T v S (Financial Provision for Children)
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1993 |
| Court | Family Division |
JOHNSON, J
Children – financial provision – whether parent liable to support adult children in absence of special circumstances relating to the children.
Financial provision – children – whether parent liable to support children in absence of special circumstances relating to the children.
The parents who were not married, had five minor children. They lived in some considerable style with a house in the country and a flat in London. The father said he had been earning and spending about £300,000 a year. In 1989 the parents separated. The mother and children remained in the house; the father went to live in the flat.
Whilst he was living at the flat the father was found to be in possession of cocaine and was sentenced to a term of imprisonment.
Subsequently, the mother applied for financial provision for the children. Her application was heard in November 1992. The district judge found that the only financial resources available were a sum of about £74,000. The district judge ordered that £29,000 should be spent on discharging arrears of the children's school bills and £36,000 should be used to purchase a small property to house the mother and children. Under the order the property was to be held by trustees, with a power of sale postponed until the youngest child should attain the age of 21 or cease full-time secondary education, whichever should be the sooner. On that event the benefit of the property was to pass to the children.
The father appealed.
Held – allowing the appeal: By para 3 of Sch 1 to the Children Act 1989 an order for periodical payments for a child was limited in the first instance until the child's 17th birthday unless the court thought it right to specify a later date not beyond the child's 18th birthday. That limitation did not apply so long as the child was receiving instruction at an educational establishment or was undergoing training, or where there were special circumstances justifying making an order without complying with the statutory limitation. The objective of the statutory scheme contained in the Children Act 1989 was, in the ordinary case, to enable the court to make proper financial provision for children as children or dependants. Further, there might be special circumstances in which it was necessary for the court to make provision for children based upon their having a continuing need after they had left full-time education. The "special circumstances" referred to in para 3
of Sch 1 to the 1989 Act in relation to the duration of periodical payments did not relate to such matters as were found in the present case, namely, the father's failure to make an accurate disclosure of his means or his prospects or the difficulty, if not impossibility, of the mother or the children being able to establish his resources in the future. They related to the children: such, for example, as a physical or mental handicap. There were no special circumstances in the present case. As the parents were not married, the mother had no right to be supported by the father nor any right in herself to have even a roof over her head. Further, the children did not have any continuing claim upon the father after the youngest attained 21 or they had all ceased full-time education. The order of the district judge would therefore be modified so as to provide that the sale of the property be postponed until the youngest child attained the age of 21 or all the children had completed full-time education. Upon the trust for sale coming into effect, the property would revert to the father.
Statutory provisions referred to:Children Act 1989, s 15 and Sch 1 paras 3 and 4.
Matrimonial Causes Act 1972, ss 23 and 29.
Cases referred to in judgment:Allen v Allen [1974] 1 WLR 1171; [1974] 3 All ER 385.
Chamberlain v Chamberlain [1973] 1 WLR 1557; [1974] 1 All ER 33.
Griffiths v Griffiths [1984] Fam 70; [1984] 3 WLR 165; [1974] 2 All ER 626.
K v K (Property Transfer for Child)[1992] 2 FCR 253; [1992] 1 WLR 530; [1992] 2 All ER 727.
Kelly v Kelly [1988] 1 FLR 248.
Judith Parker, QC and Claire Jakens for the father.
Michael Horowitz, QC and Julian Christopher for the mother.
MR JUSTICE JOHNSON.This is an appeal against an order made by District Judge Plumstead on 27 November 1992. The order was made under the Provisions of s 15 of and Sch 1 to the Children Act 1989. Those provisions enable the court to make financial Provision for children, particularly in a case such as this, where the parents of the children were not married, so that the power of the court under the Matrimonial Causes Act 1973 is not available.
The five children concerned are now aged between 15 years and 7. They and their parents lived together in some considerable style, with a house in the country and a flat in London. The father told the district judge that he had been earning and spending at the rate of about £300,000 per year. His occupation was that of a commodity broker.
The relationship between the parents came into difficulties by the beginning of 1989. In May 1989 the mother and the children were living in the house in the country – the children attending private schools there. The father was living in the flat in London. The police came to his flat. They found in his Possession a quantity of cocaine and a sum of £75,000 concealed in a vacuum cleaner.
Criminal charges were preferred against him and he was sentenced to two years imprisonment.
Since then the mother and the children have continued to live together, the mother struggling to maintain herself and the children and, in particular, to maintain them at their private schools.
The father gave evidence before the district judge. She said this of him:
"He was an unsatisfactory witness. He is a man of obvious intelligence, not to say cunning. His evidence was characterized by vagueness, vacillation and imprecision. He has given no satisfactory explanation for large sums of money."
As to the financial resources available to the family, the district judge concluded...
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