KSJ v WRW

In child-support proceedings, a lump sum or property adjustment order fixing a housing fund cannot be increased merely because property values have risen. A second application for a settlement of property is barred where Schedule 1, paragraph 1(5)(b) of the Children Act 1989 applies. A separate jurisdiction to make a further lump-sum order, such as for furnishing and equipping property, cannot circumvent that restriction. The court may give directions implementing an existing order and may impose procedural closure under section 91(14). Permission to appeal against discretionary decisions on child maintenance, case management and costs requires an arguable error of law or an impermissible exercise of discretion.

The appellant, the mother of a child, made four out-of-time applications for permission to appeal in a continuing dispute with the child’s father about housing, periodical payments, lump sums, case management and costs. The applications challenged decisions of Bennett J dated 5 November 2007, 9 May 2008 and 21 May 2008, and of Pauffley J dated 18 April 2008. The Court of Appeal also considered the effect of the refusal of an application under Taylor v Lawrence on the previously fixed housing fund. The central issues were whether the housing fund could be revisited, whether further directions could be made to implement existing orders, and whether the judges had erred in exercising their discretion.

1. All four applications were dismissed. Although they were out of time, the court considered them on their merits because they concerned financial support for a child.
2. The housing fund was fixed at £1.1 million following the earlier Court of Appeal order. The refusal of the Taylor v Lawrence application was final under CPR rule 52.17(7). In any event, Schedule 1 to the Children Act 1989 prevented a second application for a settlement of property order. Inflation or a change in property values did not justify increasing the fixed lump sum. The court retained jurisdiction to increase a separate furnishing and equipping fund, but that jurisdiction could not be used to circumvent the statutory restriction.
3. Bennett J was entitled to give directions implementing the existing housing orders, including directions identifying suitable properties, regulating objections and fixing a timetable for exchange and completion.
4. The section 91(14) order was a proper exercise of discretion. It regulated access to the court rather than barring it, because further applications could be made with permission. The judge had considered the matter carefully, had sufficient material before him and had explained his decision, consistently with Re P (a minor) (Residence order: Child’s welfare) [2000] Fam 15.
5. The decisions on periodical payments, the car, medical bills, the computer and other expenses disclosed no arguable error of law or improper exercise of discretion. The Court of Appeal’s function was supervisory, not a rehearing of the underlying financial dispute. Bennett J was also entitled to refuse separate representation of the child on the maintenance-variation application.
6. The costs orders involved broad first-instance discretions. Bennett J had correctly directed himself by reference to CPR rule 44.3 and made a well-founded no-order-as-to-costs decision. There was no breach of natural justice or Article 6.
7. The observations on recusal were obiter. The judge’s critical remarks and extensive knowledge of the long-running case did not, without more, demonstrate bias.
8. Re P (child: financial provision) [2003] EWCA Civ 837 did not assist on variation of periodical payments. Re C (A child; financial provision) was fact-dependent, non-binding and did not advance the appellant’s case. The stay was not continued beyond judgment, although further directions could be sought from Bennett J if required.

• Court of Appeal (Civil Division): Four applications for permission to appeal against decisions of Bennett J and Pauffley J were dismissed.
• High Court, Family Division: Bennett J made the orders dated 5 November 2007, 9 May 2008 and 21 May 2008. Pauffley J made the order dated 18 April 2008. No citations for those decisions were stated in the judgment.