Re S (A Child) (Unmarried Parents: Financial Provision)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE LAWS,LADY JUSTICE HALLETT |
| Judgment Date | 15 March 2006 |
| Neutral Citation | [2006] EWCA Civ 479 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 March 2006 |
| Docket Number | B4/2006/0289, B4/2004/2280 |
[2006] EWCA Civ 479
IN THE SUPREME COURT OF JUDICAT
IN THE COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH CO
FAMILY DIVIS
(MRS JUSTICE HOGG & MR JUSTICE BENNE
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Laws
Lady Justice Hallett
B4/2006/0289, B4/2004/2280
MR S THRO (instructed by Messrs Care & Desai of London W1H 7AL) appeared on behalf of the Appellant
MR J POSNANSKY QC (instructed by Messrs Levison Meltzer Pigott of LONDON EC4M 7JU) appeared on behalf of the Respondent
Judgement
1. On 13 August 2004 Bennett J delivered a judgment which was not handed down, but it was briefly reserved, and Mr Posnansky who appeared below tells us that it was effectively a spoken judgment delivered from written notes. He was deciding a claim brought under section 15 of the Children Act 1989 by the mother for full financial relief for her daughter. The daughter had her ninth birthday last Sunday. It follows from that brief introduction that the parents were never married. They enjoyed a relatively brief relationship between 1995 and 1999. The case before the judge had been very hard fought. Mr Posnansky QC had appeared for the father and Mr Tager QC for the mother. One of Mr Tager's principal tasks and objectives was to destroy the truth and comprehensive accuracy of the father's financial disclosure; and in that task he fully succeeded, the judge holding that the father had consistently and over an extensive period given deliberately false evidence as to his financial circumstances.
The judge made some assessment of the father's true worth at a figure of about £4 million net. With respect to the judge, that does not seem to me to be much more than the best assessment he could make on the information available to him. What seems to me unusual is the complete absence of professional valuation of most of the plusses on the balance sheet compiled to demonstrate net worth. There seems to be even more uncertainty surrounding the extent of the income that the husband had enjoyed in past years, and perhaps as to the income he was likely to enjoy in future years. For me, what is perhaps the most secure foundation on that aspect of the court's responsibility to investigate and determine is an exchange between Mr Tager and the father in the course of his cross-examination when, at the conclusion of a string of questions from Mr Tager, the father gave this answer:
"Question: Would it be fair to say that you would have no difficulty in finding [£2 million in all as a package] with that sort of security?
"Answer: Yes, so long as my employment is stable I think that is right."
It was not necessary for the judge to make a critical assessment of the mother's past conduct, because that had been accomplished by other judges in a number of prior hearings related to contact and relocation applications brought by one or other of the parties. The judge cited and adopted highly critical assessments that had been made by Hogg J, who had in the main been the judge of the division before whom disputes had been listed. The essential critical finding was that the mother was highly egocentric and manipulative; reluctant to accept fault or blame; rejecting criticism and blaming others (often the father) in order to justify her actions. That, I think, gives a fair flavour of no less than five separate citations from past judgments.
The only area of Bennett J's discretionary conclusion that we review is the housing fund. It was common ground that in order to satisfy the daughter's future needs her father would create a settlement of a substantial capital sum which would enable the trustees to purchase either a freehold or a long lease (of at least 100 years' duration) for the remainder of the daughter's minority; the fund to revert to the settlor after what then would have been a period of about 11 years. The key question for the judge was the determination of the capital sum to fund the settlement. He explained himself comparatively succinctly in paragraphs 58 to 64 of his judgment. He had to decide between a case presented for the mother which was essentially focussed on Knightsbridge, where she and the daughter were then living and where the school that the daughter attends is also situated. Mr Tager selected four properties from a wider bunch. They were on the market at figures ranging between £1.6 million and £2 million.
For the father, it was asserted by Mr Posnansky that there was no reason why mother and daughter should not relocate to Parsons Green or Fulham and particulars were produced to illustrate that relatively modest houses could be bought in that area for £500,000 to £550,000. The judge almost inevitably reached a decision somewhere between these two highly polarised presentations. He said, in his concluding sentences in this section of the judgment:
"In my judgment it would be fair and just for the father to provide a maximum sum of £800,000 to cover (a) survey fees; (b) purchase price; (c) Stamp Duty; and (d) conveyancing and trust fees. In my judgment the mother's claim for accommodation in the range of £1.6 million to £2 million is grossly excessive."
It was subsequently established that the comprehensive figure of £800,000 would enable the mother to offer a contract at £760,000, the remaining £40,000 being required to cover survey, stamp duty, conveyancing and trust fees.
An application for permission to appeal that decision was put before me on paper and I provisionally refused, drawing attention to the judge's highly critical findings of the mother. I posed the question: where is the point of law or principle on which a prospective appeal might focus? On that basis I provisionally refused. That resulted in a request for oral hearing which took place on 19 April 2005, the mother's case being attractively presented by Mr Simeon Thrower. The decision of the court recognised the force of Mr Thrower's submission that the judge might have fallen into error of principle in affectingly treating the investment fund in the reported case of Re P (Child) (Financial Provision] EWCA Civ 837 as being comparable, and moving to a relatively small reduction from £1 million to £800,000 on the grounds of the disparity between the fortune of the father in Re P and the fortune of the father in this case.
Accordingly, we granted permission for an appeal limited to the challenge to the quantum of the investment fund. Mr Thrower has presented his appeal this morning with comparable moderation and attraction, and in addition to the point that succeeded for him on 19 April he has advanced a number of additional points under what he has neatly labelled the four S's. The four S's are security, stress, schooling and stability. As to security, he says that the child deserves to be close to her school and her friends. She has always lived in the Knightsbridge area and to move her from familiar sights and sounds, substituting the unknown for the familiar, would be an unnecessary risk of harm to her wellbeing. As to stress, Mr Thrower emphasises that the mother has had a great many trials and tribulations with her health over the last few years. Stress to the mother is likely to impact on the child indirectly, and to consign the family to Parsons Green would involve stressful school journeys at each end of the day for mother and daughter.
As to schooling, Mr Thrower sought to criticise the judge for making an unqualified finding that in Michaelmas 2008, the daughter would be moving to one of the prestigious girls' schools in West London, in which event a Fulham or Parsons Green home would be no disadvantage. He suggested that there was not sufficient evidential basis for that finding. Stability is the last S, perhaps only another way of putting security. He says it is very important, given the extent to which the daughter's early life has been unsettled by the disputes between her parents; that she should now have a period of release from wandering. She is at an age where she simply would not understand the need for change and she would be puzzled by the difference in living standards between the home of her father and the home of her mother. That led Mr Thrower to add in a criticism of the judge for having ignored the disparity between the two homes that would result from the implementation...
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