FG v MBW

Under Schedule 1 to the Children Act 1989, the court must exercise a broad statutory discretion by having regard to all the circumstances, with the child’s welfare as a constant influence. An award may include provision recognising the commitment and sacrifice of the primary carer. Benefits, potential earnings, childcare costs, the parties’ standard of living, affordability, capital resources and obligations to other children must be assessed together. The award is not determined by a mathematical or formulaic approach. Where income and capital prospects are uncertain, periodical payments may properly be made subject to review. An adjourned housing-fund claim and protective disclosure orders may also be appropriate where future resources and disclosure present material risks.

The mother applied under Schedule 1 to the Children Act 1989 for financial provision for the parties’ son, including periodical payments, school fees, a lump sum and a housing fund. Earlier Schedule 1 applications had resulted in a consent order dated 30 September 2005 providing maintenance and school-fee contributions.

The mother alleged that the father had previously failed to disclose substantial income and capital connected with an investment company, and that he continued to have greater resources and prospects than disclosed. The father disputed his present income, capital prospects and ability to meet the sums sought. The issues included the appropriate level of maintenance, the treatment of benefits and prospective employment, private-school fees, the housing fund, a lump sum, review, and interim disclosure protection.

1. Statutory approach. The claim fell to be determined under Schedule 1 to the Children Act 1989. The court had a broad discretion to make financial provision for the child, having regard to the matters in paragraph 4. Following Re P (Child Financial Provision) [2003] 2 FLR 865, the child’s welfare was a constant influence, and an award could include an allowance for the primary carer recognising that person’s commitment, responsibility and sacrifice.
2. The court was required to consider the parties’ circumstances as a whole. Relevant matters included the standard of living and expectations during the relationship, the father’s present and anticipated income and capital, his expenditure and liabilities, the mother’s benefits and earning capacity, and the effect of childcare costs. The result was not to be reached by a mathematical or formulaic calculation.
3. The father’s liabilities to his other child could not, on the facts, be treated as fixed liabilities which reduced the provision for the applicant’s child. The other child had a financial safety net through his mother’s retained capital and shareholding, whereas the applicant’s child did not.
4. The father was ordered to pay periodical payments of £28,000 per annum, with RPI increases, from 4 March 2010, subject to further order. He was also to continue paying school fees and appropriately defined extras. The possibility of boarding school was not excluded on present affordability evidence, but schooling and affordability issues required future review.
5. The claim for a lump sum for indebtedness, one-off expenditure and a car was refused on affordability grounds. The housing-fund application was adjourned. A review hearing was directed for June or July 2013, with earlier directions.
6. Given the risk that income or capital might be realised without disclosure, the father was required, subject to any equivalent undertaking, to give notice of proposed significant dispositions and investments and to provide tax returns and audited accounts. The mother was required to report periodically on employment efforts, childcare, benefits and medical matters.