P (Child), Re

On an application for financial provision for a child under Schedule 1 to the Children Act 1989, the court must assess all the circumstances, including the parents’ resources, the child’s needs and education, and the child’s welfare. Welfare is not paramount, but it is ordinarily a constant influence on the outcome.

A child’s need for a primary carer permits provision for that carer. The absence of a personal maintenance claim does not diminish a realistic allowance. In substantial cases, the court should decide suitable housing first and then make a broad, commonsense assessment of capital and income needs. Provision should bear some relationship to the paying parent’s resources and lifestyle, while remaining for the child’s benefit rather than a disguised settlement on the carer.

The mother applied for financial provision for her daughter under section 15 and Schedule 1 of the Children Act 1989. The father was exceptionally wealthy. The parents had never married or shared a home. The application followed a child-support assessment and was heard in the Family Division by His Honour Judge Brunning, sitting as a deputy High Court judge.

The judge awarded housing, furnishings, a car, school-fee provision and periodical payments, but set the housing and income awards at levels the mother challenged. He also directed a future reduction in periodical payments and awarded limited arrears. The mother appealed. The central issues were the proper discretionary approach to Schedule 1 provision for a child of a very wealthy parent, the allowance for the primary carer, and the court’s power to make retrospective provision.

1. Appeal allowed unanimously. The judge’s overall awards were plainly too low in light of the father’s exceptional wealth and lifestyle. The court substituted provision on the basis of a £1 million home in central London, £100,000 for furnishing and equipping it, periodical payments of £70,000 a year subject to deduction of state benefits, and arrears of £40,000. The remainder of the order stood.
2. Under paragraph 4 of Schedule 1 to the Children Act 1989, the child’s welfare is not paramount but is a constant influence on the discretionary outcome. Provision must take account of the parents’ resources, the child’s needs and education, and the child’s entitlement to circumstances bearing some relationship to the father’s resources and present standard of living. The court must nevertheless guard against provision that is in substance for the mother rather than the child.
3. A child’s financial needs include being cared for by a primary carer who is adequately supported. The mother had no independent right to maintenance, but that did not reduce a realistic allowance for her role as primary carer. The assessment should be broad-brush and should not be equated with the commercial cost of employing a nanny. Payments must be spent for the child’s needs and should not create savings or a personal fund for the mother.
4. In affluent cases, the court should ordinarily decide the appropriate home first, including its location, size and value. It should usually be secured by a settlement of property for the child’s minority, with reversion to the paying parent. The court can then assess furnishing, a car and income needs by broad common sense. Periodical payments remain variable, so anticipated future reductions should generally await the events that may justify variation.
5. The court construed paragraph 5(1) of Schedule 1 broadly. It could meet past liabilities incurred in maintaining the child, including a non-enforceable liability to the mother’s father. Alternatively, section 8(6) of the Child Support Act 1991 and paragraph 3(5) and (6) of Schedule 1 permitted a top-up periodical-payments order to be backdated to 20 August 2001, the effective date of the assessment.

• Court of Appeal (Civil Division): allowed the mother’s appeal and varied the financial provision order: [2003] EWCA Civ 837.
• High Court of Justice, Family Division: His Honour Judge Brunning, sitting as a deputy High Court judge, made the Schedule 1 financial provision order, perfected on 14 January 2003.