SW v RC

Child maintenance is not automatically limited to a Child Support Agency assessment. The assessment may provide a useful starting point, particularly in routine cases, but the court must determine what contribution is reasonable having regard to the child’s needs and the payer’s resources and lifestyle. Maintenance may properly be paid from capital or borrowing where the payer continues to sustain substantial expenditure on himself and his family. On appeal, the court should not interfere with a discretionary assessment unless there has been a material procedural irregularity, an error involving relevant or irrelevant matters, or a conclusion that is plainly wrong.

The father appealed against two decisions arising from cross-applications under Schedule 1 to the Children Act 1989. The first application sought a reduction in child periodical payments; the mother sought an increase. District Judge Green dismissed both applications and maintained the existing payments. District Judge Million later ordered the father to pay the mother a net sum of £17,250 in costs.

The father challenged the substantive maintenance decision, sought permission to appeal out of time, and appealed the costs order. The issues included the relevance of Child Support Agency assessment rates, whether maintenance could be paid from capital, the time for appealing where no formal order had been drawn, and the proper approach to costs in Schedule 1 proceedings.

1. Substantive appeal dismissed. The father failed to show that District Judge Green’s assessment was procedurally irregular, took account of irrelevant matters, failed to take account of relevant matters, or was plainly wrong. The appellate approach was governed by the principles in G v G (Minors: Custody Appeal) [1985] FLR 984, as summarised in Cordle v Cordle [2002] 1 WLR 1441.
2. Child Support Agency rates could be a useful rule of thumb and a starting point in routine cases. They did not impose a fixed ceiling. This was not a routine case, and the district judge was entitled to assess the father’s reasonable contribution by reference to the child’s needs and the father’s actual financial circumstances.
3. There was no principle preventing maintenance being paid from capital or borrowing. Payments made from accumulated or borrowed funds remained income in the mother’s hands for the child’s benefit, rather than a lump sum or other capital resource. The father had not shown that his ability to raise credit had reached its limit. The approach was consistent with Newton v Newton [1990] 1 FLR 33.
4. The appeal against the substantive decision had to be initiated within 14 days of the March 2005 determination under rule 4.22(3) of the Family Proceedings Rules 1991. The absence of a drawn order and the unresolved costs issue did not prevent the determination from taking effect. Permission to appeal out of time would in any event have been refused because of the delay, prejudice to the mother, the staleness of the evidence and the weak prospects of success. The reasoning in Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 supported treating a determination of a crucial preliminary issue as appealable, but did not assist the father on these facts.
5. Costs appeal dismissed. District Judge Million was entitled to regard the father’s delayed and inadequate disclosure as materially increasing the mother’s costs and to select a watershed after which each party should bear their own costs. The mother’s unsuccessful application did not require costs to follow the event. Relative hardship was a proper consideration in Schedule 1 proceedings brought for the child’s benefit. The costs decision was within the discretionary bracket and was not plainly wrong.

• High Court (Family Division): Both appeals dismissed. Permission to appeal out of time was refused.
• District Judge Green: Cross-applications to vary child maintenance were dismissed on 21 March 2005. No citation for the decision is stated in the judgment.
• District Judge Million: A net costs order of £17,250 was made on 26 June 2006. No citation for the decision is stated in the judgment.