beyond a child’s 18th birthday or, indeed, be made on application by a person who had already reached the age of 18. There was also a wider
context. By s 1(1) of the Family Law Reform Act 1969, Parliament had reduced the age of majority from 21 to 18. That policy decision had to be respected and was not to be whittled away by judges unless Parliament had elsewhere legislated to that effect. Whatever the position in relation to child maintenance (periodical payments) after the age of 18 might be, there was, in the context of capital provision, no justification for disregarding either the general statutory principle that a child attained majority at the age of 18, or the more specific statutory principles that were to be found in Sch 1. The evidence had, therefore, to establish the ‘special’ or ‘exceptional’ circumstances relied upon if the court was to be justified in making provision beyond the end of dependency (meaning majority) or education. It was not enough simply to have regard to the fact, if fact it was, that increasing numbers of legally emancipated adults were continuing to live at home rent-free with their parents, or that, absent such special circumstances as disability, the particular child was likely for whatever reason to go on living after majority with one parent or the other. It was not for the courts to impose legally binding obligations on unwilling parents merely because some parents chose voluntarily to assume a financial burden which the law did not, generally speaking, impose upon the parent of an adult child with legal capacity. It followed that in the instant case the district judge had erred in directing that the property was to be settled until the child reached the age of 21. She had not considered whether the appropriate age was 18 or 21, nor had she described the case as having any ‘special’ or ‘exceptional’ features, or referred in her judgment to any circumstance that could be capable of amounting in law to something ‘special’ or ‘exceptional’.
(2) Had the father been seeking a general re-opening of the matters decided by the district judge, in the circumstances the court would unhesitatingly have refused to exercise discretion in his favour. Having chosen to simply stay away from the hearing, having elected to pursue a remedy by way of appeal, and having then chosen not to satisfy the condition imposed as the price to be paid for achieving his objective, the court would be entitled to say that there had to be an end to the litigation. That was not, however, what the father was seeking; wisely, he had chosen to proceed on a much narrower front. It was possible and appropriate to exercise discretion in his favour because (a) he had confined his endeavour to a single ground of challenge and (b) he had demonstrated that on that point the district judge had been plainly wrong. It would not be just or right to allow the error to remain uncorrected. Accordingly, the age ‘18’ would be substituted for ‘21’ in the order.
Cases referred to in judgmentA v A (Financial Provision for Child)[1995] 1 FCR 309, [1994] 1 FLR 657.
Barclays Bank v Quistclose Investments Ltd [1968] 3 All ER 651, [1970] AC 567, [1968] 3 WLR 1097, HL.
C (Financial Provision), Re [2007] 2 FLR 13.
Chamberlain v Chamberlain [1974] 1 All ER 33, [1973] 1 WLR 1557, CA.
Egan v Motor Services (Bath) Ltd[2007] EWCA Civ 1002, [2008] 1 All ER 1156n, [2008] 1 FLR 1346, [2008] 1 WLR 1589.
J v C (child: financial provision)[1998] 3 FCR 79, [1999] 1 FLR 152.
Kiely v Kiely [1988] 1 FLR 248, CA.
Lancashire Loans Ltd v Black [1934] 1 KB 380, [1933] All ER Rep 201, CA.
Lilford (Lord) v Glynn [1979] 1 All ER 441, [1979] 1 WLR 78, CA.
M (children) (fact-finding hearing: burden of proof), Re[2008] EWCA Civ 1261, [2008] All ER (D) 187 (Nov), (2008) Times, 16 December.
Masefield v Alexander[1995] 2 FCR 663, [1995] 1 FLR 100, CA.
N (a child) (McKenzie friends: rights of audience), Re[2008] EWHC 2042 (Fam), [2008] 3 FCR 642, [2008] 2 FLR 1899, [2008] 1 WLR 2743.
P (a child) (financial provision), Re[2003] EWCA Civ 837, [2003] 2 FCR 481, [2003] 2 FLR 865.
Pauling’s Settlement Trusts, Re, Younghusband v Coutts & Co [1963] 3 All ER 1, [1964] Ch 303, [1963] 3 WLR 742, CA.
Phillips v Peace[1996] 2 FCR 237, [2005] 2 All ER 752, [1996] 2 FLR 230.
R (Child), Re (21 October 1999, unreported), CA.
S (Unmarried Parents: Financial Provisions), Re[2006] EWCA Civ 479, [2006] 2 FLR 950.
T (a child: contact), Re[2002] EWCA Civ 1736, [2003] 1 FCR 303, [2003] 1 FLR 531.
T v S (Financial Provision for Children)[1994] 1 FCR 743, [1994] 2 FLR 883.
ApplicationThe father, A, applied to amend an order of District Judge Roberts dated 10 May 2005 which required him to pay certain sums to the mother, G, for the benefit of the child, N, until N reached 21 years of age or completed tertiary education, whichever was the later. The facts are set out in the judgment.
On 12 November, Michael Cronshaw for the mother.
The father appeared in person assisted by his McKenzie friend Dr Michael Pelling.
On 24 July 2008, the mother appeared in person assisted by her McKenzie friend Mr David Holden.
Dr Michael Pelling for the father.
Munby J.[1] These are proceedings brought by a mother pursuant to s 15 of and Sch 1 to the Children Act 1989 (the 1989 Act). The proceedings relate to N, who was born in March 2001. His parents were never married.
The forensic background[2] In order to understand exactly what jurisdictions I am being invited to exercise and the nature of the matters which are in controversy it is necessary to sketch out the somewhat unusual forensic background.
[3] On 10 May 2005 District Judge Roberts, sitting in the Principal Registry of the Family Division, made an order which so far as material for present purposes was in the following terms:
‘1 The Father shall pay to the Mother by 29th July 2005 for the benefit of the Child N the sum of £20,000 absolutely.
2 The Father shall settle on the Mother by 27th July 2005 for the benefit of the Child the sum of £220,000 which the Mother shall use to purchase a property to house herself and N until N reaches the age of 21 or completes tertiary education whichever is the later. The Father’s interest in the property purchased shall be whatever percentage of the gross purchase price the sum of £220,000 represents.’
The mother, in a statement dated 23 November 2007, has indicated her intention to contribute to the purchase of the property by raising money on mortgage.
[4] That order was made in the absence of the father in circumstances to which I will return in due course.
[5] The father sought to appeal against the order. On 9 August 2005 Baron J stayed the district judge’s order until 2 September 2005. Thereafter the stay was informally extended by agreement between the parties. The appeal came on for hearing before Sumner J on 8 December 2005. By para 3 of the order he made on 9 December 2005 Sumner J directed so far as material that:
‘Upon condition that the Appellant Father pays the sum of £38,000 to the Respondent Mother’s solicitors by 20th January 2006 as security for the Respondent Mother’s costs of [certain proceedings] … the Appellant [sic] appeal against order of District Judge Roberts … be allowed and the application remitted to be re-heard by District Judge Roberts.’
Paragraph 4 of Sumner J’s order provided that:
‘If the father does not pay the £38,000 to the Respondent Mother’s solicitors as provided for in paragraph 3 above, his appeal against the order of District Judge Roberts … shall be dismissed.’
[6] Save that in December 2006 he gave the mother a cheque for £20,000, which he then stopped before it had...
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