Child Maintenance and Financial Support for unmarried Parents
The mother of a son by a Middle Eastern royal has failed in a bid to increase the child maintenance she receives from £200,000 to £800,000 per year.
She had applied for the huge increase because she believed her son ’C’, now aged seven, should lead a life in keeping with his father’s wealth. She repeatedly cited various luxuries, including a box at the Emirates football stadium, membership of Ascot, first class flights and household staff.
The unnamed woman made the application under section 1 of the Children Act 1989, which governs the ‘welfare of the child’. This provision enables parents who were not married to apply to the court for financial provision of their child. In her 30s, this mother was from Middle East but lived in London with her son. His father is resident abroad. Thus the only application the mother can make for child support / maintenance for her son is under the above provision.
Her original case setting the bar had been to the Court of Appeal in 2013 was refused, and permission to the Supreme Court was also refused. Mr Justice Bodey refused this present application too.
A court may make an order for child support in accordance with Paragraph 4 of Schedule 1, which states:
In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—
(a)the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b)the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c)the financial needs of the child;
(d)the income, earning capacity (if any), property and other financial resources of the child;
(e)any physical or mental disability of the child;
(f)the manner in which the child was being, or was expected to be, educated or trained.
At the High Court, Mr Justice Bodey noted that the boy’s father had played no role in his upbringing beyond paying the mother child maintenance.
“The parties never lived together. The father has never seen C, nor expressed any interest in him. The mother, therefore, bears the entire responsibility of caring for him and bringing him up. She wishes to do so in a lifestyle commensurate with that of the son of a member of a hugely wealthy Royal Family.”
While he acknowledged that the father was “among the super-rich” and lived in a “world of opulence”, the Judge was unconvinced by the mother’s application, saying the amount she currently received was “suitable and appropriate”.
The mother has been left in financial circumstances which could not be more different from those of the father:-As the learned Judge records:
“She says she has no capital and it is not suggested that she has. Aside from the maintenance for C, she has no income.”
This mother isn’t considered legally married in this country. The result is that when child support ends, she will be left with no home and no money. This boy – presumably a putative prince himself, has on occasion even been left in terrible pain because his mother claimed she doesn’t have ready access to the funds needed to pay his dental bills. Shame on the both of them.
But is the level of the award correct?
The learned Judge says this:
“Unhappily the mother has a fervent belief that C and therefore she herself, by way of a carer’s allowance, should be allowed a vast income provision to enable C’s lifestyle to replicate that of the father; but almost without regard to the fact that he is a seven-year old growing up in London.”
“In her statement of 25th November 2015, she still, for the third time, seeks a box at the Emirates and at Ascot for C, together with membership of Ascot and Wentworth golf clubs. This is even though her claims for boxes have been specifically dismissed. She still refers to needing a nanny/governess/house manager and a housekeeper. She seeks air travel for herself and C, first class return twice a year (admittedly with an airline in respect of which the father has connections) and for economy flights for a nanny/governess, until C completes his tertiary education.”
Historical Case law
Most unmarried parents seeking provision for their children are unlikely to be familiar with Schedule 1 and so, their minds are more likely to turn to the Child Maintenance Service (“CMS”). Any lingering confusion as to whether there was an overlap of CMS and the Court’s jurisdiction to order child support payments was clarified by Holman J in Dickson v Rennie  EWHC 4306 (Fam) in which Holman J held that the Court’s power to order top-up maintenance is only available where the CMS has assessed that the payer’s income exceeds the maximum maintenance assessment of £3,000 gross per week.
Schedule 1 applications, however, are not restricted to periodical payments. In addition to the Court’s power to make an order for periodical payments or secured periodical payments, the Court has the power to order a lump sum, transfer and settlement of property. The Court’s power also extends to making orders for periodical payments and lump sum for children over the age of 18 in full time education or where special circumstances i.e. disability exist.
According to the recent Office for National Statistics data released last week, the fastest growing family type over the last decade is cohabiting couples both with and without dependant children. Further, the types of families in which dependant children live have changed significantly over the last decade. In 2004 11% of children lived in such families which rose to 14% by 2014, whereas over the same period the percentage of children living in a married couple family fell by 3% to 63%. It has been beyond the writer’s reach to persuade any Court Centres to provide statistics for applications made pursuant to Schedule 1 in recent years. Therefore, anecdotally, the writer would suggest there does not appear to have been similar growth in the number of Schedule 1 applications to match the growing number of families where parents do not have recourse to the Matrimonial Causes Act 1973.
Published judgments on Schedule 1 applications have, traditionally, concerned big money cases where the father’s assets hugely exceed needs. However, there are now examples where the Court has considered applications where the father does not have sufficient assets to comfortably meet both his own needs and those of the child. A conundrum that Courts are, of course, very familiar with in cases where the parties have been married.
Though not listed as a factor on the checklist that the Court has to consider in an application under Schedule 1, it is well established that a child’s welfare has an important role to play in the Court’s determination. Lord Justice Thorpe made this clear in Re P (Child: Financial Provision)  EWCA Civ 837 when he said, ‘I would only wish to amplify by saying that welfare must be not just ‘one of the relevant circumstances’ but, in the generality of cases, a constant influence on the discretionary outcome’. Has the time come for lawyers to take a more robust view of the possibilities of a Schedule 1 application? Is there greater scope than previously thought for Courts to be asked to prioritise a child’s needs over those of their parents?
No doubt part of the reluctance to pursue these claims in cases where resources are limited is the risk of costs. The general rule for Children Act 1989 applications that there is no order as to costs does not apply to Schedule 1 proceedings. Thus the most important practical guidance is to protect your position on costs. See KS v ND (Schedule 1: Appeal: Costs)  EWHC 464 (Fam) for guidance on costs in Schedule 1 cases. Mostyn J indicates the starting position ‘In Schedule 1 proceedings the Court should in my opinion start with a ‘clean sheet” and reminds practitioners ‘that protection in respect of costs can be achieved by making a Calderbank v Calderbank  Fam 93,  3 WLR 586, (1975) FLR Rep 113 offer’.
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