Mrs MB v Mr KB

A prior matrimonial consent order does not create a formal or informal issue estoppel preventing later financial provision for a child whose housing needs develop during minority. The order may bind a parent’s own compromised claims, but cannot oust the court’s jurisdiction to protect the child. An application should be struck out only where it is doomed to fail and there is no good arguable case. Where long-term housing was not definitively resolved and the child’s needs have changed, the application should proceed, subject to assessment of its merits.

The mother applied under section 15 and Schedule 1 to the Children Act 1989 for further provision for the parties’ daughter, principally improved housing. A previous matrimonial consent order had provided conditional occupation of accommodation and financial support, while dismissing the mother’s capital claims.

The father sought to strike out the application, arguing that the earlier order determined the housing issue and that the new claim was a second bite of the cherry. The central issue was whether the earlier order barred a later claim based on the child’s developing housing needs.

1. Application not struck out. The court refused the father’s application in limine. The Children Act application could proceed, and the mother was entitled to further disclosure, subject to the risk of costs if the alleged resources were not established.
2. The court has an inherent jurisdiction to strike out an application that is doomed to failure. It should permit continuation only where there is a good arguable case.
3. The ordinary requirements of issue estoppel were identified from Carl Zeiss Stiftung v Rayner [1967] 1 AC 853 and The Sennar (No 2) [1985] 1 WLR 490. Strict issue estoppel is inappropriate in children’s cases because children’s needs develop and the court must retain jurisdiction for their protection. The court agreed with Re B [1997] 1 FLR on that point.
4. The mother was bound by the 2002 order as to her own compromised claims. The order did not determine the child’s future housing needs. Those needs could be reconsidered because the existing accommodation did not provide a definitive home throughout minority and the child’s needs had changed.
5. Phillips v Peace 2 FLR 1212 was distinguishable. The court also noted that provision might alternatively be sought under the Matrimonial Causes Act 1973, including a lump sum or increased periodical payments for the child.