MT v OT

In applications under Children Act 1989, Schedule 1, provision must be assessed by reference to the children’s needs and the carer’s continuing role, rather than by applying principles governing spousal financial remedies. The court may replace a property previously provided for the children with a suitable substitute. That substitution is not a new settlement of property. The court should assess the fund needed for the children’s remaining education and allow for uncertainty where justified by the evidence. It should not assume that a carer has an earning capacity without adequate evidence, particularly where the employment history is limited and caring responsibilities remain substantial.

The parents had twin daughters who were approaching the end of secondary education. They had litigated extensively since 2003, and existing arrangements involved maintenance, security and guarantees for the children’s benefit.

The mother sought replacement housing and further lump-sum and periodic provision until the children completed tertiary education. The father accepted that a capitalised fund should replace the existing arrangements but disputed the proposed housing and expenditure. The central issues were the court’s jurisdiction to permit replacement housing, the appropriate level and duration of provision, and whether the mother should be treated as having an earning capacity.

1. Applications and housing. The mother’s applications were determined by making lump-sum and periodic provision for the children and permitting relocation. Replacing the existing property with another suitable property was a substitution, not a second settlement of property. The court therefore had jurisdiction to make the order sought. The replacement property remained subject to the father’s veto if it would not represent a proper investment of his funds.
2. Assessment of provision. The court assessed the children’s needs holistically, taking account of schooling, tertiary education, accommodation, tuition, professional costs, property expenses and the mother’s role as carer. Provision under Schedule 1 differs in kind from provision made to a spouse in financial remedy proceedings. The children’s need for a carer diminishes as they grow older, but their need for a home continues during tertiary education. The resulting fund was £917,062 plus interest, with a further £100,000 reserve held by the mother’s solicitors and usable only by agreement or further order.
3. Duration and uncertainty. The court selected a five-and-a-half-year period for maintenance and property expenses, allowing for secondary education, a possible gap year and tertiary education. It declined to assume both a gap year and the longer possible university course where each contingency was uncertain. Any surplus was to be returned to the father if the children ceased to be dependent earlier than anticipated.
4. Earning capacity. The court refused to assume that the mother could obtain employment. There was no adequate evidence of realistic opportunities for a 50-year-old Nigerian-qualified lawyer with an almost non-existent employment history in England. Her continuing commitment to the children also impeded significant earnings.