S (A Child), Re

The assessment of the upper limit of a housing fund for a child is a broad-brush discretionary judgment. The court may evaluate the available properties and determine a fund sufficient to meet the child’s needs, even though individual judges may differ on the appropriate figure. A prior observation about separate representation must not be read as a general rule. Separate representation requires an application to the court, close scrutiny by the judge and exceptional circumstances.

This was an appeal from a judgment of Mr Justice Bennett in the Principal Registry of the Family Division. The Court of Appeal considered the appropriate upper limit of the housing fund available to purchase a suitable home for the child until majority. The existing property was regarded as unaffordable, and the court reviewed alternative properties available within the relevant search area.

The court also clarified an observation in its judgment of 15 March 2006 concerning separate representation of the child. The central issues were the appropriate housing fund and the circumstances in which separate representation might be considered.

1. Housing fund. Lord Justice Thorpe delivered the judgment of the court. The court’s assessment of the upper limit was necessarily broad-brush and discretionary. Although the three judges had individually different views about the appropriate figure, they reached a shared conclusion.
2. The existing property was no longer affordable. Its proposed net sale price was about £1.375 million, which would have required a gross fund slightly exceeding £1.4 million. The court considered a range of alternative properties, balancing proximity to the school against size and location. It was satisfied that suitable properties meeting the child’s needs were available within the lower price bracket.
3. The collective conclusion was that the gross fund available for purchasing the property should be £1.1 million. The purchasing trustees could therefore bid for a property at or slightly above £1 million. The court emphasised that this was a broad-brush judgment which could not be supported by detailed principle or rationalisation.
4. Separate representation. Lord Justice Thorpe clarified that paragraph 17 of the judgment dated 15 March 2006 was not intended to establish a general rule requiring separate representation of a child. Separate representation could be considered in appropriate circumstances, but it could only be obtained on application to the court. Such an application would be closely scrutinised and would be granted only in exceptional circumstances. This was such an exceptional case, and that factor alone prompted the earlier observation.
5. Lord Justice Laws and Lady Justice Hallett agreed with the judgment and clarification. Order: the fund to be made available for the purchase of the property was fixed at £1.1 million.

1. Court of Appeal (Civil Division): On appeal, the court fixed the gross housing fund at £1.1 million and clarified the limited circumstances in which separate representation of the child may be considered. The decision is reported at [2006] EWCA Civ 1310.
2. Principal Registry of the Family Division: The appeal was from a judgment of Mr Justice Bennett, referred to as dated 15 March 2006. Its citation and operative result are not stated in the judgment.