A v A (Financial Provision for Child)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
WARD, J
Child – financial provision – unmarried parents – whether property adjustment order should be made – whether settlement should be made to secure home for child – factors to be taken into account when ordering financial provision for child.
Financial provision – child – unmarried parents – father resident abroad – mother applying for settlement of property and financial provision for child – whether settlement should be made – factors to be taken into account when making order for financial provision.
The mother of a child born in 1983 applied for orders against the father of the whole range of orders under Sch 1 to the Children Act 1989. The mother and father were not married.
The mother had given birth to another (older) child in 1982 and to another (younger) child in 1984. She claimed that the father was the father of all three children. From the time she was pregnant with the eldest child the mother was supported by the father. In 1983 he purchased a property as a home for the mother and children. The mother and the three children had lived there ever since. The father paid very large sums for the support of this family. He was resident abroad but visited the family from time to time.
In May 1989 the mother commenced divorce proceedings claiming that she and the father were married. She obtained an order for maintenance pending suit for herself and the three children.
In July 1989 blood tests showed that the father was not the father of the eldest and youngest children. He accepted that he was the father of the child born in 1983.
In February 1990 the mother's petition for divorce was dismissed. The Judge made a declaration that the mother and father had never been married. He further found that she had misconducted those proceedings and condemned her to pay the father's costs.
The father terminated his generous financial support of the family.
The mother applied, inter alia, for financial provision for the child born in 1983 and for an outright transfer of the property either to the mother for the benefit of the child or to the child herself.
Held – (1) The father's obligation and responsibilities were to provide for the maintenance and education of his child until she had completed that education and reached independence. The child had no physical or mental disability. There was no special circumstance which imposed upon the father any duty to advance capital or income to her once he had fulfilled that duty. Where a father bought a property to provide a roof over the head of the unmarried mother and his child, this was not such an exceptional circumstance as to justify
the transfer of the property to the child. In the circumstances of this case, to ensure the child's financial security, the proper order would be for a settlement to be made for the benefit of the child, that while the child was under the control of the mother, the mother would have the right to occupy the property to the exclusion of the father and without paying rent, for the purpose of providing a home for, and care and support of, the child. The property would be settled on trust for the child and the trustees would hold the property for the child for a term which would terminate six months after the child had attained the age of 18 or completed full-time education.
(2) The mother had been guilty of misconduct in relation to the divorce proceedings. She was a person to be treated as one who had fabricated a case to pervert justice. But her misconduct did not affect the child's claim to be properly maintained by the father. Further, the amount of maintenance for the child could properly include an allowance for the mother. Although part of the amount ordered for the child might be spent on her half-sisters, this circumstance was not one which would result in a lesser sum being paid for the child. In the circumstances the father would be ordered to pay £20,000 a year for the child and to pay her school fees and the usual school extras.
Statutory provisions referred to:Affiliation Proceedings Act 1957.
Children Act 1989, s 105; Sch 1, para 4.
Domestic Proceedings and Magistrates' Courts Act 1978.
Family Law Reform Act 1987.
Guardianship of Minors Act 1971.
Inheritance (Provision for Family and Dependants) Act 1975.
Matrimonial Causes Act 1973, s 25.
Cases referred to in judgment:Chamberlain v Chamberlain [1973] 1 WLR 1557; [1974] 1 All ER 33.
Coventry (deceased), Re [1980] Ch 461; [197] 3 WLR 802; [1979] 3 All ER 815.
Harnett v Harnett [1973] Fam 156; [1973] 3 WLR 1; [1973] 2 All ER 593.
Haroutunian v Jennings (1980) 1 FLR 593.
Kiely v Kiely [1988] 1 FLR 248.
Lilford (Lord) v Glynn [1979] 1 WLR 78; [1979] 1 All ER 441.
Paul Focke, QC and Philip Waller for the applicant.
Bruce Blair, QC and Christopher Wood for the respondent.
MR JUSTICE WARD.This is a claim by the mother of a girl, A, born on 27 May 1983, in which she seeks orders against A's father for the whole range of financial provision for the child under Sch 1 to the Children Act 1989. She applies for periodical payments, secured periodical payments, a lump sum, a transfer of property, and, by late amendment, a settlement of property.
I shall give the barest outline of the intriguing background. The mother and father met in 1977 or 1978, and sometime thereafter commenced a sexual relationship. The mother alleged that she married or went through a ceremony of marriage with the father on 12 May 1981, but when she sought the dissolution of that marriage or alternatively a decree of nullity, Rattee, J had no hesitation in finding that no ceremony took place between them which might have been capable of constituting
them husband and wife whether as alleged by the mother or otherwise, and he made a declaration accordingly in that form.
On 31 March 1982, the mother gave birth to a daughter, O. She has at times, including at times in these various proceedings, asserted that the respondent was the father. From about the time of her pregnancy she began to be supported by the father. Early in 1983 she became the tenant of a two-bedroom flat in London W2. Shortly after A's birth, the father acquired a property in NW3 in the name of an offshore company which is under his control. This property was purchased in order to be a home for the mother and children, and they have lived there ever since.
On 8 September 1984 she gave birth to her third daughter, T, of whom she again asserted the respondent was the father. He is a very rich man, and paid very large sums of money for the support of this family. Being resident abroad, he used to visit from time to time, but the parties never truly cohabited. In August 1988 the mother set out for the land of her birth and his, but I find she changed her mind about staying there and returned to London. She immediately commenced the divorce proceedings to which I have referred. On 19 May 1989 she obtained an order from Booth, J for maintenance pending suit at £35,377 per annum, and £4,405 for each of the three children.
The father had become suspicious about the paternity of the children and blood tests revealed in July 1989 that he was not the father of O and T. He accepts that he is the father of A.
On 5 February 1990 Rattee, J dismissed the mother's petition and made the declaration I have recited. The mother appeared by counsel but did not herself attend, and as a mark of the court's displeasure in the manner in which she had conducted – indeed misconducted – those proceedings, the Judge condemned her to pay the respondent's costs on an indemnity basis – since taxed in...
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