S v C
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 05 August 2020 |
| Neutral Citation | [2020] EWHC 2127 (Fam) |
| Date | 05 August 2020 |
| Docket Number | Case No: BV15D15323 |
| Court | Family Division |
[2020] EWHC 2127 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: BV15D15323
Mr Edward Boydell (instructed by Miles Preston & Co) for the applicant
Mr Simon Webster QC (instructed by Stewarts Law) for the respondent
Hearing dates: 20, 21, 22 and 23 July 2020
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.
Introduction
This is an application by a former wife for a financial remedy order in respect of A who is the parties' only child. A was born in October 2013. She is 6 years old. The respondent to the application is her former husband. I propose to refer to the parties, respectively, as S and C. They have been divorced for four years and there are no remaining issues between them in relation to their financial claims against one another as spouses. Whilst it may have been a convenient shorthand to have referred to them as ‘the husband’ and ‘the wife’, it seems to me inappropriate in this case for reasons which will become apparent. Thus, in this judgment, ‘S’ is a reference to the applicant (former) wife and ‘C’ means the respondent (former) husband.
The issue for determination
This is an unusual application on its facts but the issue which has generated this hugely expensive litigation can be simply stated. It is this. With all matrimonial claims between them now settled, to what extent should this court exercise its jurisdiction under section 23 of the Matrimonial Causes Act 1973 so as to impose conditions on the release to the parties of a frozen fund of some £3.74 million? The provenance of that fund is the settlement / compromise of a negligence claim launched on behalf of their daughter, A, in 2016 at a time when the marriage had already broken down and the parties had been separated for a year.
The headline which needs to be emphasised at the outset is the enormous love and commitment which each of these parents has for their daughter and her future wellbeing. It is a matter of much sadness and regret to this court that this litigation (and the inability of these parents to find a solution for their daughter's benefit) has led to the complete breakdown of any last shreds of a co-parenting relationship. A currently spends time living with each of her parents in their homes and that is what will happen going forward long after this litigation has ended. As I listened to the evidence over the course of the last four days, it appeared to me that each looks after A during these periods in separate silos or bunkers in terms of her experience of life moving between their two homes. There is no effective communication between them in relation to her lived experience of daily life in those two homes and little, if any, knowledge or understanding of what each of these parents offers this precious child whilst she is residing in the care of the other.
For reasons which will become clear, there is no need for me to descend into the history of this marriage. This judgment and the reasons for my decision need little elaboration on that front. Each of S and C are now 50 years old. They were married to one another for some five years. They separated in 2015 and divorced the following year. A consent order regulating the financial consequences of their divorce was approved by the court in May 2016. That consent order gave effect to a clean break between them. At that time the litigation in respect of A was in prospect but the outcome was unknown. Proceedings in the Queen's Bench Division were issued at the end of September 2016, some four months after the matrimonial consent order was approved in the Central Family Court in London. A specific recital in that order records that they would continue to have joint conduct of the personal injury claim and that:
“any settlement or award made for the benefit of the child of the family shall only be invested and applied in a manner expressly agreed between the parties in writing in advance”.
Further,
“At the point when any settlement or award is made, the parties shall review all payments made by them for the benefit of the child of the family to consider whether such payments should be met from the settlement or award moving forward”.
The Kingsley Napley litigation concerning A
The parties instructed Kingsley Napley to act on their joint behalves in relation to the litigation concerning A. I have been provided with a separate e-bundle of documents which relate to those proceedings. That material underpins to a significant extent the narrative evidence which each has set out in their statements filed in support of the financial application which is at the centre of these proceedings.
The claim related to the antenatal care which was provided to S during her pregnancy by a consultant obstetrician (and in reality his professional negligence insurers). Shortly after her birth, A was diagnosed with a serious genetic chromosomal disorder. Her mother, S, had a significant history of chronic neck pain caused by degenerative changes in her spine. An earlier operation to remove a disc in October 2010, some months into the marriage, had not resolved the problem. She subsequently underwent a number of medical investigations including MRI, CT SPECT scans and x-rays and was prescribed a number of different medications. When S became pregnant in the early part of 2013, the parties voiced concerns to their consultant about the potential effects of these treatments and medications on their unborn child.
Following her birth in October 2013, the parties were informed that A had a chromosomal disorder. In the first few months of her life, she experienced a number of problems, some of which were addressed by early surgical intervention. The prognosis at that stage was that she was likely to experience significant developmental delay “with uncertain outcome but likely lifelong care needs”.
The claim which was subsequently issued in the Queen's Bench Division sought damages for the additional costs of bringing up a disabled child. It was framed in the context of a (the inaptly named) claim for ‘wrongful birth’ and was supported by a report from a renowned consultant clinical geneticist, Dr Reardon. Whilst acknowledging that it was far too early to be able to provide a reliable prognosis for A's condition and her associated needs, the claim was predicated on the basis that A's life expectancy was unlikely to be limited by her condition. Leading and junior counsel advised S and C throughout the litigation. Because A's parents were by then separated and living independent lives in separate households, C was included as a claimant because of the separate costs he was likely to incur when looking after A in his home.
It is clear from Dr Reardon's input during this period that most of A's medical needs going forward would be met within the NHS. He confirmed in an email that he did not envisage she would require additional private medical care. What would be required was assistance with physiotherapy, speech and language. In what I regard as an insightful observation, he said this:
“[A] does not need super duper care. She – and more importantly, her mother – need gentle oversight of a general nature by a kindly, rather than a highly attuned latter day paediatrician who will do every test known to man. I think the child needs no tests whatever but she – and her Mother, more so – need gentle supportive care which involves somebody giving this lady a bit of time and helping her come to terms with a life she never dreamed would befall her, and has.”
Negotiations proceeded with a view to resolving the claim. S and C were advised in relation to the likely quantum of the claim. With the prognosis for the future so unclear, much of that advice was based on “a rough valuation” and “a reasonable guess” on the part of their leading counsel. Clearly the cost of additional support with A's care was a central consideration. In addition it was acknowledged that there would be the costs of putting a secure roof over her head and the payment of ongoing therapies to assist her development. Alongside those considerations ran the ever-present risk of establishing liability in order to found the claim.
Settlement was reached in January 2019 when the insurers agreed to pay a lump sum of £5 million to S and C. It is clear that this sum was not based on any specific calculations or projections of A's future needs. Following settlement, an issue arose as to the beneficial ownership of those funds and the extent to which either or both of A's parents should have control over the investment and use of those funds. They were advised by their legal team that the fact that damages had been quantified by broad reference to the ongoing future needs of a child did not mean that those damages were for the benefit of that child who was not a party to the proceedings. As a matter of law, A had no interest in, or entitlement to, the damages. Her parents were the claimants and their claim had proceeded on the basis that they were likely to incur additional costs over a number of years in caring for a child whose future needs were likely to be greater than those of child who had not been born with a chromosomal imbalance.
In order to deal with the impasse in relation to the funds it was holding, Kingsley Napley issued an application whereby the court was asked to determine the beneficial ownership of the award of £5 million. Following AN agreement that each of these parents had an entitlement to 50% of the frozen funds, and S's current claim having been issued on 29 July 2019, an order was made authorising the...
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