In GN v MA, (reported on this blog a few days ago), we see the most recent stage in a continuing application for child support under Schedule 1 of the Children Act 1989. The child in question is seven years old. His parents are not legally married. His father is resident abroad. Thus the only application the mother can make for child support for her son is under the above provision.
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.
That’s the background law. We will consider shortly how it has been exercised in this case, and consider whether it is appropriate to take into account the illegitimacy of that child into account – directly or indirectly – when arriving at the appropriate level of provision, despite the fact that legitimacy is no longer officially recognised in law.
First though, let’s rewind the clock back to 1996, when one case caused something of a stir in family law circles. Dart v Dart concerned a hugely wealthy American couple getting divorced in the English courts.
Their family wealth derived from making polystyrene cups. Mr Dart was estimated to be worth about £400 million and his wife, who had found herself wrong-footed and unable to litigate her case in Kentucky, put in a claim for a vast chunk of that wealth in accordance with her lifestyle and reasonable needs. Today she would stand a good chance of walking away with about £100million, but back then, when her case was fought by a QC with foresight named James Munby, he ended up on the receiving end of a severe judicial pasting as he boldly but unsuccessfully argued for a substantial slice of the husband’s wealth.
Mrs Dart was told to cut her cloth, and the eye watering budget she sought, hoping for a lump sum, was unceremoniously sliced up by the Judge. Her super-gilded lifestyle was held by the courts to have come to an end. There was no way on the court’s order that it could continue.
As Lord Justice Thorpe sitting in the Court of Appeal put it, apparently scarcely able to believe his ears, the QC’s arguments had challenged “the entire corpus of subsequent decisions in this court on …what are known as big money cases… in my judgment this is a hopeless submission.” Mrs Dart was awarded just £8.5 million and because she had rejected £10 million she was also ordered to pay her husband’s costs.
James Munby QC may have lost the battle but he subsequently won the war. His argument that she should be allowed to continue her sumptuous lifestyle proved prophetic. The judicial section of the House of Lords (soon to become the Supreme Court) chose a new and bolder interpretation of Section 25 of the Matrimonial Causes Act 1973 in their ruling on the case of White v White. In this way, without any change in the law, the jurisprudence changed, introducing a different approach to financial settlements on divorce. The principle of equal division became a starting point once reasonable needs were met in so-called ‘big money’ cases. Lower down the case ladder, the starting point for negotiations is also now 50/50 in most cases.
And as for that swashbuckling QC James Munby, daring to take on established practice, whatever became of him??
I was reminded of Dart v Dart when I read the recent ruling by Mr Justice Bodey in GN v MA. In this case, some £780,000 per annum child support had been requested by the mother, a fourfold increase on the current sum paid of £204,000 per annum. 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.
Let’s start by saying, this is an eye watering amount of money for a seven year-old child. Entire families could happily live on £204,000 net of tax and in most cases I wouldn’t have troubled to argue otherwise. Ditto the £3.4m price of the home he lives in, which is held in a trust until he reaches 21.
But this isn’t one of those cases. Like Dart, it’s an exceptional, breathtaking case, one that requires a flight of imagination so bold that it actually surpasses Dart.
It’s not hard to discover the identity of these parties in this case. Their story has been plastered over the pages of many newspapers and it makes for some interesting legal reading, in earlier case law.
But of course I will respect the anonymity of this judgement, which does, after all, concern a child. But I will note that there are clues within the judgement: the reference to a box at Emirates stadium, the request for a box at Ascot races, a connection to a Middle Eastern Airline. This boy’s father, in his 50s, is not just wealthy but stonkingly, stupendously wealthy, a billionaire, and a senior member of a Middle Eastern royal family.
As the Judge stated:
“It is impossible to know the reality of his lifestyle, save to say that his family, the royal family, appears to rank pretty clearly among the super-rich and that as a senior member of that family he moves naturally within a world of opulence (the mother’s word) where there is effectively little if anything which he cannot have, or have the use of.”
Mr Dart was poor by comparison.
Think what that means: nothing – literally nothing – is beyond his means. Huge palaces, estates around the world, priceless artefacts, travel by the most opulent means possible – the reality of this man’s life is staggering. It actually defies the imagination. It is likely he will count the most powerful people in every country as a friend or acquaintance. His wife or wives and their children will literally want for nothing. Everything and anything they want, they will have. Middle Eastern queens and princesses lead gilded lifestyles – they never have to pay a bill of any kind whatsoever.
Now let’s turn to the mother. She was born into a well-off family but from a different Middle Eastern country. She and the child’s father went through an Islamic marriage ceremony in this country in 2007, which is not recognised in this country. Their child was born a year later. The parties never cohabited in the conventional sense, and after the birth the father has never troubled himself to set eyes on the boy or in fact had anything to do with him at all.
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.”
As we have seen, 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.”
Is she so very wrong? If he can provide air travel simply by wave of a hand to a minion? Recognised children of this man will enjoy a gilded lifestyle, unimaginable to us from birth through to death, but this child will not, without appropriate provision made for him by the court. Why ever not?
I respectfully disagree with the continuous judicial approach to this case. Yes he is a young boy growing up in Central London. But I’m far from sure that is or should be the determining factor. Other young boys are growing up in Central London enjoying royal privilege and wealth as a result of their birthright – Prince George, for example, at Kensington Palace. But even his family’s vast royal wealth may not equal that of the seven year-old’s father.
Back in the 17th Century, King Charles II took what I feel is the right approach.
He treated his mistresses and their offspring royally. Louise de Kerouaille bore him a son, Charles Lennox, whom the King made Duke of Richmond. Lennox acquired Goodwood House, and today it is famous worldwide for its stunning racecourse – a racecourse heavily sponsored during the racing season, moreover, by Middle Eastern royalty.
We need a sea change in our approach similar in scale to Dart, ending the arbitrary distinction which, like it or not, does differentiate between one whose mother is legally married and another who is not.
There is far too much disparity between the lifestyles of the father’s legitimate offspring and this child. If taking a more balanced approach means upping the mother’s carer’s allowance, so be it. There is no reason this child should not properly share in the good fortune of his birth, and be proud of who he happens to be by reason of his birth. He is the innocent in all this- he had no control over the actions of his parents. He should not be constantly reminded that he is the son of a woman treated by his father and the law as a concubine.