SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR JUSTICE CUSWORTH
Between :
TY | Applicant |
- and - | |
XA (No. 4) | Respondent |
Joshua Viney (instructed by Vardags) for the Applicant
Michael Horton KC (instructed by Helen Pidgeon Solicitors) for the Respondent
Hearing dates: 17 December 2025
Mr. Justice Cusworth:
This case has a long and unfortunate history. As identified by Mr Viney, who appeared today for the applicant wife, with some additions from me, there have already been:
The parties’ original divorce proceedings, which were finalised in Germany on 12 December 2019.
Nine rounds of litigation, which took place in Germany in respect of the parties’ children between 2021 and 2023.
The wife’s application for permission to relocate with the children BA (aged 10) and PA (aged 9)to England and Wales in February 2023.
The wife’s application for permission to apply for relief under Part III MFPA 1984 on 6 March 2023, and subsequently also under Schedule 1 to the Children Act 1989.
The husband’s first application to set aside DJ Jenkins initial permission determination. This was dismissed by Moor J in July 2023.
The husband’s first application for permission to appeal – in this instance, of Moor J’s decision. This was refused by Moylan LJ in November 2023.
The husband’s second application to set aside DJ Jenkins’ permission determination, following Potanina. This was dismissed by Moor J in April 2024.
In May 2025, the husband commenced Children Act 1989 proceedings in relation to the children in this jurisdiction, which are continuing.
The Final Hearing of the wife’s Part III application, which took place in May 2025, a draft judgment was made available on 6 June, with the final judgment being handed down on 1 July 2025 (reported as TY v XA (No.2) [2025] EWFC 349). The details of the parties’ marriage and its full history can be found in that judgment.
There then followed a further hearing in July 2025 to deal with drafting and implementation, at which the husband made an informal Barrell application.
There was then a further decision made to determine appropriate provision for costs, which required a further judgment (TY v XA (No.3) [2025] EWFC 350) handed down on 29 September and which led to a final order being made on 9 October 2025.
The husband’s second application for permission to appeal dated 22 October 2025 – in this instance from the Final Hearing determination and costs/incidentals determination. This application remains to be determined.
The husband’s application for a stay of this court’s order pending the consideration of his application for permission to appeal. This application was dismissed by King LJ on 16 December 2025.
The husband’s most recent application to adjourn today, excuse his attendance and to vary the October 2025 order. Whilst I have declined an adjournment, and not excused the husband’s non-attendance, by a direction on 15 December 2025, the substantive application to vary that the husband has made must await the determination of the appeal proceedings.
The wife’s team have since 8 December rightly accepted that, pending determination of the husband’s appeal against the terms of the 9 October order, enforcement of the provisions included in that order, including for a capitalised payment to the wife to cover her rental payments, and for an increase in and security for child and spousal maintenance, as well a substantive costs provision providing for some but by no means all of the wife’s outstanding costs of the proceedings, will have to wait. The husband accepts that the security ordered against the property which he jointly owns with his current wife at in West London (‘the London property’) is effective to provide at least an equitable charge against his interest in that property pending the appeal.
Although I did not excuse the husband’s attendance in some form at the hearing today, he has not attended, although he has been represented by Mr Horton KC and his solicitor, Ms Pidgeon. I understand that he is holidaying with his current wife and two young children from his marriage to her in rural Denmark. I also understand from Mr Horton that, whilst his daughter MA, aged 4, was initially registered to attend XX School West London from September 2025, he has now withdrawn her upon his relocation to France in November 2025, and she now attends an international school in Monaco where the fees are some €27,000 pa (c £23,600). His youngest child, AA, is at a private nursery where the fees are over €8,000 pa. I am told that this is necessary because neither child is currently able to speak French well enough to attend a state-run school. All of the above is relevant to the limited issues of enforcement which are before me today. Mr Horton also tells me that the husband’s rental in France (from a company that he controls), at the rate of €6,240pcm (c £5,460), is about one third of what he was formerly paying in London. He is continuing to make payments of maintenance at the previous interim level.
The enforcement issues for today are as follow:
School fees (sought by an enforcement application dated 21 November 2025). The husband acknowledges that hehas failed to pay the children’s school fees at their school in West London. As at 13 November 2025, I have been shown that £44,406 was due, which comprises the fees for both of the parties’ children for the Summer and Autumn terms for this year. Additionally, it will be the case that a further £22,701 is due in January 2026 for the next Spring term. Mr Viney accepts that the school has tried to be cooperative and to offer suggestions, but he says that the husband has not engaged properly with the school and has suggested that the wife make ‘alternative arrangements’ for the children. I can see from the correspondence that this is accurate. In circumstances where the husband has clearly chosen to prioritise the fees for his younger children from his current marriage over his elder children, this is unfortunate. He may well have paid more than a single term’s fees to enable the mid-term school move for MA. In those circumstances, but subject to the husband’s current ability to pay, there can be no good reason why the payment of the outstanding fees should not now be made. This is especially in circumstances where, throughout these proceedings, and right up to the final hearing at their conclusion, the husband had accepted and acknowledged his obligation to pay for his elder daughters’ schooling, and in circumstances where all of the fees invoices for which are outstanding have fallen due for payment before the final order of 9 October 2025 (now under appeal) was made. His obligation to make those two terms’ payments has thus not been the subject of any appeal prior to their falling due. The children have had the schooling, and the primary contractual liability to the school for the fees falls on the wife.
The wife is also seeking further Legal Service provision today, following orders that have already been made in July 2023, March 2024 and October 2024. Currently, there remains outstanding the sum of £28,000 owing under the October 2024 order, which should have been paid prior to the conclusion of the earlier hearings. The wife is also seeking further funding for the ongoing Children Act proceedings, the next hearing in which is in January 2026, for which hearing she seeks an additional sum of £25,000, unless I am prepared to contemplate today the fully constituted application which she is making for sums potentially running up to as much as £541,317, but some of which would be conditional upon the outcome in the Court of Appeal, and all of which are I consider highly conjectural.
Finally, by an application dated 8 December 2025, the wife seeks an order for sale against the London property, and an injunction and preservation order against the husband’s share of the proceeds of sale in that property.
The wife is seeking to enforce the outstanding elements of the school fees order at this hearing, specifically by means of a third-party debt order against the husband’s Julius Baer account and, in default, by means of a charge against the the London property proceeds. The school have historically indicated that they would be amenable to this provided that £1,000pcm is paid to the school. That is not something to which the husband has been prepared to agree. In his statement dated 11 November 2025 he said: ‘As I said in July, I am unable to afford the school fees. Contrary to what has been said, my [younger] children are not in private school in England – although I registered them for a place, I have had to cancel it as I cannot afford it’. It is now clear as explained above that MA in fact commenced school in England in September, and then moved, in November, to different private provision in France.
There has been some dispute at this hearing about the husband’s current financial circumstances. Mr Viney has produced a number of pictures from the husband’s current wife’s Instagram account which appears to show significant luxury being available to him and his current family. There has not been time for the husband to properly comment on those or to respond. It is however clear that he feels able to educate one of his children privately. The cost for the two elder girls is some £67,000pa, or £33,000 per child, which is not disproportionately more than the amount which is currently being paid for MA, especially as she is significantly younger than her half-sisters.
In addition to the London property, the husband has an interest in seven other properties, the current market value of which is not currently agreed. For today’s purposes, I will take his own figures, which I acknowledge the wife says are likely to be at a significant discount to true market value. Ignoring two properties in Vienna which he says are in modest negative equity, the husband’s own account of the net value of his property interests including the London property comes to some £4,427,253. In addition to that he has business interests which he puts at £2,932,708.66, a share of a plane at £167,640, and money held with Julius Baer of £1,618,846.53, a total of £9,146,448.19. He also asserts that he has various debts and commitments which reduce his current net worth down to about £5.5m. Those debts do not, however, I am satisfied affect his immediate liquidity, and nor do they include the sums which he currently owes by orders made in these proceedings.
Amongst the business interests figure above are some shares in an enterprise called ZZZ, which the husband valued in November at $745,380, or £567,979.56. In his November statement he said of these shares: ‘I am loath to sell them because I need to find about €1m next year to meet my PE commitment, and I cannot rely on a house selling in time.’ The ‘PE commitment’ is to pay £864,602.83, and is included in the above mentioned commitments. Through Mr Horton, the husband tells me today that he also needs to use the value of these shares in fact to make various mortgage payments as they fall due. Mr Horton also acknowledged that they would also likely be used to pay MA’s school fees as well as the nursery fees of her younger sibling AA. I see no reason why I should not therefore treat the value of those shares as currently available liquidity to meet urgent obligations under the un-appealed court orders such as the outstanding school fees, and LSO.
Mr Horton also argues that, as all of the fees were swept up in the 9 October order which his client is now appealing, his obligations across the board should be frozen to await the Court of Appeal’s determination. I cannot accept that. These sums were not only ordered, consensually in the case of the school fees, by the court prior to the determination of the substantive financial proceedings, but they had already fallen due and were in arrears before the order was made. The non-payment of the fees would result in BA and PA losing their school places. That is clearly what the husband intends to achieve, to avoid any argument about future affordability. I am satisfied that is not necessary or required on an interim basis, and that the money should be found from the value in the shares.
In this respect, the same applies to the outstanding £28,000 of LSO provision ordered to paid in advance of the final hearing. Even though the 9 October Order swept up all of the obligations under earlier orders, Mr XA’s un-appealed obligation to make that payment pre-dated both the order, and the subsequent appeal. It would be profoundly unfair to the wife if the husband were now allowed effectively to seek permission retrospectively to appeal that long outstanding amount simply because he had successfully avoided making payment of the sum up to and including the date when the final order was made. I am satisfied that he has the funds to make that payment. I accept that his further costs obligations, imposed by me in the October order, cannot yet be enforceable until the appeal proceedings have been dealt with. However, I am satisfied that that earlier element should now be enforced on the basis that it is clear that the husband has the means now, reasonably, to make that payment from proceeds of the ZZZ shares.
However, it is equally clear that he will not do so unless he is put in a position whereby he has little choice but to comply. Consequently, I am prepared to make an order today that until such time as he has (1) discharged in full the currently owing school fees to the girl’s school in West London, and (2) the outstanding sum of £28,000 owed under the pre-final hearing LSO order, he should not sell, charge or otherwise diminish the value of his ZZZ shares – save that he may use a proportion of those shares to comply with this order. In the event that he has not by 5 January 2026 complied with this part of this order, then the January 2026 school fees will also have fallen due, and he must also discharge those fees before he otherwise accesses the account.
In terms of LSO provision, I do not consider that it would now be appropriate, or proportionate, to make very substantial further provision to abide appeal proceedings, or enforcement proceedings, which may not happen, or may happen only in truncated form. I am also aware that the husband has issued an application to vary my order for ongoing maintenance provision, in the event that his appeal fails or presumably is only partially successful. I therefore have to be cautious about further orders while the permission application is still pending. However, it should be clear to the husband that if there is now substantial further litigation, further funding, provided at least in the first instance by him, is very likely to be required. For now, to avoid any risk of prejudice to the wife, but at the same time to ensure proportionality, I will direct that going forward the husband should provide, by way of a further LSO, a monthly amount of such sum as he is billed by his own solicitors for work done, whether or not he has in fact chosen to pay them. I am aware that he has currently incurred significant fees without making payment; I am satisfied that he expects in due course that he will be able to do so.
I am told that there is a Children Act hearing listed in January 2026, which is in proceedings in which the husband is currently choosing to act in person. To enable the wife to be represented at that hearing, the husband should make an additional payment under the terms of the further LSO in the sum of £20,000 by 5 January 2026, which I am satisfied should be more than sufficient to enable the wife to be properly represented there. This sum is in addition to the matching sums directed above. It also represents 80% of the figure sought for that hearing by Mr Viney. This sum is over and above the sums directed at paragraph 10 above, and must be paid on time. It is not however the subject of the injunction in relation to the ZZZ shares.
As to the balance of the husband’s assets, he tells me through Mr Horton that his Julius Baer accounts are ‘locked’ to provide six months’ security for the payment of the substantial mortgage on the London property. This means that, once the property is sold, any funds then held in the account will be unlocked and available to satisfy his obligations to the wife under the October order, or such other order that may then be in force whether as the result of appeal or variation. Given the need that there has been for this hearing, which could evidently have been avoided if the husband had simply paid the outstanding sums which I have dealt with above, I am satisfied that it is appropriate for the fund in the Julius Baer Account not to be withdrawn or otherwise used save for the purposes of paying and then being replenished as required to meet the current requirements of the mortgagees, or of course should the husband choose to meet any of his obligations under the court’s orders from that account in the meanwhile. I do not today propose to make a Third Party Debt Order in relation to this account, in the expectation that the above provisions will be sufficient for urgently outstanding sums to be paid.
As to the London property, I will make an order which prevents the husband disposing of or dealing with the value of his interest in the property, or permitting any third party to do so in such a way as to diminish the value of his interest. Such order will not affect the current funding arrangements with the husband’s solicitors. If however, they seek to extend those arrangements, and any such extension against the equity in the property is not agreed, then they will have to apply to court. In all of the above circumstances, I will not today make an order for sale in respect of the London property, especially in the absence of proper formal notice having been given to the husband’s current wife, who is a joint owner of the property, but I will adjourn the application and permit the wife to return it, on proper notice, if there are further enforcement issues, in the new year. I do so on the basis that I expect that the other measures directed above will be sufficient to compel compliance. I also make it clear that the school fees order should continue to be complied with until further notice, and pending determination of the husband’s application to vary, if it is required following the conclusion of his appeal, or pending the determination of his appeal, unless otherwise agreed.
I have indicated that I will deal with any issues about costs on paper.