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What happens to the financial provision for a child after a transfer of residence?

One might think that it would be easy to decide what to do with an order that a father makes financial provision for his child after it has been decided that the child should live with him. Surely, the order should simply be discharged?

Well, it’s not necessarily quite as straightforward as that, as the recent case C (A Child) Schedule 1 Children Act Variation demonstrates.

The facts of the case were as follows.

1. The case concerned a child, ‘C’, who was born in October 2014.

2. C’s father is American and his mother is British.

3. The parents only “had the briefest of relationships”, while the father was working in this country.

4. There has been “almost continual parental strife” throughout C’s life (where have we heard this before?), including (but not limited to) two substantial sets of proceedings about him: one under section 8 of the Children Act in relation to arrangements for him (i.e. with whom he should live, and what contact the other parent should have) and one, issued by the mother, for financial provision for him, pursuant to Schedule 1 of the Children Act.

5. In April 2016 an order was made in the section 8 proceedings by agreement. The order provided for C to spend 8 weeks at a time with his mother and 4 weeks, rising to 6 weeks, with his father.

6. The Schedule 1 proceedings were heard in December 2016. His Honour Judge Booth ordered that the father provide up to £700,000 for a home for C and the mother, with the property reverting to him when C finishes his education. The father was also ordered to pay maintenance for C in the sum of £5,500 per calendar month until the completion of the purchase of the property and, thereafter, at the rate of £4,500 per calendar month.

7. The property was never purchased, and the maintenance continued.

8. In March 2017 the section 8 proceedings were back before the court, and in June 2017 the father applied to vary the Schedule 1 order.

9. In December 2017 the section 8 proceedings were concluded when the court made an order that C should live with his father in Canada and spend time with his mother in England. The mother appealed against this order, but her appeal was dismissed.

10. The father sought to discharge the Schedule 1 order in its entirety. The mother, on the other hand, sought to enforce the order. The matter went back before Judge Booth to decide.

The first issue that Judge Booth had to grapple with was whether he even had the power to vary or revoke the order he made in December 2016. I won’t bore you with the technicalities – suffice to say that he decided he did have that power.

The main issue, then, was what to do about the earlier order.

As Judge Booth said, there was no doubt at all, and nor was it argued otherwise, that there had been a very significant change in circumstances since December 2016. However, C would still be spending time with his mother, who had an ‘undeveloped’ earning capacity and no capital, whereas the father had a substantial income.

After considering the matter Judge Booth decided that there was no longer any justification for the maintenance order. However, the provision of housing was a different matter. He concluded that the arrangement for a settlement of property to be occupied by C when he is in England with his mother, where the value of the property is retained by the father and reverts to him at the end of C’s minority or when he ceases full-time education, remained the appropriate arrangement.

However, as C was now only to spend 8 weeks a year with his mother in England, a smaller property would now be appropriate. He, therefore, reduced the ‘housing fund’, from £700,000 to £200,000.

An unusual but interesting case, demonstrating once more that in family law things are often not quite as straightforward as they may initially seem!

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Fred says:

    Hmmm. So the Mother has an undeveloped earning capacity.. surely she should be ordered to get up off her backside and develop her earning capacity. It isn’t the 1950’s anymore and equality should prevail.. I see it unlikely that a Father would get such treatment due to his undeveloped earning capacity- quite the opposite I should imagine. Why should he be forced to guarantee her lifestyle? Get a job and live within the means of your earning capacity whatever that may be.

  2. Andrew says:

    If you read the judgment, Fred, you will find that the monthly payments were stopped from 1 April 2018. In paragraph 41 the judge agreed with you in rather more judicial language.

    I respectfully disagree with the judge in the next paragraph: he says that the mother has a poor credit rating because of the debt she has incurred in this litigation and that that is a self-inflicted wound – but he still makes the father buy her a house because she can’t. That puts a premium on irresponsible behaviour, doesn’t it?

  3. Andrew says:

    The other oddity is this: that if the mother marries or cohabits the father has liberty to apply for early reversion.

    Liberty to apply. So the father could end up housing another man and his wife!

    In orders like this (and in Mesher orders) marriage should lead to sale as day follows the night; and also in the case of cohabitation unless a full occupation rent, equal to what the house would fetch if let commercially, is paid.

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