TK v LK

I am concerned with the final hearing of an application under CA 1989 Schedule 1 (‘Schedule 1’) dated 8^th June 2022 brought by TK against LK in respect of their son, Child A.

In this judgment I shall refer to the parties as ‘F’ and ‘M’ respectively. No discourtesy is intended.

F was represented by Miss Sassa-Ann Amaouche instructed by Rayden Solicitors. M acted in person (as she had throughout these proceedings). She was held in HM Prison X and now HM Prison Y for reasons I set out below.

F is English. M is a national of Country A, but speaks and writes English to a high standard.

Since allocation of these proceedings to me I have sought to ensure that M is not disadvantaged because (for example) it takes time for post to reach her and she has no access to either email or the internet. I required all documents to which reference was to be made to be sent to M by first class post no later than seven days in advance of each hearing and also required that F’s solicitors wrote to M after each hearing summarising what I had ordered as an accompaniment to the formal order. I also required F’s solicitors to send M a copy of the relevant parts of Schedule 1.

At the outset of the final hearing M confirmed she had received Miss Amaouche’s position statement, her authorities bundle, the two hearing bundles, and F’s Forms H1 and N260. M had not prepared a position statement of her own.

I am satisfied that as a result of these measures M (i) was able to take a full part in these proceedings; and (ii) has not been disadvantaged notwithstanding she has represented herself. I believe I have a full understanding of her case.

On 6^th June 2023 F’s solicitors wrote to the court (as I had directed on 4^th May 2023) setting out the special measures they sought on F’s behalf in accordance with FPR 2010 Part 3A and PD3AA. On 9^th June 2023 M stated that she had no comments to make in response. I therefore put these measures in place.

The final hearing took place entirely remotely rather than on a hybrid basis. I directed this for two reasons namely (i) M’s imprisonment; and (ii) it allowed special measures to be put in place more effectively (for example F’s camera remained turned off throughout the hearing).

I am grateful to the staff at HM Prison X and HM Prison Y who facilitated M’s attendance and provided facilities for the sending and receipt of documents.

In advance of the final hearing I was provided with a 313-page main bundle and a 610-page supplemental bundle. The purpose of the supplemental bundle was to ensure that M had all relevant documents to hand.

By way of pre-reading I read the main bundle but I only read documents in the supplemental bundle if invited by either party to do so (which on F’s part was to read in full the three judgments of His Honour Judge ZA in the public law children proceedings to which I refer below). I was taken to specific documents in the supplemental bundle during the course of the hearing.

I acknowledge that, as M has consistently maintained and as she confirmed in her oral evidence, she does not accept the factual findings made in the public law proceedings (and has unsuccessfully sought to challenge the same on at least one occasion). However the findings stand and I consider I am bound by them for the purposes of this application.

The final hearing was listed on 4^th December 2023 with a time-estimate of four days. F gave his evidence on the first day and M on the second day. I was due to hear submissions on the third day and give judgment on the fourth. However on the morning of the third day I acceded to an unopposed application made on F’s behalf to adjourn to allow for the full probate file of M’s late father to be obtained from the courts of Country A, translated into English, and disclosed into the proceedings. I will set out the relevance of this later.

The case therefore went part-heard to 13^th February 2024 with a time-estimate of two days. The hearing on that date was ineffective as it transpired that M had not received a copy of the probate file or the SJE report (also in the language of Country A and translated into English) in relation to M’s late father’s will. This was as a consequence of M’s move from HM Prison X to HM Prison Y. Arrangements were therefore made for these documents to be couriered to her that day. Unfortunately these documents were not handed to her by the prison staff until around 11 am on 14^th February 2024. M sought a further adjournment in order for her to have a proper opportunity to consider the same and given their centrality to F’s case this application was (reluctantly) not opposed on his behalf.

The case therefore went part-heard for a further half-day on the basis that I would then reserve judgment.

On 5^th March 2024 I therefore heard further evidence from M in relation to the probate file and the parties’ respective submissions.

The two adjournments were not ideal given they delayed the conclusion of the case for over three months. However they were clearly necessary in order for the case to be heard and determined fairly.

In this judgment I have not referred to every matter raised by the parties in evidence or in submissions. I have however borne all that I read and was said to me in mind.

I remind myself that the burden of proof is on the party who seeks a particular finding and that the standard of proof is the balance of probabilities; no more and no less.

I was conscious throughout M’s evidence of her privilege against self-incrimination. I reminded her of this. In the absence of her being represented I said to Miss Amaouche I would not entertain being asked to make any findings that risked incrimination. Miss Amaouche confirmed she would not (and did not) seek findings in relation to criminal behaviour.

F is in his early 60s and M is in her mid 50s. The parties’ relationship began in 2010, they entered a pre-marital agreement in 2011, and married a few weeks later. They separated in 2013. It was therefore a short marriage of only a little over two years.

M issued a divorce petition. I am unaware of its date. Decree Nisi was made in 2014 and was made Absolute in 2015.

On 26^th February 2015 District Judge Griggs made a final financial remedy order by consent (both parties being legally represented at that time). This was a simple dismissal of both parties’ respective claims and a clean break. I accept F’s evidence that such assets that either party had at that time were modest (which is corroborated by the schedules to the pre-marital agreement).

After the parties separated Child A’s main home was with M but they spent time with F. I understand that there were protracted and high conflict private law children proceedings in relation to both live with’ and ‘spend time with’ arrangements. In his judgment of 24^th July 2019 (to which I refer further below) His Honour Judge ZA said at [30] that “I do not believe that anyone can dispute that this is a high conflict intra-parental dispute” and that Child A has never had the solace of a lengthy ‘normal’ interlude in the dispute between his parents as “[n]o sooner is one area of controversy closed before another presents itself.” At [78] he referred to an “extreme level of animosity and hatred” between the parties. In his judgment of 10^th March 2022 (to which again I refer below) he referred at [12] to “prolonged and bitterly contested” private law proceedings.

In April 2016 His Honour Judge ZB refused M’s application to relocate with Child A to Country A. About eight weeks later M unilaterally removed Child A from his school in County A where both parties were then living and moved with him to County B, a significant distance away. F received no prior notice of this removal and has confirmed that if approached he would not have so consented. The relocation led F to resign from his employment and he moved to County C in February 2017 to retrain for a different role. Thereafter in February 2018 when an opportunity to work from home arose, F moved to County B.

M subsequently made allegations that F had sexually assaulted Child A (the initial referral to social services about allegedly inappropriate behaviour being on 22^nd May 2018). Child A underwent a child protection medical on 10^th August 2018. On 20^th August 2018 they were voluntarily accommodated with their childminder before returning to M’s care on 21^st September 2018. F’s last supervised contact with Child A was on 22^nd August 2018. F was arrested on 4^th September 2018 (I assume because of M’s allegations against him) and held on bail for over six months. He was signed off work for 16 months as medically unfit.

Public law children proceedings followed from November 2018 commencing with an application for an interim care order which was made with Child A remaining in M’s care. Child A was the subject of two ABE interviews on 20^th September 2018 and on 8^th May 2019 after they had made even more serious allegations against F of sexual assault involving anal and/or oral rape.

On 20^th June 2019 M was arrested. The reason(s) for this are not given in the public law judgments. Child A was removed from M’s care by a Police Protection Order and placed in foster care. M was subject to police bail with conditions which initially prevented her contact with Child A after which there was no parental contact.

On 24^th July 2019 at a threshold hearing His Honour Judge ZA did not find the alleged sexual abuse to be proven but found parts of the local authority’s amended threshold schedule proven. The judgment records at paragraph [268]:

M sought permission to appeal the findings. Permission was refused on 30^th October 2019.

Indirect contact between F and Child A began in December 2019 and on 21^st July 2020 Child A had their first direct contact with F in two years. It was initially supervised and from 1^st November 2020 was unsupervised. M sought contact which I believe was refused by His Honour Judge ZA in June 2020. M was then arrested again in September 2020 because of allegations that she was arranging a criminal offence involving Child A.

Thereafter M carried out a criminal offence, the victim of which was Child A. The details of the criminal offence have been redacted from this version of the judgment. Child A was subsequently diagnosed with PTSD and has required ongoing psychiatric support. The events of that day are set out in full in the judgment of 17^th February 2021 to which I refer below.

M pleaded guilty to the criminal offence (but subsequently made an unsuccessful attempt to vacate her plea) and was thereafter sentenced to a long custodial sentence. There is no current appeal pending against conviction or sentence (I believe that M may have previously sought permission to appeal one or both) nor any application before the Criminal Cases Review Commission. Although the bundle did not contain M’s certificate of conviction, she confirmed she had been so convicted and sentenced. A lifetime restraining order was also imposed to protect Child A. The Crown Court put in place reporting restrictions which remain in force.

On 17^th February 2021 a care plan was approved by His Honour Judge ZA at the outcome/welfare hearing for Child A to remain in long-term foster care (with a view to possible parental reunification with F) and to have weekly contact with F. This began in April 2021 at one night per week and increased to two nights from October 2021. An order was also made under CA 1989 s34(4) which allowed the local authority to refuse M from having any contact with Child A.

In his judgment of 17^th February 2021 His Honour Judge ZA stated at [76] that M “is an intelligent, ruthless and determined individual, manipulative and, in my judgment, devious” and described “how potentially dangerous is the mother’s capability.”

The stress of the criminal offence led F to resign from his employment. He started working in a different role in April 2021.

In August 2021 F acting in person applied to discharge the final care order under CA 1989 s39. On 10^th March 2022 His Honour Judge ZA dismissed the application as being premature. At paragraph [16] of his judgment he stated that “[t]he transcribed sentencing remarks of the Crown Court judge … reveal the full horror of [the criminal offence] …”

A CA 1989 s91(14) order was made by consent on 10^th March 2022 in relation to both parties to last until 31^st July 2024.

Thereafter until 2^nd June 2022 Child A spent three nights a week with F. This then increased to five nights a week and on 10^th August 2022 Child A returned fully to F’s care.

F and Child A now live in an area of the country that has not been disclosed to ensure that M is not able to locate them.

On 7^th September 2023 on application by the local authority His Honour Judge ZA (i) discharged the care order made on 17^th February 2021 with immediate effect; (ii) made a ‘live with’ order in favour of F; and (iii) ordered indirect contact (on a one-way basis) between M and Child A by way of F sending an annual summary of Child A’s progress but in all other respects there be no contact between M and Child A.

Given M’s imprisonment the responsibility – financial and otherwise - of raising Child A during the remainder of their minority will fall on F and him alone.

F initially filed an application on 9^th January 2022 when acting in person. He stated at paragraph 20 of his witness statement dated 1^st November 2023 that he made the application following the death of M’s father. He understood M and her brother to be the sole beneficiaries of their late father’s estate which included a property in Country A which was to be sold.

Paragraph 9 of Ms. Amaouche’s Position Statement dated 26^th July 2022 states “[i]t is unclear whether that Form A was ever issued.” I note that paragraph 69 of the judgment of His Honour Judge ZA dated 10^th March 2022 states this application was in fact struck out by order of a District Judge. I assume that this was because of the CA 1989 s91(14) order.

In May 2022 F instructed his current solicitors and this application was filed dated 8^th June 2022. A case management order was made by District Judge Jones-Evans on the court’s own initiative on 16^th June 2022. On 27^th July 2022 F applied for permission to make the application given the CA 1989 s91(14) order. Permission to pursue the application was granted by Francis J on 14^th November 2022 who also gave directions pursuant to r27.11 and PD27A as to press attendance.

I heard Case Management Conferences on 4^th May 2023 and 4^th July 2023 (and at the latter hearing I directed that the case should not be referred to an FDR Appointment on the basis that pursuant to r9.15(4)(b) there were “exceptional reasons” which made such a referral inappropriate). I also made orders on paper on 20^th June 2023 (which included a Third Party Disclosure Order against Q Bank) and on 30^th October 2023.

At the hearing on 4^th July 2023 M confirmed she did not intend to cross-examine F at the final hearing. In my order I gave her the opportunity to reconsider the same, but she did not do so. She confirmed her position remained the same at the outset of the final hearing. M also chose not to expand on her written evidence by way of evidence-in-chief or in re-examination although I gave her the opportunity to do so.

F’s open position was set out on 27^th June 2023 (and amended in his witness statement dated 1^st November 2023 and amended further in Miss Amaouche’s closing submissions). He seeks the following orders:

In her closing submissions Ms. Amaouche quantified F’s claim as follows – M’s interest in her late father’s estate should be taken to be £341,715 from which she should meet F’s N260 costs of £85,284 in full. The non-housing elements as set out above total £27,500 which leaves £228,931 to be paid to F. F would then have this sum, the £85,284 paid in costs and £99,152 from his late mother’s estate (i.e. a total of £413,367) from which he would have to pay £21,469 in unpaid costs leaving £391,898.

M’s open position dated 18^th May 2023 (which she maintained in evidence) was as follows:

In her closing submissions M said that if she did receive anything as a beneficiary of her late father’s estate she would wish in the first instance to use the capital to repay her family and friends who had assisted her in meeting her legal costs in the “barrage” of court cases F had brought against her “relentlessly” (a figure she estimated to be in excess of €100,000) and her obligation to Child A should be limited to £210 pm being the same CMS assessed figure that F used to pay her for Child A’s benefit. If there was to be a capital award M said that it should be held in trust for Child A, administered by someone other than F alone, and should either be paid to Child A on reaching age 25 or revert to her as there was no justification for long-term provision.

The jurisdiction under Schedule 1 to consider a further lump sum exists after a clean break in divorce proceedings involving the same parties as the application of issue estoppel has been disapproved in cases involving children - MB v KB [2007] 2 FLR 586 per Baron J at [25]. In PK v BC (Financial Remedies: Schedule 1) [2012] 2 FLR 1426 per Moor J at [13] it was said that the circumstances have to be “exceptional” because:

In MG v FG (Schedule 1: Application to strike out; Estoppel; Legal Costs Funding) [2016] EWHC 1964 (Fam) after citing the above paragraph Cobb J at [28] warned of the “danger that focusing on the particular language of a given judgment may obstruct the proper exercise of the relevant jurisdiction, and I must guard against doing so” - and referred to what Wilson LJ (as he then was) had observed in Currey v Currey (No. 2) [2007] 1 FLR 946 at [19] - before stating “[t]hat said, I do regard the cases in which a second bite would be permitted as few and far between – they will indeed, in my view, be the exception rather than the rule.”

I do not need to consider further whether the circumstances for the making of an order under Schedule 1 after a clean break in divorce proceedings have to be “exceptional” as I have no doubt that the circumstances of this case since the order on 26^th February 2015 are exceptional given the criminal offence committed by M against Child A, M’s subsequent lengthy imprisonment, and that Child A now lives with F. I am therefore satisfied that the Schedule 1 jurisdiction is properly engaged.

In deciding whether to exercise its powers under Schedule 1 and, if so, in what way, the court must have regard to “all the circumstances” including those matters set out in paragraph 4(1). I bear all of these factors in mind. There are obvious similarities between this paragraph and MCA 1973 s25. However the paragraph does not explicitly refer to inter alia the welfare of the child, the parties’ conduct, standard of living, or the duration of the parties’ relationship.

Under Schedule 1 the significance of these and other matters have been judicially developed as part of “all the circumstances”. In respect of ‘welfare’, this is an overarching factor notwithstanding its absence from paragraph 4(1). In J v C (Child: Financial Provision) [1999] 1 FLR 152 Hale J (as she then was) stated at p156 that it “must be one of the relevant circumstances to be taken into account when assessing whether and how to order provision”. This was amplified in Re P (Child: Financial Provision) per Thorpe LJ at [44] where he said that “welfare must be not just ‘one of the relevant circumstances’ but, in the generality of cases, a constant influence on the discretionary outcome”. I therefore have Child A’s welfare at the forefront of my mind.

The extent to which the other non-statutory factors must be considered will vary from case to case.

One of these other factors is conduct. It is a consequence of the court’s focus on the child’s needs and requirements under Schedule 1 rather than those of their parents that conduct is even less likely to be relevant than it may be under MCA 1973 (see A v A (A Minor: Financial Provision) [1994] 1 FLR 657 per Ward J (as he then was) at p664 - “Conduct, or more accurately, misconduct, which is not a specific factor in the para 4 checklist as it is in the Matrimonial Causes Act, s 25, checklist, is therefore material only as a hazard light which will flash throughout my journey down the rest of para 4” - and Re S (Unmarried Parents: Financial Provision) [2006] 2 FLR 950 where Bennett J was criticised by the Court of Appeal at [15] for having lost sight of the child’s needs due to his focus on the mother’s conduct).

However, it is clear that particularly egregious conduct can be taken into account. For example in O v P (No 2) (Sch 1 Application: Stay: Forum Conveniens) [2015] 2 FLR 77 Baker J (as he then was) stated as follows:

The authorities in relation to conduct under MCA 1973 s25(2)(g) are therefore relevant.

As Moor J observed in R v B and Others [2017] EWFC 33 at [85] “[c]onduct features in section 25(2) without a gloss.” However as he also said at [81] “[c]onduct is only relevant in a few cases”. In AF v SF (Dynastic Trust: Needs-Based Award) [2020] 1 FLR 121 the same judge succinctly summarised the position under MCA 1973 in the following way:

Conduct was considered in detail in Tsvetkov v Khayrova [2023] EWFC 130 per Peel J. At [43] he stated that at ‘stage one’ a party asserting conduct must prove:

At [46] ii) Peel J stated that the reason for this is:

In Goddard-Watts v Goddard-Watts [2023] 2 FLR 735 Macur LJ at [70]-[74] considered whether the frauds perpetrated by the husband might constitute conduct within the meaning of s25(2)(g), and, if so, then how, if at all, that ought to bear upon the court’s consideration of the case. She listed the authorities to which the court had been referred which included OG v AG (Financial Remedies: Conduct) [2021] 1 FLR 1105 where Mostyn J had said at [34] that “[t]he authorities clearly indicate that [gross and obvious personal misconduct] would only be reflected where there is a financial consequence to its impact”. Macur LJ observed at [71] that “the principle and accepted view to be derived from these authorities is that the misconduct envisaged by section 25(2)(g) must necessarily be quantifiable in monetary terms rather than seen as a penalty to be imposed against the errant partner, and that the 'orthodox approach' to litigation misconduct is to be met by an award of costs”. This is why (for example) in KA v LE [2023] EWFC 266 (B) Deputy District Judge Harrop observed at [72] that “However one may feel about it, the case law at present is clear that personal misconduct will only be taken into account in very rare circumstances and only where it has had financial consequences …” and referenced OG v AG (Financial Remedies: Conduct).

In Goddard-Watts v Goddard-Watts Macur LJ noted at [71] that OG v AG (Financial Remedies: Conduct), decided on 29^th July 2020, “had not been reported and was not cited in the latest Court of Appeal authority on the point, TT v CDS [2021] 1 FLR 996, decided in September 2020.”

Macur LJ concluded at [74] as follows:

It is arguable that by these comments Macur LJ may have called into question the “accepted view” that conduct must be identifiable or quantifiable in monetary terms in order to be relevant. Her Honour Judge Reardon may have expressed similar reservations in DP v EP (Conduct; Economic Abuse; Needs) [2023] EWFC 6. At [34] she stated that “[r]ecent cases where it appears that conduct without a financially measurable consequence has impacted on the distribution exercise are rare, but exist” referring to K v L [2010] EWCA Civ 125 (a refusal of permission to appeal by Wilson LJ (as he then was) where the husband had pleaded guilty to counts of sexually assaulting the wife’s grandchildren, of taking indecent photographs of one of them, and of related offences). Later at [153] having referred to Mostyn J’s observation in OG v AG (Financial Remedies: Conduct) that in order to sound in the ultimate distribution, s25(2)(g) conduct must have “financially measurable” consequences, Her Honour Judge Reardon stated at [155] that “too narrow an interpretation of s 25(2)(g) would render the provision nugatory” and “[i]t is difficult to imagine a scenario in which consequences which are truly financially measurable have not already been taken into account under either s 25(2)(a) (resources) or s 25(2)(b) (needs)” and concluded at [156] “there must be some scope for conduct which has had consequences to be reflected in the ultimate division of assets, even where those consequences are not financially measurable.” Deputy District Judge Harrop’s choice of words “However one may feel about it, the case law at present is clear ...” in KA v LE at [72] is also of note.

I am aware of two other cases where conduct was found to be relevant and where there was no identifiable financial impact. First, in Al-Khatib v Masry [2002] 1 FLR 1053 the court took into account the misconduct of the husband in abducting the children of the marriage. Munby J (as he then was) stated at [103] that “[r]eferring to Rayden and Jackson Divorce and Family Matters (Butterworths, 17th edn), paras 21.60–21.62, Mr Mostyn asserts, and Mr Deacon does not dispute, that conduct under s 25(2)(g) of the 1973 Act does not have to have a financial consequence for it to be taken into account” - and he agreed that “the husband’s conduct in abducting the children and depriving … them and the wife of that most basic human right, their mutual society, falls squarely within the class of case contemplated by Parliament” when enacting the ancillary relief provisions. This case therefore also supports the proposition that conduct aimed at a child of the family might amount to conduct such that it would in the opinion of the court be inequitable to disregard. This proposition has obvious relevance to the present case.

Second, in FRB v DCA (No. 2) [2020] EWHC 754 (Fam) it was argued at [180] that conceiving “a child by another man and keeping that secret (thus inducing the husband to commit both financially and emotionally to another man’s child) was misconduct”. Cohen J concluded at [193] that the wife’s action in allowing the husband to bring up the child in the belief that he was the natural father was conduct (“emotional damage to H of the sort inflicted by W” at [197]) so egregious that it would be inequitable to disregard before stating that “[h]ow I take it into account seems to me a much more difficult issue” and at [196] that “[t]here is no guidance in reported authority as to how this sort of conduct should be reflected.”

I do not have to consider further the question whether conduct – assuming it passes the high/exceptional threshold - may only be reflected where there is a measurable financial consequence. For reasons that I shall set out later I am wholly satisfied that in this case there is both conduct that passes this threshold and such a causative link.

At [44] of Tsvetkov v Khayrova Peel J stated that if ‘stage one’ is established, at ‘stage two’ the court “will go on to consider how the misconduct, and its financial consequences, should impact upon the outcome of the financial remedies proceedings, undertaking the familiar s25 exercise which requires balancing all the relevant factors.”

In S v S (Non-Matrimonial Property: Conduct) [2007] 1 FLR 1496 – the case from which the need for a ‘gasp’ rather than ‘gulp’ factor is derived – Burton J observed (at [41]) that “[t]here is no real guidance as to what would be the effect if I concluded that there has been such conduct by the respondent as it would be 'inequitable to disregard'”. He recorded that it had been “described by [counsel for the applicant] Mr Mostyn QC as a “moral test involving no particular science”.” He noted that “[t]he exercise of such a sweeping power, which could deprive a party of all entitlement, or multiply or magnify what would otherwise be the entitlement of the other party, is of concern to me” and that it ought to be regulated by guidance.

Burton J then referred to the approaches of two first instance judges with the caveat that “they may neither of them comply with what the court is intended to do under s25 of the 1973 Act” namely (i) Al-Khatib v Masry [2002] 1 FLR 1053 where Munby J (as he then was) stated that ‘conduct’ could drive him to “the very top end of the applicable discretionary bracket applicable to the case”; and (ii) H v H (Financial Relief: Attempted Murder As Conduct) [2006] 1 FLR 990 where Coleridge J stated at [44] that “the court should not be punitive or confiscatory for its own sake” but that the ‘conduct’ is “a potentially magnifying factor when considering the wife's position under the other subsections and criteria. It is the glass through which the other factors are considered.”

In S v S (Conduct: Pensions) [2022] EWFC 176 His Honour Judge Robinson at [26] cited the above from H v H (Financial Relief: Attempted Murder As Conduct) – which continues “[i]t places her needs, as I judge them, as a much higher priority to those of the husband because the situation the wife now finds herself in is, in a very real way, his fault" - and stated that “I entirely accept and apply this observation. My first priority is to consider the Wife's needs, and only consider those of the Husband when I am satisfied that hers have been met.” This is consistent with TT v CDS per Moylan LJ at [80] (albeit in relation to litigation conduct) “I agree with Moor J in R v B [and Others) [2017] EWFC 33] when he said that, if required to achieve a fair outcome, the court 'must be entitled to prioritise the [needs of the] party who has not been guilty of such conduct'”.

It may be that in Goddard-Watts v Goddard-Watts insofar as there is a material difference between the approaches advocated in H v H (Financial Relief: Attempted Murder As Conduct) to which the court was referred, and in Al-Khatib v Masry, to which it is not clear that the court was referred directly, Macur LJ’s reference at [74] to conduct as a “glass” constitutes an expression of support for the former in preference to the latter and therefore provides to a degree the guidance that Burton J sought (although I observe that in K v L at [12] Wilson LJ stated that he did not think that the Court of Appeal “would feel able or willing to give the sort of general guidance for which Burton J called”). In any event I intend to adopt this approach in this case.

The court has ordered lump sums under Schedule 1 for a wide range of purposes (as a consequence of its expansive interpretation of “for the benefit of the child”) including:

There is therefore reported authority to support there being jurisdiction for the court to make all of the various lump sums sought by F on Child A’s behalf.

In Phillips v Peace [2005] 2 FLR 1212 per Singer J the mother argued the court could award a lump sum subject to a condition that it be used towards housing which would in due course revert to the father in accordance with the terms of the original settlement. It was therefore suggested that the lump sum provisions could be used to circumvent the prohibition against ordering a second settlement of property. This was rejected on the basis that it would be a misuse of the court’s power. The judge held at [27] that lump sums are not designed to revert to the payer but are paid “once and for all and are used to reimburse past expenditure or are spent on current or future needs. To the extent that whatever was purchased with the lump sum is not consumed it will be retained for or by the child”. Lump sum orders therefore do not revert to the paying party.

Pursuant to CA 1989 paragraph 1(2)(d) and (e), the court may make an order requiring a settlement or transfer of property to be made for the benefit of a child. Although the duration of such orders is not expressly limited by statute, as it is for periodical payments orders by paragraph 3 (1) and (2), there is a long line of authorities to the effect that the power to order such provision is in practice limited.

By way of one example, in MT v OT (Financial Provision: Costs) [2008] 2 FLR 1311 Charles J stated that as a matter of statutory construction the powers in paragraph 1(2)(d) and (e) should only be exercised so as to confer an absolute interest on the relevant child(ren) in special circumstances relating to the child(ren) – such as suffering from a disability - and not, for example, the extreme wealth of a father or that the child might not benefit on his death.

Further, in Re N (Payments for Benefit of Child) [2009] 1 FLR 1442 per Munby J (as he then was) stated at [78]:

This restriction was considered in UD v DN (Schedule 1, Children Act 1989; Capital Provision) [2022] 2 FLR 308. Moylan LJ (with whom King and Newey LJJs agreed) allowed an appeal against Williams J’s settlement of property order whereby the father was required to settle a property in London in trust for the benefit of the parties’ two younger children, then aged 19 and 14, whereby at the end of the trust period - which included the date on which the youngest child attained the age of 18 or 6 months after they completed full-time tertiary education - 6.5% of the gross sale price or market value of the home "shall be held on trust for the benefit of the children

In addressing the question as to whether, on the evidence and in the particular circumstances of this case Williams J had been right to make that award Moylan LJ stated [at [76]:

Moylan LJ then concluded that there were no such circumstances which could justify the settlement that had been made in favour of the children. In particular (at [80]) (original emphasis):

Moylan LJ further stated (original emphasis):

In my view following UD v DN (Schedule 1, Children Act 1989; Capital Provision) any assessment of what properly constitutes “special” or “exceptional” circumstances must focus on dependency rather than vulnerability. This distinction is an important one. At [82] Moylan LJ stated that Williams J supported his decision “by interpreting the use of the word 'dependency' in the authorities as connoting 'some form of vulnerability or need continuing from childhood into adulthood which can be remedied by capital provision'. In my view, this does not support his decision because it is far too broadly expressed a proposition …”. Whilst they are likely to overlap, they are not one and the same as ‘vulnerability’ is a much broader category than ‘dependency’. Whilst ‘dependent’ children may well also be ‘vulnerable’, dependency in my view implies some continuing and quantifiable financial need. Vulnerability is a broad spectrum on which many people fall, but not everyone with a vulnerability is ‘dependent’ in the sense of requiring financial support.

I further take the view that as a consequence of UD v DN (Schedule 1, Children Act 1989; Capital Provision) the relevance of the conduct of the paying party to the question of long-term financial provision is solely to the extent it creates an ongoing dependency and/or financial need.

I shall consider whether there are such “special circumstances” later in this judgment.

M’s father died in November 2021. On 14^th November 2022 Francis J directed inter alia that “[f]or the avoidance of doubt [M’s] Form E shall include at paragraph 2.14 full details of any inheritance she has received and/or will receive from her late father’s estate”. In her Form E dated 25^th November 2022 paragraph 2.14 was completed with “N/A”. In her Replies to Questionnaire dated 5^th February 2023 M stated at 9 a) that “I have not received and do not expect to receive any inheritance from my late father’s estate” and in her Replies to Schedule of Deficiencies dated 22^nd April 2023 she stated that she had no documentary evidence of the same.

F’s case is (and always has been) that M is a beneficiary under the estate of her late father and that she will receive and/or has an entitlement to receive capital from this source. It is said that M will have access within the foreseeable future to one-half of late father’s estate. Further F’s case is that M has failed to make a full and frank disclosure of the position and the relevant documents and she has done so to frustrate his claims on Child A’s behalf.

On 4^th July 2023 I ordered inter alia that (i) Mr. LM (who M’s brother, DS, had confirmed on 23^rd May 2023 was the Country A lawyer who was the executor of M’s late father’s estate) be invited to provide an explanation as to the current position and provide a copy of the will and estate accounts (or their equivalent in Country A); and (ii) if this information was not provided M was invited to seek the same information directly from her brother by way of a witness statement. My order stated that if M declined to seek this information and/or file a witness statement from her brother, she was to explain at the final hearing why she had declined to assist the court. My order also warned M that depending on whether the information was provided and if not the reasons for this F may invite me to draw adverse interferences against her.

On 19^th July 2023 Mr. LM confirmed that he had been appointed the executor of M’s father’s estate by the probate court of Country A. However he said that he would not provide any information until expressly requested to do so by the probate court.

As F records at paragraph 27 of his witness statement of 1^st November 2023 he has sought and obtained legal advice from an attorney of Country A, Mr. BM.

On 22^nd November 2023 F’s solicitors received a copy of M’s father’s will dated 3^rd April 2019 which was subsequently the subject of a certified translation. It records inter alia under (i) “Inheritance” that “I appoint my children as my heirs in equal shares and my aforementioned son as an exempt preliminary heir. In turn, my daughter [M] will inherit after my son. The succession will occur upon the death of my son DS”; and (ii) “Execution of wills” that “After my death, I order the permanent execution of my son’s intended inheritance”, “The executor has to … manage my son’s inheritance permanently until his death and then settle it”, and “The executor of the will shall pay my son, at his/her reasonable discretion, an appropriate monthly allowance …”. The will also stated the current value of assets net of liabilities to be €500,000.

M’s father’s estate includes a property in Country A which is in the process of being sold. The property is being marketed for c. €450,000.

I understand Mr. BM first saw the probate file early on 6^th December 2023 (i.e. on Day 3 of the final hearing) and provided a copy of it (or parts of it) on that date to F’s solicitors. I declined Miss Amaouche’s request to admit the file piecemeal and anticipated that M may be recalled to be questioned thereon. Hence I acceded to F’s application to adjourn part-heard. As part of the directions made when I did so I admitted the file and its certified translation into evidence.

It can be seen from the file (which I saw on 13^th February 2024) that:

As part of the directions made when I adjourned the case part-heard on 6^th December 2023 I directed a witness statement from F’s solicitors setting out F’s interpretation of M’s status under her father’s will and the basis for that interpretation. The statement duly filed by Ms. AP dated 7^th December 2023 said:

On 21^st December 2023 M stated in response that she had no comments to make as she did not have the required qualifications to understand the same.

On 31^st January 2024 I acceded on paper to an application made by F’s solicitors on 23^rd January 2024 for the instruction of an SJE. The evidence in support of the application stated inter alia:

On 14^th February 2024 when the case was adjourned part-heard again I gave M the opportunity to state within seven days whether she objected to the SJE report being admitted into evidence and, if she did, I would determine the issue on paper. On 29^th February 2024 it was confirmed by F’s solicitors that they had received no correspondence from M as to whether or not she objected. Therefore and in accordance with my order the report was sent to me.

Mr. JV was appointed as expert. The letter of instruction was dated 31^st January 2024. His report is dated 8^th February 2024. In short he confirms the views expressed by Mr. BM namely that M and her brother are the two equal beneficiaries of their late father’s estate, the division is to be carried out by the executor, with M to receive her one-half of the estate outright and her brother not free to dispose of his share but to receive a monthly pension and further payments at the discretion of the executor.

Miss Amaouche seeks that I draw adverse inferences against M on the basis of her financial (non) disclosure principally (but not exclusively) in relation to her late father’s estate.

The leading case is Moher v Moher [2020] 1 FLR 225 where the Court of Appeal approved (with one modification) the principles that had previously been set out in NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211 per Mostyn J at [16]. The Court of Appeal rejected the appellant’s assertion that a judge is required to evaluate the scale of the undisclosed wealth by providing a figure or a bracket of figures. In so doing Moylan LJ offered the following “broad conclusions”:

In AF v SF (Dynastic Trust: Needs-Based Award) [2020] 1 FLR 121 Moor J stated as follows:

In Ditchfield v Ditchfield [2024] 1 FLR 687 Peel J at [15] referred to Moher v Moher and continued:

I accept the submission that M has failed to provide full and frank disclosure. I reach this conclusion for the following reasons:

I am fortified in my conclusion that M was evasive by other aspects of her written and oral evidence namely:

I should record for completeness that M’s evidence was that she sold and rented Property B back in early 2020 as the monthly rent was cheaper than paying mortgage payments of £700/£750 each month and gave her the flexibility to move as it was “bittersweet” to live in a house with she once had a child. It was suggested to her that she was seeking to put money away in preparation for the criminal offence she committed. M’s response was that the CPS had found that she made no plans in relation to that offence until September 2020. I note that in paragraph 18 of His Honour Judge ZA’s judgment of 10^th March 2022 he stated that the preparation to commit the criminal offence had commenced some months earlier. However for the same reasons as set out in the above paragraph I express no view in relation to this.

M’s evidence also changed in that although she said in her Replies to Questionnaire dated 5^th February 2023 she had not received €70,000 from her family in 2013 or 2014 she confirmed at the hearing on 4^th May 2023 that this was an error and she did have money around that time from her family and that this was spent on legal fees. She confirmed this in a letter of 18^th May 2023. M stated on 4^th May 2023 that the error was because she was in prison and did not have access to documents. I do not accept that this justifies such an error.

I therefore consider that I am entitled to draw adverse inferences where necessary and relevant.

In light of both the SJE evidence and my entitlement to draw inferences I am satisfied that (i) M has engaged in a deliberate attempt to prevent either F or the court being aware of the quantum of any potential inheritance; and (ii) under Schedule 1 paragraph 4(1)(a) the “property and other financial resources” M “has or is likely to have in the foreseeable future” includes (a) 50% of her late father’s estate; and (b) the remainder of her brother’s 50% share (if any) on his death.

In the absence of any estate accounts (or the equivalent in Country A) the best evidence I have as to the value of M’s late father’s estate is the letter from Mr. TC dated 26^th July 2022. Using a figure of €1 million and deducting the 20% he referred to gives €800,000 which at current exchange rates equates to c. £683,430 of which 50% is £341,715. This figure includes M’s late father’s property in Country A which is being marketed at €450,000 (c. £385,000).

The exercise of the court’s powers under Schedule 1 has been described as “highly discretionary” (Re M-M (Schedule 1 Provision) [2014] 2 FLR 1391 per McFarlane LJ (as he then was) at [33]) which involves “an essentially broad-brush assessment to be taken by family judges with much expertise and experience in the specialist field of ancillary relief” (Re P (Child: Financial Provision) [2003] 2 FLR 865 per Thorpe LJ at [43]). Moreover, the overall result should be “fair, just and reasonable taking into account all the circumstances” (Re P (Child: Financial Provision) per Bodey J at [76](viii)). The discretion is however limited by the requirement that financial provision is made (as set out in paragraph 1) “for the benefit of the child”.

For many years Re P (Child: Financial Provision) and in particular the guidance given by Thorpe LJ at [45]-[49] has been the lead authority as to the proper approach to an application under Schedule 1. This was confirmed in authorities including (i) A v V [2022] EWHC 3501 (Fam) per Francis J at [18] where it was said to be “still the seminal case” and “[t]he guidance given in that case is applicable now as it was in 2003 when it was given”; and (ii) Re Z (A Child) (No. 4) (Schedule 1 Award) [2023] 2 FLR 955 per Cobb J at [14] where it was said to be the “seminal authority” on Schedule 1 cases.

Although Re P (Child: Financial Provision) has most often applied in cases where “one or both of the parents lie somewhere on the spectrum from affluent to fabulously rich” (per Thorpe LJ at [45]), as His Honour Judge Hess observed in SP v QR [2024] EWFC 57 (B) at [13] “it does not follow from this … that awards cannot properly be made (if justified on the merits) against paying parents of more modest wealth, even where all or most of the available capital is needed to provide a home for a child.”

The applicable principles have now been set out in Y v Z (Schedule 1) [2024] EWFC 4 per Peel J:

I gratefully adopt this summary of the relevant principles and bear all of this guidance in mind.

F is of very limited means. His capital position is very modest.

At as the date of his Form E, F owned no real property assets and had liquid assets totalling £10,637. He had debts of £24,949, £24,000 of which was owed to his mother for legal fees. He updated his financial position in his narrative statement: his assets have reduced and his liabilities increased.

F’s mother died during the course of these proceedings. F is sole executor and he applied for the Grant of Probate on 29^th September 2023. F is a beneficiary of his mother’s estate, and F has provided disclosure of the same (including by letter from his solicitors to M dated 2^nd October 2023 under cover of which they provided her with a copy of his late mother’s will dated 9^th November 2018). F’s mother’s estate comprises a property, liquid assets of c. £40,000 (of which F has borrowed £33,000) and £48,845 that he borrowed from his mother.

Under the terms of his late mother’s will F estimates (depending on what his late mother’s property may sell for (I believe it was originally marketed for £315,000 but reduced (according to his oral evidence) to £305,000 and more recently yet further to £285,000) he may receive c. £240,228. This figure reflects that under the will (i) there are legacies of £5,000 each to two grandchildren (one of whom is Child A); (ii) F alone is to receive the proceeds of sale of his late mother’s property; and (iii) the residue of the estate is divided equally between F and his brother. If F shares the estate equally with his brother, he will receive (on the same basis) c. £98,652.50 (F’s figure was £99,152.50 but the difference is not material). Both of these scenarios take account of the £81,845 referred to above.

I accept F’s evidence that his late mother did not leave her estate in equal shares to him and his brother given her concerns that his brother may squander the same (he not having ever managed money well) but that she trusted F to ensure his brother was safely housed. I likewise accept that F feels morally obligated to assist in housing his brother – particularly as he lived with their mother for the last five years of her life - and that ultimately her estate should be divided equally. I accept that F intends to do this by purchasing a retirement flat for his brother at a cost of c. £120,000 with the remainder of his share held in trust. I likewise accept F’s oral evidence that he has discussed this with his brother who seemed “perfectly happy with that”. I therefore accept that I should limit F’s potential inheritance to c. £100,000.

I also accept Ms. Amaouche’s alternative submission that that the obligation to house a child falls on both parents (subject of course to their financial means to be able to do so) and that even if F had available to him his strict entitlement under his late mother’s will (thereby leaving his brother homeless) that does not negate M’s obligations towards Child A.

F was previously in employment in a different role. I accept his case that the criminal offence and all that followed directly led to him being unable to maintain this employment. As at the date of his Form E in his current role, his anticipated net earnings for the next 12 months were £11,189. He also received Child Benefit of £1,100 pa and M’s mother had been voluntarily gifting him £1,000 pm to assist in meeting Child A’s needs up to June 2023 when the payments suddenly stopped.

F’s income and earning capacity has been directly impacted by the trauma caused by the criminal offence committed against Child A and subsequent events. This is one example of both the high threshold and the causative link I have referred to above in relation to conduct being satisfied in this case. He was earning c. £2,000 pm prior to November 2020. Not only was he required to change employment, but I accept he now restricts his working hours (to 18 hours per week) in order to be available for Child A in non-school hours. I accept that it not easy to find third parties to assist with care. I also accept F’s evidence that he has not left Child A alone since the October 2023 half-term when Child A called F crying after only 20 minutes and F returned home. The fact that F’s employer offers flexibility by way of a ‘family friendly’ policy may well not be replicated with another employer.

F’s current income is £10,328 pa (n), child benefit of £96 pm and £576.49 pm from his pension. He also receives a variable amount of Universal Credit (which he believes may be £101 pm in the future). On that basis his overall income is c. £1,841.84 pm/£21,972 pa. He will lose eligibility for Universal Credit when he receives his inheritance from his late mother’s estate.

F’s debts have increased to £48,845 borrowed from his late mother and a further £33,000 borrowed from her estate. These have been taken into account in the calculations above.

M is likewise of modest means (save for the future receipt from her late father’s estate). On 27^th October 2023 she confirmed that since the beginning of the proceedings her financial position had not changed.

M formerly worked as a highly qualified professional but was struck-off by her professional body because of either her conviction and/or prison sentence. She formerly earned sums that varied (given her hours for her employers varied) but were up to c. £2,100 pm (I was taken to one credit of this level and told that this was one if not the highest). It is accepted that her only earned income is very modest from her prison job (and at the present time as confirmed on 27^th October 2023 she has no income). As M accepted, the loss of her income is a direct result of her criminal conviction. Again, this is an example of both threshold and a causative financial consequence of M’s conduct.

From around 2016 to mid-2019 M also received a modest income of £50 pm - £1,000 pm via letting out an annex at Property B via Airbnb. This is also no longer available to her.

Against this legal and factual background I shall determine the issues in the following order:

F and Child A currently live in rented accommodation. Although I accept this is not a view shared by M (not least because living in long-term rental accommodation is far more common in Country A than it is in England) in my view F has the need for the greater security offered by owner-occupied accommodation.

Child A’s needs will be met by a modest two to three-bedroom property with a small garden. F’s evidence is the cost will be in the region of £330,000 to £400,000 with SDLT of between £4,000 and £7,500 respectively. For obvious reasons F has not produced property particulars but I accept this evidence in his statement in relation thereto (and in this context bear in mind the comments made about the court’s ability to decide on such a cost (albeit in the different context of a failure to provide realistic property particulars) in AR v ML (Financial Remedies: Finality of Judgment) [2020] 1 FLR 523 per Mostyn J at [31] and in X v C [2022] EWFC 79 per His Honour Judge Farquhar at [69]). I accept that legal costs, removal costs, and new furniture may add a further (say) c. £10,500 to £13,000 to this figure. The capital need is therefore £348,000 to £420,500.

F’s mortgage capacity report from Boon Brokers dated 2^nd November 2023 states that “according to Newcastle Building Society, assuming a £100,000 deposit as declared, the maximum purchase price is £193,820.” The term referred to is seven years.

I accept Miss Amaouche’s submission that in fact after considering the list of lenders and whether F would be considered eligible and the mortgage affordable F is unlikely in fact to have a mortgage capacity of £93,820 as the author of the report references. The weight of the evidence is that if the F has a mortgage capacity it is modest, and the Newcastle Building Society illustration (an initial monthly cost of £1,379.59 based on 6.20% fix for 27 months) is very much an outlier.

I likewise accept Ms. Amaouche’s submissions that M’s conduct (i) is in the words of Baker J in O v P (No 2) (Sch 1 Application: Stay: Forum Conveniens) “plainly relevant. It would be not merely inequitable but also impossible to disregard it”; and (ii) the impact of that conduct on Child A and F is at the very serious end of the spectrum.

I therefore accept that I should strive to ensure that Child A’s housing needs are met in a property which is free of mortgage. A mortgage is not affordable to F given his income and even if I were minded to find a very modest mortgage capacity on his current income, were he to lose this income then the mortgage would be unaffordable and Child A would be at significant risk of losing their home. I accept that given the trauma that Child A has suffered and their diagnosis I should strive to minimise any risk of Child A facing the further upheaval and destabilisation of the loss of their home.

I likewise accept that this is an area where my taking into account M’s conduct is permissible: but for M’s conduct F would have a higher income, earning capacity, and mortgage capacity. Further, although many children may well face disruption where homes purchased with a mortgage subsequently become unaffordable but Child A’s PTSD and past traumas mean the impact on them would be far more harmful than to a child who has not suffered such trauma. Child A’s trauma and PTSD are a direct result of M’s conduct and this conduct is a magnifying factor when considering Child A’s needs.

I am also wholly satisfied that this is a case where I should exercise my jurisdiction to order long - term capital provision as there are special or exceptional circumstances relating to Child A. The ordinary dictionary meaning of exceptional is “unusual, not typical” and of special “better, greater or otherwise different from what is usual”. In my view these circumstances exist in this case:

To my mind this is therefore another area where I may take into account M’s conduct as part of reaching this conclusion: Child A’s PTSD and past trauma means the impact on them of the capital reverting to M on their majority would be far more than harmful than to a child who has not suffered such trauma. This trauma and PTSD are a direct result of M’s conduct.

I am satisfied that in reaching this conclusion I am not being punitive or confiscatory for its own sake (which is impermissible) but that M’s conduct is a magnifying factor when considering Child A’s needs (including a dependency on F after Child A’s majority).

I therefore conclude that this is one of those rare cases where the capital should not revert to the paying party on the child’s majority.

I should state for completeness that I do not consider that Child A’s funds - £32,753 held in a Halifax ISA as of 28^th April 2023 and a further £2,581 held in a Tesco account – should be utilised towards meeting Child A’s own housing needs.

I also record that in her oral evidence M said (for the first time in these proceedings) that her extended family including Child A’s grandmother and great aunt have made and are making financial provision for Child A should they wish to continue in higher education beyond the age of 18. I do not take this into account given (i) this information was only provided for the first time in evidence; and (ii) I have no idea as to the level of this financial provision save that my impression was that as it is principally by way of birthday and Christmas presents since Child A’s birth (as is often the case within families) it is likely to be (in relative terms) a fairly moderate sum; and (iii) M's knowledge that this provision was still being made was either months ago (in the case of Child A’s great aunt) and several years ago via their great aunt (in the case of their grandmother). Therefore although Child A will be able to access this sum at age 18 it will not in my view provide a resource that could be used to house Child A during their dependency after that age. I reach the same conclusion in relation to any legacy that Child A may receive from any of Child A’s maternal family in due course.

The mid-point of the capital need figure for housing of £348,000 to £420,500 (which I consider is appropriate to adopt) is £384,250. Assuming that F receives c. £100,000 from his late mother’s estate the shortfall is therefore £284,250.

I am satisfied that it is reasonable to order a lump sum of £15,500 to enable F to purchase an approved used car. The cost will be c. £21,495 and F will part-exchange his five-year-old car with a value of c. £6,000.

Child A was diagnosed with PTSD during the public law proceedings. Issues relating to Child A’s attachment difficulties were also identified. Child A was described by an expert as an “emotionally traumatised child”. The local authority funded had therapeutic support and advice with a psychologist from 31^st January 2020 until March/April 2022 (a cost of £110 per session) until Child A said that they no longer wished to continue them as they felt they had become increasingly intrusive.

Prior to the Care Order being discharged, the local authority had indicated that should Child A decide to re-commence these sessions, they would continue to fund the same. However, now that the Care Order has been discharged and the local authority no longer have any legal obligation to do so, F stated that it is highly doubtful that any further funding will be received. In his oral evidence F said that he had asked the local authority to confirm their position about a month ago, but he had received no response.

I agree with F that further funding from the local authority is doubtful. I am fortified in this view by the fact that although a senior solicitor at the local authority stated in a witness statement of 14^th December 2022 that if the care order was discharged the local authority would continue with the support the statement also said that the local authority “is prepared to continue funding this service for a further 10 sessions, subject to review thereafter and the availability of alternative services such as CAMHS.”

In her evidence M said that she had qualms in relation to the aims of therapy and did not agree with much of the therapeutic approach and narratives given. However, she accepted that if it was needed, then yes, she would support the same.

I am satisfied that it is reasonable to order a lump sum of £10,000 to meet Child A’s therapeutic needs.

I decline to order a lump sum of (i) £500 to buy a laptop for Child A; or (ii) a lump sum of £1,500 to meet Child A’s mobile contract costs for the next five years. These are relatively modest costs which I consider Child A can in the circumstances be expected to meet from their own resources of £35,334.

The aggregate of the above figures is £309,750. Given my finding that M can expect to receive £341,715 from her late father’s estate she will have sufficient funds to meet this. I shall therefore order that M pay F this sum on an outright rather than reversionary basis.

M’s accommodation needs are of course currently met. She does not expect to be released from prison for many years. By this time she may have received the residue of her brother’s one-half interest in their late father’s estate. She will also have her pension. In any event, however, her conduct means that (as I am entitled to do) it is appropriate that I prioritise Child A’s needs over her own.

A list of F’s income needs was provided with his Form E (£49,049 pa for himself (including rent of £22,800 pa) and £2,573 pa for Child A – a total of £51,622 pa) and these were updated in his witness statement. Based on his income F cannot meet these income needs.

I do not address any further the issue of child periodical payments and/or the concept of a Household Expenditure Child Support Allowance (‘HECSA’) – so named in Collardeau-Fuchs v Fuchs [2023] 2 FLR 345 by Mostyn J at [129] b. – as there is no CMS maximum assessment. Therefore pursuant to Dickson v Rennie [2015] 2 FLR 978 child support remains a matter for the CMS. I understand an assessment is in place and on 19^th May 2023 the CMS refused F’s most recent application for a variation.

F’s H1 records costs of £124,124 (with £102,655 paid) and of which £5,000 relates to implementation. The N260 records costs of £85,284 (including VAT and disbursements). The difference in these figures reflects that it is accepted on F’s behalf that some of his costs (such as those that relate to an Imerman issue that he did not pursue) cannot fairly be sought. F has met most of his paid costs from the £81,845 he borrowed from his late mother/her estate.

Miss Amaouche requested that if I did not consider it appropriate to decide the issue of costs as part of my draft judgment (and I do not) I express a provisional view in relation to the same.

The starting point on costs is set out in r28.1 namely that the court may make any order as to costs “as it thinks just”. Schedule 1 applications are thereafter governed by the costs rules set out in r28.2. As a consequence:

I am therefore to have regard to all the circumstances and the matters set out in r44.2(4) and r44.2(5). There have, however, been a number of cases as to the relevance in the exercise of the judge's discretion that one party has been successful and the other unsuccessful in a 'clean sheet' case. These include Baker v Rowe, KS v ND (Schedule 1: Appeal: Costs) [2013] 2 FLR 698, Solomon v Solomon [2013] EWCA Civ 1095, H v W (No. 2) [2015] 2 FLR 161 and LM v DM (Costs Ruling) [2022] 1 FLR 393. In essence they conclude that, as in Gojkovic v Gojkovic (No. 2) [1991] 2 FLR 232 per Butler-Sloss LJ (as she then was) at p236, there remains a starting point that costs 'follow the event' even in a 'clean sheet' case albeit the presumption may be somewhat 'softer' and therefore more easily displaced (in LM v DM (Costs Ruling) at [1] Mostyn J used the phrase “soft costs-follow-the-event principle” to describe what governs). I may summarily assess costs under r44.6.

My provisional view is that given (i) F has succeeded in his application; (ii) M did not accept that she was a beneficiary of her late father’s estate – one of the central issues in the case - until recalled to give evidence on 5^th March 2024; (iii) my findings in respect of the same; and (iv) M made no offer to pay a lump sum for Child A’s benefit, a costs order is justified. As Mostyn J observed in KS v ND (Schedule 1: Appeal: Costs) at [21] “by virtue of CPR 44.3(4) (which is applied to these proceedings by FPR 2010 r 28.2(1)) the court has to consider the conduct of the parties; whether a party has been successful in whole or in part; and any admissible offers made by the parties … These would be the first things to write on the clean sheet.” However (again provisionally) I see no reason why such costs should be ordered on an indemnity rather than a standard basis. In this context I adopt the summary of the applicable principles set out in Re Z (No. 5) (Enforcement) [2024] EWFC 44 per Cobb J:

I am not satisfied that, in relation to issues relevant to costs as distinct from its wider facts, this case has been taken “out of the norm”.

Further, based on the above figures M does not have the means to pay the £85,284 sought. Using the above figures M has a surplus of £31,965 (i.e. £341,715 less £309,750). My provisional view is that this would be the appropriate sum for M to pay towards F’s costs. It would represent c. 37% of the costs claimed. It would mean that F could pay his outstanding costs of £21,469 and have a further sum of c. £10,000 to put towards Child A’s housing (should he seek to rehouse slightly above the middle of the bracket) or other costs.

If either party wishes to invite me to conclude other than my provisional view on costs I shall determine the same on the basis of concise written submissions.

On 2^nd March 2024 F sent an email to the court marked for the attention of Her Honour Judge ZC. A copy of this email was sent to me on 4^th March 2024. I have not taken any account of the contents of this email in reaching my decision in this case.

I order that the present reporting restrictions should continue (something sought on F’s behalf and to which M confirmed she agreed).

If this judgment is to be published my provisional view (subject to considering submissions to the contrary) is that the “balancing exercise” espoused in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 which has regard to the interests of the parties and the public as protected by ECHR Articles 6, 8 and 10, considered in the particular circumstances of this individual case, is likely to lead to a conclusion that the judgment should be published on an anonymised basis.

This judgment was circulated in draft on 13^th March 2024. I sought comments thereon by 4 pm on 28^th March 2024.

On 26^th March 2024 Miss Amaouche stated that F invited me to make a final costs order that reflected my provisional view.

A copy of my draft judgment was delivered to and signed for at HM Prison Y at 8.45 am on 15^th March 2024 but there has been no response from M.

I therefore confirm my provisional view in relation to costs.

On 26^th March 2024 Miss Amaouche also confirmed that F acknowledged that transparency in the Family Court was best served by the publication of this judgment subject to anonymisation and I was provided with a draft thereof.

I confirm my provisional view in relation to publication and anonymisation.

The anonymised version of this judgment makes significant amendments to the original. As Miss Amaouche observed there is a balance to be struck between seeking to achieve the purpose of anonymisation and ensuring that the judgment remains coherent. I am satisfied this version of the judgment strikes that balance.

That is my judgment.