P (A Child), Re

Under Schedule 1 to the Children Act, financial provision is for the benefit of the child, not for the personal benefit of a parent. A court must guard against a claim which is, in substance, disguised provision for the claimant parent. Housing or maintenance may be ordered for a parent only insofar as it benefits the child. The underlying living arrangements determine whether a parent is resident or non-resident for the purposes of the jurisdictional bar in section 8 of the Child Support Act. Where that bar applies, the court cannot circumvent it by ordering lump sums payable by instalments. Even if jurisdiction exists, the court must assess whether an order is genuinely required for the child’s benefit.

The mother applied under Schedule 1 to the Children Act for substantial financial relief against the father, including maintenance, refurbishment of the home in which she lived, and other expenses. The parties were unmarried and had one child, P. Although the order arising from earlier section 8 proceedings did not formally designate residence, P in reality lived with the father and had contact with the mother.

The mother argued that she required continued occupation of the father’s property and financial support in order to care for P and maintain contact. The father argued that the claim was principally for the mother’s own benefit, that the court lacked jurisdiction to make a maintenance order under section 8 of the Child Support Act, and that the mother could support herself. The central issues were the scope of Schedule 1 relief, the effect of the statutory jurisdictional bar, and whether the mother had any contractual right to remain in the property.

1. Disposition. The claim was dismissed. The mother had no contractual right to remain at Property B, and the court made no order for maintenance, housing or refurbishment.
2. Schedule 1 required consideration of all the circumstances and the specific factors in paragraph 4. The child’s welfare was important but was not paramount. The father’s obligations concerning housing and maintenance related to P, and to the mother only insofar as provision for her benefited P. The father had no legal obligation to provide a home for, or maintain, the mother personally.
3. The court was required to guard against a Schedule 1 claim which was in reality a disguised claim for the benefit of the parent. On the evidence, the mother’s claim was based on the unlikely prospect that P would return to live with her and was principally directed to securing the mother’s own housing and income.
4. The underlying reality of the care arrangements governed the application of section 8 of the Child Support Act. P lived with the father, so the mother was the non-resident parent for this purpose. The court therefore had no jurisdiction to make the requested maintenance order. It could not evade that restriction by ordering lump sums payable by instalments. Alternatively, even if jurisdiction existed, the circumstances did not justify maintenance payable by the resident parent to the non-resident parent.
5. A Schedule 1 order in favour of a non-resident parent could exceptionally be available where it was for the child’s benefit, as illustrated by Re S (Child Financial Provision) [2005] 2FLR 94. That jurisdiction appeared to have been exercised only rarely. It did not justify the extensive provision sought here.
6. The 2004 agreement was predicated on the mother being P’s principal carer while P lived with her. It did not confer a continuing contractual licence to occupy Property B. The argument based on Mexfield Housing Co-Operative Ltd v Berrisford [2012] 1AC was rejected.
7. The mother had an earning capacity substantially greater than her present income and was likely to be able to support herself. The father’s proposals for alternative accommodation and limited refurbishment were reasonable, but the mother had refused them without properly considering P’s welfare.

First-instance decision. No appellate history was stated in the judgment.