M v T

Under Schedule 1, the court has jurisdiction to order an interim payment towards a parent’s legal costs where the payment is properly characterised as being for the benefit of the child. The applicant acts in a representative or quasi-representative capacity. The existence of jurisdiction does not require the court to exercise its discretion in every case. The court must guard against costs being used to satisfy a parent’s taste for litigation or placing the respondent in an unduly difficult position. Proper representation and an appropriate equality of arms may nevertheless justify funding, particularly where the payment can be taken into account in the final financial provision.

The judgment concerned a further review of financial provision proceedings under Schedule 1. The court had previously ordered interim payments, including an amount for legal costs, and a capital payment. The respondent sought amendments, a later commencement date for classroom-assistant funding, an extension of time to pay, and reconsideration of the legal-cost element.

The respondent relied on W v J [2004] 2 FLR 300, which had treated an application for payment of a parent’s legal fees as benefiting the parent rather than the child. The central issue was whether Schedule 1 conferred jurisdiction to order an interim payment towards the applicant parent’s costs.

1. Jurisdiction. The court held that Schedule 1 permits an interim payment towards an applicant parent’s legal costs where the payment is for the benefit of the child. The applicant applies in a representative or quasi-representative capacity. Legal costs incurred in presenting the children’s case may therefore fall within the statutory concept of benefit.
2. W v J. On the assumed construction of W v J [2004] 2 FLR 300, its jurisdictional conclusion was wrong. The judge respectfully disagreed with it and declined to follow it. The distinction between jurisdiction and discretion was important: the court possesses the jurisdiction, but must decide whether its exercise is justified in the particular case.
3. Discretion. In exercising the discretion, the court must take care that the payment does not satisfy the applicant’s taste for litigation or oppress the respondent. The court may account for overpayments in the final Schedule 1 order. The possibility that the applicant may otherwise be unable to present the children’s case properly, and the need for an appropriate equality of arms, were relevant considerations.
4. Application. The existing costs figure was retained. On the facts found, including the respondent’s conduct and the history of the litigation, funding was plainly for the children’s benefit. The application to delay classroom-assistant funding was refused. A final 14-day extension was granted for payment of the capital sum. If payment was not made, the respondent would be debarred from adducing further evidence or defending the Schedule 1 money claims without permission, although the sanction was not extended to contact applications or further interim-payment disputes.