Re P (Child: Financial provision)
| Jurisdiction | England & Wales |
| Judgment Date | 24 June 2003 |
| Neutral Citation | [2003] EWCA Civ 837 |
| Docket Number | B1/2002/2653 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2003 |
[2003] EWCA Civ 837
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICEFAMILY DIVISION
(HIS HONOUR JUDGE BRUNNINGSitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand,
London WC2A 2LL
Lord Justice Thorpe
Lord Justice May and
Mr Justice Bodey
B1/2002/2653
BARRY SINGLETON QC and HOWARD SHAW (instructed by Lloyd Platt & Co of London N3 3LF) appeared for the appellant mother.
JUDITH PARKER QC and JONATHAN TOD (instructed by Cawdery Kaye Fireman Taylor of London NW3 1QA) appeared for the respondent father
THORPE LJ:
The appellant, GP is 28 years of age. The respondent VT is 46 years of age. They met in 1995. The appellant comes from an affluent English family based in Berkshire. There she spent her childhood being brought up with her brother and sister by her parents aided by a nanny. She left school at the age of 18 and almost immediately married. Her parents helped the young couple in the purchase of a comparatively modest first home. When the marriage broke down two years later her parents purchased the property, thus effectively financing the settlement between the young couple. The appellant has never had a career, although she has intermittently earned modestly in the interior decorating trade.
By contrast the respondent comes from an Iranian-Jewish family. In 1979 he took refuge in London. He is an immensely successful international businessman who the judge said had described himself in his evidence as fabulously rich and who conceded, in the words of Judge Brunning in the judgment under appeal:
"… that he could without financial embarrassment raise and pay any sum which the court may order … he is in a position he says to pay a lump sum in excess of £10M if ordered to do so."
It seems that he has at the same time a flamboyant lifestyle. He is well known in the fashionable nightclubs and he has many women in his life. It was in this milieu that he first met the appellant in 1995. They soon commenced a sexual relationship which continued intermittently for approximately four years. Towards its close the appellant conceived and on 14 July 2000 their daughter, L, was born. Hereafter I refer to the appellant and the respondent respectively as the mother and the father.
The father has not been married and L is his only child. His principal home was described by Judge Brunning as 'a large house in Central London, valued at well over £10M'. He also owns a house in South Africa. He maintains a large staff of assistants, representatives and advisors to whom he delegates tasks and responsibilities that others might regard as personal. In addition he employs a domestic staff including drivers and bodyguards.
The father's family are also London based. His parents live in Battersea. His brother and business associate, who is also unmarried, lives in Kensington. His sister, however, is married and has recently had a baby. Her home is in Regents Park. Unfortunately the attitude of the father and his family to L is to date ambivalent. Since her birth he has seen her infrequently. Although he has made financial contributions, he has been content for the main provision to be made by the mother's father.
On 13 March 2001 the mother issued her application for financial provision for L under section 15 and Schedule 1 of the Children Act 1989. At about the same time she initiated an assessment under the Child Support Act 1991. The Children Act 2001ication was transferred to the High Court in August 2001 and eventually came on for hearing on 14 October 2002. The first assessment under the Child Support Act was issued on 20 August 2001 in the sum of approximately £115 per week. The mother appealed this assessment, the appeal was heard on 8 July 2002 and the decision letter of 11 September 2002 substituted the higher figure of £152.43 per week effective from 20 August 2001. These assessments under the Child Support Acts appear to be absurd given that the father was voluntarily paying £1,200 per month with effect from August 2001. However the complex inter-relationship between the Child Support Acts and the judicial powers to make financial orders for children prevent the making of a judicial order until either a parental agreement is in place or an administrative assessment has been made. In the present case, there being no agreement between the parents, an administrative assessment was a necessary gateway to a judicial determination.
It is in my view regrettable that on Monday 14 October 2002 there was no Family Division judge available to take the mother's application. Given the facts and the issues the application cried out for trial by a Family Division judge with expertise in related claims brought under the Matrimonial Causes Act 1973. Indeed the reported cases at first instance on Schedule I claims have always in the past been so listed. However the function of the Family Division has become dependent on the support of senior circuit judges who are prepared to volunteer for a stint in London. Judge Brunning is the designated civil judge in Nottingham and has very great experience in proceedings under the Children Act 1989.
The case lasted three days after which the judge reserved, handing down his judgment on 28 November in Nottingham. On that occasion he heard further submissions on consequential issues, upon which he then ruled. The judgment as subsequently approved includes those consequential rulings, including the rejection of the mother's application for permission to appeal. However he ordered a stay pending determination of any appellate proceedings in the event of the mother renewing her application to this court. Her application to the Court of Appeal was received on 12 December 2002 and permission was granted on paper on 20 March 2003. In the interim the order to reflect the judgment below was perfected on 14 January 2003.
I turn now to record the outcome of the trial and the shape of the judgment below. At the outset of his judgment Judge Brunning recorded the mother's targets as follows:
"(a) A lump sum to provide a house or flat in Central London in the price range of £1.2M —£2.3M.
(b) A lump sum to furnish the property in the sum of £135,000.
(c) A top of the range Range Rover at £55,000, to be replaced every three or four years.
(d) An education fund of £700,000 to meet nursery, school and university costs.
(e) Periodical payments and a caring allowance in the total sum of approximately £170,000 per annum."
Later in the judgment he recorded the father's proposal:
"He has put forward, on advice, proposals which he asserts would enable L to live comfortably in a well-furnished house worth £350,000; be educated privately at good schools; and enjoy a good standard of living on periodical payments of £25,000, together with a car."
Now I record the judge's solution. He allowed £450,000 exclusive of costs of purchase for the house and £30,000 for its furnishings. He ordered £20,000 for a car on the basis that it would be replaced at the father's expense every four years. He accepted the father's undertaking to meet the costs of L's education, rejecting the mother's application for security. He set the rate of periodical payments at £35,360 per annum.
In his rulings at the hand down hearing he decreed of his own motion and without submissions that upon L's seventh birthday the periodical payments order should be reduced by '£9,333 and indexation relief thereon'. He said that periodical payments should cease on completion of L's secondary rather than her tertiary education. Finally he awarded an additional £7,500 to compensate the mother for the shortfall between 13 March 2001 and the implementation of the order.
How were these conclusions reasoned? In respect of the fund for a home he balanced the mother's desire to live in a fashionable area of London against the father's submission that she should live in Berkshire or in a London suburb. He looked at predictable bundles of agents particulars, the mother's illustrating desirable and sometimes substantial properties costing between £1M and £2.3M, the father's illustrating decidedly less desirable properties costing between £250,000 and £330,000. His decision was expressed thus:
"I am satisfied that if P chose to live in London or Berkshire, property which was wholly suitable for L's requirements could be purchased for the sum of £450,000. It would obviously be a more commodious property in Berkshire … The sum of £450,000 would give P ample choice suggested by T, relying upon general impressions of price levels in the London area and the Home Counties and assisted by press property reports and national surveys of house prices which are frequently published."
In relation to the furnishing fund, the mother relied on a detailed quotation from Chaplins amounting to £130,000 whilst the father proffered a rival hypothesis from John Lewis in the sum of £22,000. The judge plumped for £30,000 saying that Chaplins 'represents the top end of the furnishing business' and that 'furnishings of good quality and necessary white goods could be purchased for a lump sum of £30,000'. I need not record the judge's reasoning for his motorcar allowance or for his rejection of the mother's claim for security for school fees since those issues were not pursued when the mother's counsel filed their skeleton argument.
The reduction of periodical payments at L's seventh birthday was explained by the judge as follows:
"In my judgment Nanny Services for two to three days per week are reasonably required for L until that time. However I have to look at things in terms...
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