S (a child) , Re

The phrase “for the benefit of the child” in paragraph 1(2) of Schedule 1 to the Children Act 1989 has a wide meaning. It may include financial provision enabling a parent to travel abroad to see a child and pursue lawful steps aimed at securing the child’s return, where that may benefit the child. Paragraph 14 is not an exhaustive code governing every case involving a child abroad. A parent remaining in England and Wales may therefore seek provision for a child abroad, particularly after wrongful retention, although any order remains discretionary. The decision was confined to the exceptional facts and did not define the jurisdiction exhaustively.

The father unlawfully retained the child in Sudan at the end of a contact period. The Supreme Court of Sudan subsequently ordered that the child be returned to the mother. Kirkwood J found that the child was habitually resident in England and Wales but refused an order for direct return, holding that the Sudanese courts were competent to determine outstanding issues.

The mother then applied under section 15 and Schedule 1 of the Children Act 1989 for periodical payments and a lump sum, including to enable her to travel to Sudan and pursue the child’s return. Bracewell J declined jurisdiction, construing paragraph 1(2) narrowly and paragraph 14 as exclusive. The central issue was whether those constructions prevented the application being considered on its merits.

Appeal allowed unanimously. Permission to appeal was granted. Paragraph 1 of Bracewell J’s order was set aside, and the application was remitted to the Family Division for determination on its merits. Restrictions on the father’s access to funds in the property were continued until further order.

1. Meaning of “for the benefit of the child”. Lord Justice Thorpe held that the phrase in paragraph 1(2) of Schedule 1 to the Children Act 1989 required a wide construction. It was not confined to expenditure directly concerned with the child’s maintenance and upbringing. On appropriate facts, financial provision could enable a parent to travel abroad to see the child and pursue rights directed towards securing the child’s return. Whether the expenditure benefited the child remained a matter for discretionary appraisal. Lord Justice Wall agreed, including where a child had been abducted or wrongfully retained abroad.
2. W v J. The Court distinguished the decision of Bennett J in W v J (Child: Variation of Financial Provision) [2003] EWHC 2457 (Fam), [2004] 2 FLR 300. That decision was correctly decided on its extreme facts concerning substantial funding of a parent’s legal fees, but it was not intended to establish a general rule excluding all expenditure which also benefited the applying parent.
3. Scope of paragraph 14. Paragraph 14 was designed to provide for financial orders where a parent in England and Wales paid for a child living abroad with another parent, guardian or residence-order holder. It was not a comprehensive jurisdictional provision excluding all other Schedule 1 applications concerning children abroad. There was no express statutory limitation, and no such limitation should be implied. The Family Law Act 1986 did not provide a contrary basis.
4. Application of the principles. Although the case did not involve wrongful removal across borders, the mother had the benefit of findings that the child remained habitually resident in England and Wales and that the Sudanese Supreme Court had ordered his return. In those exceptional circumstances she was entitled at least to a discretionary appraisal of whether financial provision should be made. The Court deliberately left the wider extent of Schedule 1 jurisdiction open.

• Court of Appeal (Civil Division): The appeal was allowed, Bracewell J’s jurisdictional order was set aside, and the Schedule 1 application was remitted. The order also continued injunctive relief concerning the property. [2004] EWCA Civ 1685
• High Court, Family Division: On 23 July 2004, Bracewell J declined jurisdiction to entertain the mother’s Schedule 1 application and refused permission to appeal.
• Earlier High Court proceedings: On 23 January 2004, Kirkwood J found that the child was habitually resident in England and Wales but refused an order for peremptory return.