Morgan v Hill

In a claim for financial provision for a child under the first Schedule to the Children Act 1989, a pre-existing parental agreement is the starting point and normally carries substantial weight. It is not conclusive. The court may depart from it where it is unenforceable or does not make proper financial arrangements, and must make an order that is just in all the circumstances. The same approach applies whether relief is sought under paragraph 1 or by varying the agreement under paragraph 10. A parent cannot be ordered to provide for another parent’s child, although incidental benefit from shared household provision may be unavoidable. Claims against different fathers should be determined with both financial positions before the court.

The parties were unmarried parents of Mark. The appellant had agreed contractual arrangements for property and maintenance, but no court order was made. The respondent later applied under s15 and the first Schedule to the Children Act 1989 for financial provision. The deputy judge ordered a housing trust fund, a lump sum, increased periodical payments and a motor allowance. The appellant challenged the effect of the agreement and argued that the orders indirectly subsidised Mary, the respondent’s daughter by another father. The respondent cross-appealed on the motor allowance. The central issues were whether the agreement limited the court’s jurisdiction and how financial responsibility between the two fathers should be assessed.

Appeal allowed in part; cross-appeal dismissed. The housing trust fund, periodical payments and motor allowance were upheld. The lump sum was reduced from £100,000 to £50,000.

1. The principles in Edgar v Edgar [1980] 1WLR 1410 did not make the unapproved agreement conclusive. In an application under the first Schedule, the agreement is the starting point and one of the circumstances to which the court must attach weight. Its significance depends on the circumstances. The court must not treat it as negligible, but may depart from it where it is unenforceable or inadequate. The approach is the same whether the application is made under paragraph 1 or paragraph 10. The later authorities Camm v Camm [1983] 4 FLR 577 and Smith v Smith [2000] 3FCR 374 supported inadequacy as a proper basis for a greater award.
2. Under paragraph 1 of the Schedule, the court had no jurisdiction to make an order against the appellant for the benefit of Mary. Difficulties in separating direct costs from shared household and motoring costs did not enlarge that jurisdiction. Incidental benefit to Mary from living in a home provided for Mark was permissible, but the order could not fix responsibility for Mary on the appellant.
3. The housing provision and periodical payments were within the deputy judge’s discretion. The evidence supporting the contribution of Mary’s father justified ordering the appellant to meet the balance in relation to Mark. The lump sum, however, included debt substantially attributable to Mary’s needs and was therefore excessive to that extent. The respondent was not required to liquidate her only appreciating asset or contribute her own capital merely because she possessed it.
4. For future cases, claims against more than one father should be dealt with at a consolidated or consecutive hearing, with full financial information and, where appropriate, joinder. The court gave further procedural guidance concerning Forms E, limited questionnaires and consensual FDR-style appointments. Separate representation of the child should be considered only in exceptional cases. The court also endorsed the observations in re P [2003] I FLR 865 on the benefits of mediation and avoiding contested hearings.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1602, the appeal was allowed only to reduce the lump sum to £50,000. The cross-appeal was dismissed.
2. High Court of Justice, Family Division: Mr Peter Hughes QC, sitting as a Deputy High Court Judge, made orders for a £700,000 housing trust fund, a £100,000 lump sum, increased periodical payments and a motor allowance on 13 June 2006.