The Matter of : K (A Minor)

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Thursday, 23rd March 1995

I will let Waite LJ give judgment first.

Until the coming into force on 1st January 1989 of the relevant provisions of the Family Law Reform Act 1987, the mother of an illegitimate child could only obtain maintenance for the child from the father in affiliation proceedings. Such orders were restricted by section 4 of the Affiliation Proceedings Act 1957 to a weekly sum for the maintenance and the education of the child, and a single sum representing reimbursement of the expenses incidental to the child's birth.

The 1987 Act repealed affiliation proceedings altogether and introduced a statutory power to award maintenance to all children, whether or not legitimate. The same power was re-enacted by section 15 and the first schedule to the Children Act 1989. It is a jurisdiction which exists independently of, and is to be exercised in parallel with, the matrimonial jurisdiction in the High Court and County Courts under the Matrimonial Causes Act 1973 and the Domestic Proceedings and Magistrates Courts Act 1978, (see Hershman and Macfarlane at paragraph C page 601-605).

The jurisdiction includes power to award, in addition to periodic payments, a lump sum order against the father. That is subject, when the jurisdiction is being exercised by Magistrates, to a ceiling of £1,000. Lump sum orders may be directed to be paid by instalments.

This appeal arises from a dispute between unmarried parents, after separation, as to the future maintenance of the child of their former association. Both were wage earners. The father had no capital assets. The Magistrates made a mixed award against the father in favour of the child which included both periodic maintenance and a lump sum of £500.

On the father's appeal to the High Court Hollis J, on 20th December 1993, discharged the order, substituting an award of periodic maintenance only. He did so on the ground inter alia that the lump sum element in the award had been both erroneous in principle and plainly wrong in result. He said (according to the agreed note of his reasons):

"It is clear in principle that no lump sum can be made unless the father has capital to pay for such lump sum or means to raise such capital. There is no evidence that the father had such means or to raise money. There was no finding on this point by the Magistrates and not suggested in cross-examination or otherwise. Although lump sums may be paid by installments, I have never heard of them being paid out of income. Therefore, the lump sum is set aside as it is plainly wrong."

That ruling is accepted today by the father's counsel, Mr Verdan to have amounted to a ruling of law that a lump sum order cannot be made otherwise than against a party with a capital base from which to fund it. It is a ruling which is now challenged in this Court, where the mother contends on appeal that the lump sum instalments award was duly made by the Magistrates in the proper exercise of their discretion.

THE LAW. Section 15 of the Children Act 1989 directs financial provision for children in accordance with Schedule 1 which provides, so far as relevant, as follows:

"1(1) on an application made by a parent or guardian of a child or by any person in whose favour a residence order is enforced with respect to a child, the court may",

[and I leave out proceedings in the High Court]:

"(b) in the case of an application to a Magistrates Court make one or both of the orders mentioned in paragraphs (a) and (c) of subparagraph 2.

2(a) an order requiring either or both parents of a child—

(i) to make to the applicant for the benefits of the child or—

(ii) to make to the child himself such periodical payments for such term that may be specified in the order.

(c) an order requiring either or both parents of a child—

(i) to pay to the applicant for the benefit of the child or—

(ii) to pay to the child himself such lump sum as may be so specified.

(3) the powers conferred by this paragraph may be exercised at any time.

(4) an order under subparagraph 2(a) or (b) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order".

Subparagraphs (5) and (6) enable the antecedent powers to be exercised on repeated subsequent occasions, and permit appropriate orders on making varying or discharging a residence order even though no formal application has been made for that purpose.

Paragraph 4 lays down the matters to which the justices in a Magistrates' Court case are required to have regard. They include all the circumstances of the case and a series of other matters which are very familiar in this jurisdiction because they apply also in the High Court and County Court, and I need not repeat them.

Paragraph 5 is headed "Provisions Relating to Lump Sums" and reads as follows:

"5(1) without prejudice to the generality of paragraph 1 an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses—

(a) incurred in connection with the birth of the child or in maintaining the child or

(b) reasonably incurred before the making of the order, to be met.

(2) the amount of any lump sum required to be paid by an order made by a Magistrates Court under paragraph 1 or 2 shall not exceed £1,000 or such larger amount as the Secretary of State may from time to time by order fix for the purposes of this subparagraph.

(3) the power of the court under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments by the parent shall include power to make an order under that provision for the payment of a lump sum by that parent".

Subparagraph (4) is designed to see that lump sums, when aggregated, do not exceed the permitted ceiling. Subparagraph (5) enables provision to be made for a lump sum to be paid by instalments, which subparagraph (6) allows to be the subject itself of future variation.

These provisions correspond closely with the matrimonial jurisdiction under sections 23-25 of the Matrimonial Causes Act 1973 and the Domestic Proceedings and Magistrates Courts Act 1978, where there is a similar power to award, in addition to periodic payments, a lump sum which, in the case of the Magistrates jurisdiction, is made subject to the same ceiling of £1,000 and is likewise capable of being paid by instalments. I refer in particular to sections 1-7 of the 1978 Act and to section 2(2) which (in language closely matching paragraph 5 of the first schedule to the Children Act) reads:

"Without prejudice to the generality of subsection 1(b) or (d) an order under this section for the payment of a lump sum may be made for the purpose of enabling any liability or expenses reasonably incurred in maintaining the applicant, or any child of the family to whom the application relates, before the making of the order to be met."

There is power, in both the Children Act jurisdiction and the Magistrates' jurisdiction, to backdate any order for periodic payments to the date of the issue of the relevant application.

Although the lump sum power is widely expressed as an entirely general power, there are indications (in both paragraph 5(1) of the first schedule to the Children Act and section 2(2) of the 1978 Act) that one purpose expressly contemplated by Parliament was a once and for all payment to take account of maintenance expenses already incurred by the claiming parent on the child's behalf, either before the application was brought or during the period between the date of the application and the date when the order comes to be made. In the latter eventuality, it provides an alternative to an order backdating periodic maintenance. To that limited extent it matches, in cases where illegitimate children are concerned, the jurisdiction under the old affiliation procedure to award a sum to a mother by way of reimbursement of the expenses of the birth.

The position, therefore, in summary is that both in the matrimonial and the Children Act jurisdictions there is power in the High Court and the County Court to award lump sums of unlimited amount to or for the benefit of children outright or by instalments. In the Magistrates' Court there is jurisdiction to award a lump sum subject to a financial ceiling, at present £1,000, payable either immediately in full or by instalments. There are suggestions in the wording of the relevant sections or paragraphs in both jurisdictions that one contemplated purpose of this power may be to take account of child maintenance obligations undertaken by the claiming parent before the commencement of the proceedings and/or before the date of the order.

There has been no case law so far regarding the Magistrates' power to award a lump sum under the Children Act, but the corresponding provisions of the 1978 Act have been the subject of authority. In Wilson-v- Wilson (unreported) Court of Appeal transcript 161 in March 1978, the husband, whose only capital was £150 in a building society and whose income was £14,000...