DN v UD€ (Sch 1 Children Act: Capital Provision)

This is the final hearing in an application brought under s.15 and Sch 1 to the Children Act 1989.

The applicant is DN (‘the mother’). She is represented by Freemans Solicitors and by Leading Counsel Charles Howard Q. C. together with Junior Counsel Laura Moys.

The respondent is UD (‘the father’). He is represented by Hall Brown Solicitors and by Leading Counsel Christopher Pocock Q. C. together with Junior Counsel Katherine Kelsey.

The mother is 54. She was born in the Soviet Union and was (and may still be) a

The parties have cohabited intermittently over the last two decades. Their relationship has not been conventional in that the father has married three other women (divorcing two of them) over that same period. He has three children from his other relationships: SD from a short lived relationship who was born on 1 September 1986, ED with his first wife who was born on 6 May 1999 and ID with his third wife ND who was born in August 2017.

In about 2000 the father set up a Lichtenstein foundation – (“the Foundation”) for estate planning purposes. The sole beneficiary of the Foundation was the father and it appears to have held most of the father’s assets either through a Marshall Islands registered company (“the Company”) or directly.

The father purchased properties as homes for the mother and children in N City until 2010. The mother and the children moved to England in the summer of 2010 and they have lived here permanently ever since. Initially the family lived in rented accommodation. The family home (“the London Apartment”) was purchased by the father in April 2011 and was thereafter extensively renovated at a cost of some £800,000. The mother and children moved into the property in March 2014 following completion of the renovation. The family home is valued at c.£10 million, the price reflecting the exclusive nature of the address. The father continues to live in Russia and has visited the family in the UK about four times a year for four days or so each time.

Since moving to the UK in 2010, the mother and children have visited Russia for several weeks during the summer and for periods at Christmas and Easter. When in Russia they have usually resumed occupation of the family home that they occupied

The mother’s sister, niece and mother live in a country in Eastern Europe. The mother and children visit them during holidays. The father’s eldest son SD now works as the managing director of the food factory although the father retains 100% ownership. ED, who studied in England for several years has left university without completing his degree and is considering his options. I believe the father said he is doing some work for him.

In addition to returning frequently to Russia, the father, the mother and the children have taken regular holidays together. In 2016 the family went on a yachting holiday in Croatia. Following this holiday a dispute emerged over the investor visa monies. I shall consider this in more detail later as it is relevant to one aspect of the mother’s claim. In any event the mother returned £690,000 to the father and retained £300,000 as ‘security’. The mother says that intimate relations between herself and the father ended in 2016. The father says that it ended much earlier.

In late 2017 the father gave DD £607,000 in order to purchase a property in London. Recorder Genn found as a fact that this was a gift and that it had not been intended that DD transfer to the father his alleged beneficial interest in the N City Property in return. However a dispute arose between the father on one side and DD and the mother, TD and GD on the other which very quickly turned highly acrimonious. The mother says the father had, over a period of years, become emotionally and physically abusive to her and the children. This abuse reached a crescendo in December 2017 and January 2018 as the dispute over the sums given to DD exploded into threats by the father towards the mother and DD. The threats became backed up by actions when the Foundation sought to evict the mother and children from the London Apartment.

The father’s abusive behaviour eventually became the subject of a fact-finding hearing which took place before Recorder Genn in October 2018. Extensive and serious findings were made against the father at this hearing. On 25 January 2018 the mother applied without notice for an occupation order and non-molestation orders under the Family Law Act 1986 along with a prohibited steps order to prevent GD being removed from the jurisdiction. These were granted by DJ Hudd. The Family Law Act orders expire in March 2020. The father does not oppose their extension.

On 8 February 2018 the mother issued these Schedule 1 proceedings. The history of the proceedings is contained within the chronology attached to this judgment. Following the hearing before Recorder Reardon (as she then was) the case was allocated to a judge of High Court level. An FDR was listed before Mr Justice Francis on 6 February 2019 which went part heard but was not resumed. On 30 July 2019 the mother’s application for a legal services payment order and the pre-trial review came before me and I case managed the application to a final hearing to commence on 20 January 2020.

The mother has not worked since she and the children moved from Russia to London in June 2010. She was on maternity leave from the father’s company for several years before returning part-time from about 2008 until 2010. She, TD and GD continue to live at the family home. DD lives at his flat in West London and I believe is studying at college. TD is living at home and is currently at university. GD lives at home and is at school. She is soon approaching her GCSEs.

The father has adopted the ‘millionaire’s defence’ within these proceeding and has conceded that he has sufficient resources to meet any award which the court might reasonably make. He has not been required to go through extensive disclosure and give a comprehensive picture to the court of the precise scale of his wealth. The affordability of the orders sought by the mother is not in issue, nor is any potential impact of those orders on the father’s ability to meet the needs of his immediate family. It is the reasonableness of the mother’s claim and the court’s jurisdiction to make various orders that is the issue between the parties.

At the hearing on 30 of July 2019 the parties agreed that the following were the key issues for the final hearing:

The applicant additionally raised the following issues (which the respondent did, and does, not agree are relevant issues in the Schedule 1 Proceedings):

As a result of the mother’s open offer I also have to consider whether there should be an outright provision of capital for a home for each of the children whether by way of settlement, property adjustment order or lump sum on a sale of the family home (either the London Apartment or any alternative home provided for by my order) and, if so, in what sum.

As will be readily apparent the list of issues covers matters of fact, evaluation and of law.

At the commencement of the hearing the parties respectively raised arguments in respect of some of the issues identified and invited me to determine whether they should be considered in the course of the hearing and if so whether evidence should be called in respect of them.

The mother invited me to re-examine the issue of who was responsible for the damage to the mother’s property in N City. This was opposed by the father who submitted that the issue had been determined by Recorder Genn. I delivered a short judgment on that issue on the afternoon of the 21 of January 2020 and declined to re-examine that issue.

The issues of whether the court had jurisdiction to make orders in respect of the mother’s jewellery which she alleged the father had removed and whether the court had jurisdiction to make orders in respect of the antiques in the London Apartment which the father alleged were his alone were addressed. In respect of the antiques, Mr Howard conceded that if I concluded that they should not remain in the London Apartment as part of an ongoing home for the children and the mother, that she would

In respect of the orders sought by the mother and the father’s response they are set out in the parties’ open positions as subsequently varied or clarified in their Skeleton Arguments and closing submissions. I set them out in summary form in the table below. Each of the Open Offers and the Skeletons or Position Statements set out the positions in considerable detail.

S.15 of the 1989 Act gives effect to Schedule 1 (“Sch 1”), and empowers the court to make financial provision for the benefit of children, including in terms of provision for periodical payments in circumstances where the Child Support legislation does not apply. It is agreed that the circumstances of this case are such that the court has jurisdiction in respect of periodical payments.

Paragraph 1 of Sch 1 provides:

Paragraph 2 of Sch 1 also permits children over the age of 18 themselves to seek orders (for periodical payments and/or lump sum only) against their parents in certain circumstances:

Paragraph 3 deals with the duration of periodical payments orders:

Paragraph 4 sets out the matters to which the court is to have regard in making orders for financial relief:

Paragraph 5 sets out the provisions relating to lump sums:

Paragraph 6 permits variation applications where a child has reached 18 years of age.

S. 105 of the Act (the interpretation section) provides that

“‘child’ means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen”.

Paragraph 16 of Sch 1 (Interpretation) provides:

Sch 1 did not create substantively new law. As s.15 itself records, it “consists primarily of the re-enactment with consequential amendments and minor modifications, of provisions of the Guardianship of Minors Acts 1971 and 1973, the Children Act 1975 and of sections 15 and 16 of the Family Law Reform Act 1987” all of which gave the court jurisdiction to make orders for financial relief for children.

The issue arises as to the court’s jurisdiction to make capital orders in respect of both TD and DD.

The mother’s application was issued on 8 February 2018 and named both TD and GD. TD was therefore aged 17 and GD 12.

Mr Howard and Ms Moys submit that the power to make one of the ‘menu’ of orders is triggered at the point of application and from that point on the court has the power to make interim and final orders. The restriction in Sch 1, para 1(5)(a) which allows the court to make further periodical payments, secured periodical payments and lump sum orders provided the child has not reached the age of 18 does not apply to the making of the initial order. They note that Sch 1, para 1(3) identifies that the powers conferred by this paragraph may be exercised at any time.

Mr Pocock and Ms Kelsey argue that the court has no jurisdiction to make an order in respect of a child who has reached the age of 18 unless it is an application which falls within Sch 1, para 2. They argue that Sch 1, para 1(1) refers to an order requiring ‘either or both parents of a child’ to make payments, or ‘an order requiring a settlement to be made for the benefit of the child’ and the reference to ‘child’ must be to a child under 18, as defined under section 105. The ability of the court to extend a periodical payments order does not change the meaning of ‘child’. They refer to the decision of Mr Justice Munby as he then was in Re N (payments for benefit of child) [2009] 1 FLR 1442 and his observations as to the narrow circumstances which Parliament had carefully put in place where orders for financial provision could be made to extend beyond a child’s 18^th birthday or be made on application by a person already aged 18.

They argue that the provisions of the Matrimonial Causes Act 1973 do not assist the mother’s argument because:

Although at paragraph 19 of their skeleton argument Mr Pocock and Ms Kelsey submit that there is no power to make an order for the transfer of property to, or settlement on an 18-year-old child or to a parent for the benefit of such an adult child and there is no power to make a lump sum order to the mother for the benefit of TD, the logical conclusion of their argument is that the court does not have jurisdiction to make a periodical payments order in respect of TD, although it is accepted that such an order can be made without TD applying in his own right. At the time the court would be making the order he will not be a child within the meaning of Sch 1, para 1(2)(a) or (b). The provisions of para 3 which relate to the duration of an order do not determine the jurisdiction of the court to make an order in the first place but rather identify when the term of ‘an order for periodical payments made under paragraph 1 (2) (a)…’ may commence and when it may cease. On Mr Pocock’s construction the court could make a periodical payments order if the child was under 18 at the time it was made and could extend it in accordance with the provisions of Sch 1, para 3 but could not make the order in the first place if the child was 18 years and one day old by the time the order was actually made.

In relation to the ability of the court to make capital orders in respect of TD the commentary to the Family Court Practice 2019 [paragraph 2.233[1]] states:

When the matter came before me on 20 July 2019 no issue was taken over the jurisdiction of the court to make any of the menu of orders in Sch 1, para 1. The recitals to the order [B36] identified both children as being within the ambit of both capital and periodical payments orders. In contrast the recitals and the provisions of the order did draw a distinction between TD and GD on the one hand and DD on the other.

The effect of Sch 1, para 3 which permits the court to backdate a periodical payments order to the date of the application and to extend it beyond the child’s 18^th birthday would support the construction that an order for periodical payments can be made for the first time after the child reaches the age of 18 provided that the application was made prior to the child’s 18^th birthday. The use of the word ‘is’ in paragraph 3(2)(a) would also support the construction that an order can be made at a time when the child is 18. It seems to me that if the court has the power to make a periodical payments order in respect of a ‘child’ who has reached the age of 18 where the application was made prior to the 18^th birthday that the court would also retain the jurisdiction to make other species of order under para 1. Para 3 is looking at the duration of orders in terms of commencement and end date rather than the jurisdiction of the court to make any order at all. As a matter of logic if educational or special circumstances apply so as to justify the court making periodical payments orders which extend beyond the child’s 18^th birthday those special circumstance would as a matter of fact (albeit not of law) be just as relevant to the issue of whether they provided the factual foundation for a capital order. If Parliament had intended that the court should lose the ability to make an order when the child reached the age of 18 in the course of pending proceedings it surely would have addressed the issue. If the court lost the power to make the order it would require the court to then join the child to the proceedings or at least to ascertain whether they wished to then make their own application. I do not think it can be right that procedural delay the fault for which might lie entirely at the door of either the court or of the respondent should have the potential to ‘knockout’ an application which was legally permissible and which was evidentially sustainable at the time of determination. Such an interpretation would potentially breach both the article 6 ECHR and article 8 ECHR rights of the applicant and the children and would be contrary to their welfare, whether as a primary consideration or simply as a consideration. It could in any event be partially remedied by joining the adult child as a party and deeming an application to have been made by them pursuant to Sch 1, para 2 albeit there would be a more limited range of orders available. This would still encompass both income and capital. If I am wrong in my conclusion that the proper interpretation of Sch 1 is to allow the court to make an order under paragraph 1 (2)(a-

So I conclude that provided the application is made before the cut-off date it seems to me that the court having acquired jurisdiction to make orders under Sch 1, para 2 retains it until disposal of the application.

The mother also argues that a fundamental rights based interpretation of Schedule 1 of the 1989 Act should lead me to conclude that it permits a parent to make an application on behalf of their child after that child has attained the age of 18.

Mr Howard and Ms Moys argue that there is an illogical contradiction in the wording of Sch 1. This is because whilst the act allows applications brought by the parent of a child under 18 at the date of the application to result in orders lasting beyond the age of 18 if the child is in education/training, and allows adult children to bring their own applications for periodical payments or lump sums, it does not allow a parent to make an application for periodical payments or lump sums on behalf of their 18+ child even if that child is in education/training or under a disability (I assume this means special circumstances). They make the following points in support of their submission that I should interpret Schedule 1 so as to allow an application by a parent in respect of (or on behalf of) an adult child. Their detailed submissions are contained from paragraphs 99 through to 112 of their skeleton argument and on pages 2 and 3 of their ‘Headline Points’.

On behalf of the father Mr Pocock and Miss Kelsey argue that the mother is “trying it on” in relation to this part of the claim and observe that no claim has ever been advanced on behalf of DD and he is omitted from her budget. The late development of this argument illustrates its lack of any real basis and has also resulted in it being impossible to fully explore in submissions. They point out that the basis of the court’s powers in respect of orders made on divorce and orders under Sch 1 are both different in jurisdictional basis and in nature. In relation to the powers under the MCA orders, they are made on divorce (the termination of a legal status) and arise out of that and can be made for the benefit of any child of the family who does not need to be under 18 years old or even the biological child of either spouse.

They submit that the language of Sch 1 is clear and that it cannot be interpreted so as to provide the court with the power to order a lump sum for DD even if it were impermissibly discriminatory and thus the court would be in declaration of incompatibility territory.

Although they are unable, given the constraints of time, to fully develop their argument they submit that there is objective justification for the difference in treatment arising out of the fact that parties who marry or who enter civil partnerships choose to adopt/submit to protections and obligations which then sound in the wider range of powers that the court acquires upon the termination of that legal relationship. Unmarried couples do not subscribe to those same obligations and protections and this does not amount to discrimination against the child of an unmarried couple but recognition of the very different positions of the respective sets of parents.

For the reasons set out below I do not accept that it is open to the court to make orders on the application of the mother in respect of DD.

Where an order for financial provision is sought 'for the benefit of the child', that ‘benefit’ is not confined to a financial benefit of the child.

However, the words ‘for the benefit of the child’ are not without limitation and there is no power to make orders for the applicant’s sole benefit. That is not to say, however, that a payment to an applicant “for the benefit of a child” may not in reality provide some consequential benefit to the applicant. For instance, where providing a home for a child necessarily means providing a home for the primary carer of the child who is the subject of the application under Sch 1 this is not only permissible, but is a necessary effect of the order, taking into account welfare considerations of the child in their proper context within the Children Act 1989, Sch 1 (Re P (a child) (financial provision) [2003] EWCA Civ 837; A v A (a minor) [1994] 1 FLR 657).

It has also been said that the child's financial needs include a need to be cared for by a person who is – both generally and financially - in a position to provide that care, enabling the caring parent’s needs to be taken into account (Re P (ibid); A v A (a minor) [1994] 1 FLR 657; Haroutunian v Jennings (1977) 1 FLR 62). The provision of a carer’s allowance as part of a periodical payments order has therefore been developed as a legitimate part of a Sch 1 order.

Para 2 of Sch 1 deals with orders for children over 18. The court has power to make such an order provided that the child is or will be (or would be if an order is made) in education or training, or there are special circumstances. ‘Special circumstances’ may include physical or other disability (per C v F Disabled Child: Maintenance Order [1998] 2 FLR 1 and T v S (Financial Provision for Children [1994] 2 FLR 883).

Para 3 of Sch 1 deals with the duration of maintenance orders. Whilst the court is enjoined from ordering periodical payments beyond a child’s 18^th birthday (§3(1)(b)), there are exceptions (§3(2)) where the child is or will (or would if an order is made) be in education or training or where ‘special circumstances’ apply.

Whilst the para 4 list of factors is similar to that to which the court has regard in exercising its discretion to make orders in relation to divorcing parties to a marriage

It is immediately apparent that the factors which are omitted are those which focus on the adult parties rather than the children who are to benefit. However the Court must consider ‘all the circumstances’ of the case when exercising its wide discretion to make orders under Sch 1. The reference to 'all the circumstances' is capable of including standard of living and conduct that it would be inequitable to disregard.

In Re M-M (A Child) [2014] EWCA Civ 276 the Court of Appeal (McFarlane LJ) said (para.33):

“In cases under Sch 1 the court will have regard to the degree in which the child in question is entitled to be brought up in circumstances which bear some sort of relationship to the father's current resources and the father's present standard of living.”

Macur LJ in Re A (A Child: Financial Provision) [2015] 2 FLR 625 (§18-19) said that:

“The additional factors at subs (d), (f) and (g), namely duration of the marriage, contributions made and conduct, make clear the distinction between the basis of the claims of a party to a previous marriage and a child, whether illegitimate or legitimate.”

“The literal or purposive interpretation of Schedule 1 does not permit of the concept of sharing or compensation for the benefit of the child, nor, by the back door, financial provision and compensation for the carer beyond that element attributable to the care of the child during his minority, or other determined duration of dependency. There is no established authority to the contrary. The judgment of Lady Hale in Gow v Grant [2012] UKSC 29, [2012] 3 FCR 73, at paragraphs 44 - 56 which urges reform of the law to rebalance the financial consequences of relationship breakdown in cohabitation, makes this clear, as does the prevailing case law on this point; see: J v C (Child: Financial Provision) [1999] 1FLR, 152, at 159 H; Re P (above) at paragraphs 40, 41 and 49; PG v TW (above) at paragraph 105.”

Hale J (as she then was) in J v C [1999] 1 FLR 152 had held that whilst the principle that the child’s welfare is paramount is not one of the matters listed in paragraph 4, nevertheless, and whilst not “paramount”, the child’s welfare is still relevant:

“Nevertheless, in cases under the Children Act 1989 the welfare of the child concerned, even if neither the paramount nor the first consideration, must be one of the relevant circumstances to be taken into account when assessing whether and how to order provision”

Later, in Re P (supra), Thorpe LJ said that the child's welfare will be “…in the generality of cases, a constant influence on the discretionary outcome…”

Those observations of Hale J (as she then was) were made before the implementation of the Human Rights Act 1998 but they and those of Thorpe LJ are in broad terms consistent with article 3 of the United Nations Convention on the Rights of the Child which provides that:

Decisions of the Supreme Court of the UK make clear that the rights set out in the UNCRC are binding and must be complied with in domestic decision making: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, per Baroness Hale at 23; HH v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening) [2012] UKSC 25, [2013] 1 AC 338, [2012] 4 All ER 539, paras 33 and 155, where the Supreme Court said that in looking at ECHR rights they had to be considered through the prism of UNCRC, Article 3.1. In ZH (Tanzania) the UK Supreme Court explored and explained the distinction between decisions directly affecting the child's upbringing where welfare was the paramount consideration, and decisions which affect the child more indirectly where welfare is a primary consideration. Where welfare is a primary consideration the decision taker should not treat any other consideration as inherently more significant but should consider the best interests of the child first. Insofar as the later decisions impact on what Hale J said in J v C in terms of welfare not being the first consideration, it seems to me that in so far as the law may now require welfare or best interests to be considered as a first consideration as part of all of the circumstances of the case it is a modest shift of emphasis.

The leading case on the exercise of the statutory discretion remains Re P (Child: Financial Provision) [2003] 2 FLR 865, the first Sch 1 case to reach the Court of Appeal. In that case, the parties, who had not cohabited, had a two-year-old child. The father described himself as 'fabulously rich' and conceded that he could pay a lump sum of £10 million if he were ordered so to do. At first instance, the mother was awarded, inter alia, £450,000 for a house; £30,000 for furnishings; and periodical payments of £35,560 pa to be reduced by £9,333 on the child's seventh birthday. The mother appealed (successfully) to the Court of Appeal, which increased the housing fund to £1 million; the furnishing fund to £100,000; and periodical payments to £70,000 pa (less state benefits). Thorpe LJ gave general guidance in relation to future Sch 1 applications. The main principles can be summarised as follows:

The court is required to ensure that the lump sum provision does not overlap with the general maintenance powers. Thus, if the court does not have the jurisdiction by virtue of the child support statutory regime to make a top up order, that cannot be circumvented by ordering lump sums instead for items of general maintenance (per Johnson J in Phillips v Peace [1996] 2 FLR 230). Nor may a lump sum be used to circumvent the prohibition on there being more than one settlement or transfer of property order: Phillips v Peace [2005] 2 FLR 1212 at paragraph 35 per Singer J:

Mr Howard has argued that if the court does not have jurisdiction to award a lump sum in respect of expenditure incurred by the mother in relation to DD, that it can take it into account indirectly because the court must have regard to the financial needs, obligations and responsibilities of the mother pursuant to Sch 1, para 4(1)(b) or as part of ‘all the circumstances’. Mr Pocock submits that the mother cannot get by the back door that which she cannot get by the front door of an order for a lump sum for the benefit of DD and relies on Phillips v Peace. I agree with Mr Pocock’s submission and observe that it is difficult to see how in practice taking the mother’s obligations into account could translate into an order within para 1(2) when the entirety of her income will come from the father and when any order would have to be to benefit either TD or GD.

The court has jurisdiction to award periodical payments (or secured periodical payments) either because the payer is in receipt of an income at or greater than the maximum amount for CMS purposes, or (as in this case) because the CMS has no jurisdiction as the payer is not resident in England and Wales.

There are repeated warnings in the authorities that the court must be alive to the possibility of claims being brought for the child, but which include sums for the benefit of the caring parent that are not in any way related to their care of the child. For example per Hale J in J v C (supra):

However Haroutounian v Jennings [1980] FLR 62 established that the costs of a mother’s care fall within a claim that can be made on her behalf. In that case Sir George Baker P and Balcombe J sitting as a Divisional Court on appeal from the justices pursuant to the Affiliation Act 1957 said:

“It is not wrong in principle for an allowance for a child to include an allowance for the mother, particularly if she has had to give up work, or is unable to work, because of the child.” [per Sir George Baker P at para 65].

Similarly, in the more recent PG v TW (No 2) (supra), HHJ Horowitz QC (sitting as a High Court Judge) considered the position of a 4 year old child, whose father was a very high earning professional footballer (he was said to have a multi-million pound income). He said:

It is a curious anomaly that in the 21^st-century a carer’s allowance, which might be interpreted to some extent as a wage, does not carry with it any entitlement to pension provision. However no claim is advanced in this respect and so it does not require any further consideration. The court does not (any longer) look at the broad cost of professional child care and calculate the maintenance accordingly. The approach is now that set out above in re P (Child: Financial Provision) [2003] 2 FLR 865. In the same case, Bodey J in the Court of Appeal also said:

“[77] From the experience of this case, I would propose three further considerations:

i)

In considering the mother’s budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.

ii)

Comparisons with the commercial cost of providing professional care are unlikely to be of great assistance and may only serve to distract.

(iii)…

[78]

It is in quantifying the mother’s reasonable needs as carer of the child that a tension emerges in such cases as this where the father is very wealthy. This tension is between seeking to achieve that the child has a standard of living bearing ‘some sort of relationship with the father’s current resources and standard of living’, yet that the mother is not in the process provided for just the same as if she and the father had undertaken the commitment of marriage.

[79]

Such tension is unlikely to emerge where the father is of lesser means, as (i) his lifestyle will be more modest as a comparative factor and (ii) his own needs will place a curb on the amount which he can reasonably be expected to pay.

[80]

Since there will always be distinctions of fact and degree as between cases, it is not possible to reduce to words any formula for seeking to ensure that the above distinction is maintained between mother as carer and mother as former wife. There will always be some budgetary needs claimed by a mother which fall clearly within her reasonable needs as the child’s carer and others which fall clearly outside those needs as carer.

[81]

There will equally and inevitably be numerous grey areas, where the need asserted is of no direct benefit to the child, but is (or is arguably) of legitimate indirect benefit in helping reasonably to sustain the mother’s physical/emotional welfare. This will be most pronounced when the father is very wealthy and able without difficulty to provide for living costs of no clearly identifiable direct benefit to the child, but which would indirectly promote the mother’s care of the child by allowing her such a lifestyle as not to feel ‘out of place’ in the society of the parents of the child’s friends.

[82]

It is these fine (and largely insoluble) distinctions of fact and degree within the grey areas of indirect benefit to the child which particularly justify the proposition at para [77](i) above, namely as to the desirability of a broad budgetary approach by the court in bigger money cases. Such an approach aims so far as possible to avoid subjectively driven, time consuming and cost ineffective arguments, so often fairly sterile in the result.”

In the vast majority (although not all) instances of reported court ordered awards there has been no “delineation” of the overall maintenance award between direct costs, indirect costs and carer’s allowance.

The principle that children are entitled to be maintained and educated but that, in the absence of disability or other special circumstances, they have no claim on their parents’ resources after seeking to be independent is taken from the successive cases of Chamberlain v Chamberlain [1973] 1 WLR 1557, then Lilford v Glynn [1979] 1 WLR 78 then Kiely v Kiely [1988] 1 FLR 248: “the statutory scheme is to enable the court to make financial provision for children as children or dependents”. Those were the authorities also referred to by Hale J (as she then was) in J v C supra (at 155), where she briefly traced the legislative history of the 1989 Act, and the Family Law Reform Act 1987, its near identical predecessor. She stated that the 1987 Act:

“implemented two Law Commission reports on illegitimacy. The object of those reports was to remove the difference in legal positions of children. The underlying principle was that children should not suffer just because their parents had, for whatever reason, not been married to one another

Equally of course they should not get more. There is a long line of authority, beginning with Chamberlain v Chamberlain [1973] 1 WLR 1557, and continuing with Lilford (Lord) v Glynn [1979] 1 WLR 78, (1978) FLR Rep 427 and Kiely v Kiely [1988] 1 FLR 248, that children are entitled to provision during their dependency and for their educations, but they are not entitled to a settlement beyond that, unless there are exceptional circumstances such as a disability, however rich their parents may be”

In T v S (Financial Provision for Children) [1994] 2 FLR 883 Johnson J set out the principle that support for children extends to the end of their minority or education, but in the absence of disability or other special circumstances, not beyond that.

In relation to disability, in C v F (Disabled Child: Maintenance Orders) [1998] 2 FLR 1, the Court of Appeal confirmed that the court has this power to make orders under Sch 1 in relation to a child who is over 18. Expenses in relation to a child’s disability should be given a broad interpretation. Thorpe LJ summarised the position at paragraph 8:

In the same case, Butler-Sloss LJ held at paragraph 3:

Similarly, in T v S (Financial Provision for Children) [1994] 2 FLR 883 Johnson J had to consider para 3(2)(b) of Sch 1 in relation to five minor children of parents who did not marry. He said at 889:

“Whilst I do not think that the category of “special circumstances” should be necessarily always so limited, it does seem to me that in its reference to special circumstances in relation to the duration of periodical payments, Parliament was intending the court ordinarily to look at special circumstances related to the children

– such, for example, as some physical or other handicap.”

Whilst Sch 1 gives the court power to order the transfer of a house (or the payment of a lump sum for the purchase or provision of a home) to a child otherwise than on terms that the property reverts to the father at the end of the child’s dependency, as far

Mr Howard and Ms Moys argue that the authorities and the Law commission report make clear that outright capital provision can be made. The Act specifically provides for it. The limitation on the duration of orders which applies to periodical payments cannot apply to capital provision which in terms of lump sums or property adjustment orders is inapt given the nature of the orders. The question is in what circumstances can those orders be deployed when Parliament’s purpose and the authorities identify that the act is designed to provide financial support for children during their minority or when there is some dependency.

In the case of Chamberlain v. Chamberlain [1973] 1 W.L.R. 1557, Scarman L.J., at pp. 1564 and 1565 said:

“There are no circumstances here to suggest that any of the children had special circumstances which required them to make demands on their parents after the conclusion of their full time education. The capital asset, the house, was acquired by the work and by the resources of their parents, and provided that the parents meet their responsibilities to their children as long as the children are dependent on them, this seems to me an asset which should then revert to the parents.”

In the matrimonial case of Griffiths v Griffiths [1984] 3 WLR 165, in which a lump sum order out right for the benefit of the children was upheld, the Court of Appeal emphasised the fact that Lord Justice Scarman’s comments in Chamberlain had been qualified by the requirement that parents actually meet their responsibilities to their children. Although decided under the Matrimonial Causes Act 1973 the powers utilised were equivalent to the Sch 1 powers. The father also relies on the dicta of Lord Justice Orr in Lilford v Glynn [1979] 1 All ER 441 which suggests that outright transfers or settlements to provide income for life are inappropriate even amongst the richest parents in respect of children who are under no disability and whose maintenance and education are secure.

Mr Howard also submits that the Law Commission ((1982) (Law Comm 118)) evidently envisaged that both capital orders and property adjustment orders could be used to cater for a situation in which a father “…intends to have no further relationship with the child” and emphasised that whilst substantial capital orders made in favour of children are rare they are available in an appropriate case.

Mr Pocock relies on the long line of authority which identifies the purpose of the powers contained within Sch 1 and the very limited circumstances in which financial provision beyond the age of 18 or the end of education are provided for in terms of periodical payments and lump sums. He refers me to what Charles J said in MT v OT 2008 2 FLR 1311:

“[87]…if you look at the powers contained in Sch 1, para 1(2)(d) and (e) on their face they could be used to make an absolute transfer of property to a child or a settlement of property which gave a beneficial interest to a child when attaining a certain age. However, if one goes on to look at the provisions concerning the circumstances in which a person over 18 can make an application, and the duration of orders for financial relief and the definition of a child, the analogies between the provisions of the Matrimonial Causes Act 1973 and Sch 1 are so close that in my view there is effectively for present purposes a complete overlap. The cases concerning the Matrimonial Causes Act 1973 demonstrate that having regard to the scheme and purpose of the legislation – and thus as a matter of statutory construction – the powers in para 1(2)(d) and (e) should only be exercised so as to confer an absolute interest on the relevant children in special circumstances. As will appear from the cases under Sch 1, the court has held that those special circumstances are special circumstances relating to the children – and not, for example, the extreme wealth of a father. They include, for example, whether a child suffers from a disability and matters such as that.”

And later

“[101]… it is only in special circumstances that capital provision should be made for a child after dependency. Those special circumstances do not include the wealth of the child; nor do they include a point that the child might not benefit on the death of the father.

He also draws my attention to what has been said more recently, in Re A (a child) (Financial Provision: Wealthy Parent) [2015] Fam 277, CA, at para 9 where Macur LJ referred to this "well-established practice":

“[9] Bodey J ordered the purchase of the freehold but declined to depart from the well established practice of maintaining a reversionary interest for the father when S completed his tertiary education…”

She continued, reflecting Johnson J’s concern in T v S (supra), as cited in the Summary, to emphasise that Sch 1 was not to be used to make

“by the back door, financial provision and compensation for the carer beyond that element attributable to the care of the child during his minority, or other determined duration of dependency. There is no established authority to the contrary…”

In Re N (Payments for Benefit of Child) [2009] 1 FLR 1442, the district judge at first instance had determined that the settlement in favour of a child should terminate when the child attained the age of 21 or full time tertiary education, whichever is the later. Munby J held that the district judge had erred in that case in requiring the settlement to continue to the child's 21st birthday (although there was no error in continuing to tertiary education). Munby J reviewed the authorities.

The net effect of all of the authorities is clear. Absent special or exceptional circumstances capital orders which provide a benefit beyond minority or the cessation of tertiary education should not be made. It is equally clear that what can amount to special or exceptional circumstances is restricted. Matters relating to changing societal attitudes, the wealth of a parent, or the like will not suffice. Disability creating an ongoing need for support might. The absence of a parent playing any supporting role for their child might. The appellate courts have recently eschewed glosses upon statutory language. In this case the identification of exceptional or special circumstances warranting the making of outright capital orders for the benefit of children does not seem to me to amount to a gloss but rather is an application of the statutory powers based on principles which emerge from case law. The power to make outright capital transfers exists but will only be deployed in limited circumstances and where the evidence justifies it. It seems to me that what one is focusing on is the child and whether there is something about this child or this child’s situation in particular vis-à-vis that parent that creates a situation which exceptionally (i.e. as an exception to the usual rule) generates a need for the child to be provided with capital which will be of benefit to them as an adult possibly for many years.

The usual mechanism for the provision of a home has been a trust mechanism. In a limited number of cases the vehicle of a long lease has been used. This is not an order that the court can make but rather has been deployed by way of undertakings. It may have financial advantages in some situations in terms of the tax consequences.

In advance of the hearing commencing I was provided with a core bundle comprising two lever arch files. I was also provided with two lever arch files of exhibits. In addition I was provided with two lever arch files of authorities containing 22 separate authorities. In the course of the hearing I was provided with seven further authorities. Various other authorities were referred to in the parties’ documents which were not provided to me.

On behalf of the parties I was provided with some agreed documents. These were:

The mother’s team provided me with a skeleton argument of 20 pages. Although Mr Howard indicated that he would not provide any written document for his closing submissions, I having made clear that I would accept either written submissions or oral submissions but not both, in fact Mr Howard and Miss Moys sought to have their cake and eat it by providing detailed written submissions on legal points which Miss Moys intended to address following the completion of Mr Howard’s submissions. By the time Mr Howard finished his submissions at around 4:20pm it was not possible for me to deal with the detailed legal submissions that Miss Moys wished to make in support of the mother’s contention that the court could make a lump sum order in respect of TD who is now 18 and has not made an application himself, and including an invitation to me to conclude that Sch 1 was discriminatory in respect of the children of unmarried parents and that in accordance with s.3 of the Human Rights Act 1998 I ought to interpret various provisions of Sch 1 so as to permit the court to make orders in respect of DD, a child who had reached the age of 18 prior to the date of application. Having stated that I would not accept both oral and written submissions and given the time we had reached I directed that the issues of law set out in Ms Moys’ document would have to be considered by me on paper after the father had had an opportunity to respond in writing. That has necessarily delayed my decisions and the preparation of this judgment.

On behalf of the father Mr Pocock and Ms Kelsey provided me with a 21 page Skeleton Argument. That was supplemented by a very detailed position statement setting out the father’s case in respect of each of the agreed key issues and those which had emerged immediately prior to the hearing.

The parties invited me to pre-read the following documents:

Prior to the commencement of the hearing and during the course of the hearing I was able to read a number of other documents and was taken to many of the exhibits in the course of the oral evidence. In particular I have read the original Cafcass report of Ms Bond of July 2018. I was also provided with a variety of additional documents including

I heard evidence from the mother over the course of a day, from the father over about 1 & ½ days and from HF.

Oral submissions were made on 27 January and as a result of the way in which the issues on jurisdiction to make orders in respect of the adult children had emerged I adjourned to enable the father’s team the opportunity to respond in writing to the mother’s written submissions. The way in which the legal issues relating to my jurisdiction to make orders in respect of DD and TD developed was unfortunate. It did not enable me to explore the issue in oral argument. The way in which the mother's case was presented was to focus on the factual and evaluative issues with Mr Howard devoting the vast majority of his submissions to those issues and delegating the legal issues to Ms Moys. Given the boldness of the submissions, their reliance on s.3 of the Human Rights Act, issues of discrimination, and the interface between legitimate statutory interpretation and declarations of incompatibility, the way in which the mother's team prioritised matters plainly did not permit of any detailed consideration in court. Given the considerable number of other issues in the case I confess it has not been possible in the course of the preparation of this judgment to dedicate the time to those legal issues which they might otherwise consume if time were unlimited. I have allocated what I consider to be a proportionate amount of time to them having regard to the apparently relatively limited priority that the mother's team gave them.

Insofar as I am required to make findings of fact (for instance in relation to whether the investor funds were a loan or a gift) my decision is made on the simple balance of probabilities. Mr Howard submitted that the burden on the investor funds issue lay on the father to prove that the monies were a loan and not a gift given that the funds were held by the mother in her account. In the event I do not consider that where the burden lies makes any difference in this case.

In reaching my conclusions I approach the evidence seeking to weave together all of the various aspects of the evidence; contemporaneous evidence, the parties’ written statements, the written statements of others, photographs, the oral evidence of the parties, the evidence set out in Cafcass reports, the findings contained in the judgments previously delivered in the case and all of the other diverse range of documentary material put before me. Insofar as material may be hearsay or untested by cross examination I bear this in mind in terms of the weight that I give it. In respect of the accountancy and buying agent evidence it does not have the status of part 25 expert evidence but I take it into account as documentary hearsay. I remind myself that drawing inferences from evidence is legitimate but speculation is not.

Plainly the credibility of the evidence of the mother and of the father is of considerable significance given some of the factual issues but also the evaluative issues that are in play in this case. Issues such as the basis on which the investor funds were provided to the mother as well as issues relating to the needs of the children in relation to housing and the maintenance of the children including the carer’s allowance will be significantly influenced by my conclusions as to whose evidence is the more reliable.

In assessing their credibility I have had regard to the consistency of their evidence over time, its consistency internally, its consistency with contemporaneous documents or other known facts or other witnesses, how it was given and whether the individuals had a motive to tell something other than the truth. I remind myself that the demeanour of the witness in giving their evidence can only be part of the picture. Some people are confident liars. Others are anxious tellers of the truth. Memory is in any event unreliable and a witness can be entirely genuine and indeed honest in their recollection but they may still be mistaken. However that does not mean that demeanour and body language are irrelevant. It is all a matter of context, judgment and degree. In respect of lies told by the parties I give myself a Lucas direction and remind myself that a party may lie for many reasons including fear or embarrassment and that the fact that a party has lied about one matter does not mean that they have lied about everything. In particular the fact that the father was found to have been dishonest in the fact-finding hearing does not mean that all his evidence is dishonest. Their evidence must be approached as set out above.

My overall conclusions in relation to disputes of fact are contained within the chronology at paragraph 128 below. In reaching my conclusions I have focused on the material which appear to me to be most significant. However the fact that I do not mention a piece of evidence or a point made either in examination of the witnesses, in a statement, or in the written or oral submissions of the parties’ counsel does not mean that I have not borne it in mind. In a judgment which will inevitably be of significant length it is simply not possible to rehearse all of the many and diverse pieces of evidence or advocacy that I have borne in mind.

The mother gave evidence through an interpreter although her statement did not require a translator’s declaration. She clearly has some facility in English. Her written and oral evidence were in the main consistent with each other. Her written statements are detailed and are in the main also consistent with each other. There is some development of her evidence over time, for instance in relation to the investor funds but given the purpose for which the original statements were deployed the absence of some detail in respect of various matters is not in my view an indication of subsequent fabrication. Most of her written and oral evidence was consistent with the documentary evidence that is available. Considerable criticism was directed at the mother in relation to her alleged dilatoriness in the presentation of her evidence or offers. I do not consider any matter which relates to the presentation of her open offer or her final statement are indicative of anything that would undermine her credibility; they are more likely to be a product of the logistics of the process. She was composed, moderate and polite in her approach. She is clearly highly intelligent and is fluent in money matters; her description of what various bank statements showed and her correction of counsel well illustrated this. On occasions when talking about matters directly relating to the children’s situation or the impact of events on them, for instance having to move, she became emotional. Not surprisingly as their primary carer throughout their lives she showed considerable emotional attunement with the children and insight into their states of mind. She said in relation to GD that when they moved to London her heart was in N City and still is. She also spoke of GD’s love for her father and how difficult it had been for her; she clearly being his favourite. Although at times she gave rather long narrative answers I did not gain the impression that she was being deliberately evasive. On several occasions she stopped to correct or clarify an answer she had given and she had the appearance of someone who takes care in what she says. There were occasions when she was demonstrated to have exaggerated, for instance [C286] when she asserted that the London Apartment had been their home throughout most of their lives. This was plainly inaccurate however it was a relatively isolated example. When she spoke of the father and her relationship with him she appeared in some respects to demonstrate regret, bitterness or anger, however this did not seem to dominate her thinking. The impression she gave was of someone who had been very much in love with the father and who had committed

My overall conclusion in relation to her evidence was that she was for the most part an honest and reliable witness who was not prone to exaggerate and was not motivated by greed or anger at the father. That is not to say that there is not some element of spin or exaggeration or opportunism in respect of some of the items she is claiming for. However where these are present I believe that it is motivated through insecurity for herself and for her children at what the future holds when the father’s obligations terminate.

This conclusion is consistent with that of Recorder Genn who found that notwithstanding times when the mother was not entirely straightforward, or where there were inconsistencies, a good deal of her evidence was compelling. She also found that money whilst an important backdrop was not the central issue for the mother. The findings she made in respect of the abuse that the mother alleged both in respect of herself and the children demonstrates, as indeed does the judgment overall, that Recorder Genn considered the mother and the children were for the most part giving a truthful account. Having regard to the extremely serious nature of some of the allegations which might at first blush have seemed florid, exaggerated or improbable the conclusion that the mother and children were telling the truth about them is important.

The father also gave evidence through an interpreter. His written statements are accompanied by a translator’s declaration. His evidence and his demeanour were far more variable than that of the mother. I shall deal with this in some more detail below. In general he was polite and respectful to the court although at times he and Mr Howard clashed. On occasions he became emotional when speaking of GD. It was abundantly clear that she holds a special place in his heart as his first daughter and that his attitude to his sons and GD were quite different.

Although the broad narrative of his written statements has generally remained consistent there have been changes of detail or emphasis in relation to facts or intentions which are significant. For instance in his statement of 12 April 2018 he stated that it was in 2008 that the mother suggested that she should relocate abroad in order to provide the children with an international education and that ‘it was very much a decision of her own making’. In a later statement of 24 January 2019 he said that it was shortly after GD’s birth in 2005 that he and the mother began discussing the possibility of her and the children relocating abroad. In his oral evidence he was clear that the idea for the mother and children to relocate was very much his idea. In his April 2018 statement he said that the London Apartment isn’t really a suitable home for the mother and children whilst in his statement of January 2019 he says that he had always intended the London Apartment to be the home of the children and the mother for as long as they were in her care. In April 2018 he said he and his wife and child would like to live at the London Apartment; I’m not sure why it would be appropriate for his wife and young child but not for the mother and the two older children. By January 2019 his position had changed on the basis that the London property market had changed very significantly over the previous two years. He did not elaborate on why some nine months before he wanted to retain it as his main home in London. His position in relation to the furnishing of the London Apartment has also altered. In April 2018 he said they furnished the London Apartment with a number of valuable antiques because they knew it was his home and his investment. In his statement of 7 May 2019 he describes how he has been collecting antiques with the principal purpose that he would ’like to help to promote and develop cultural life in my home town of N City’ and the only reason they were in the London Apartment was because he had put them there. These are a few examples of the shifts which are evident from his statements. In oral evidence he maintained that he had never said he would buy apartments for the other children and that DD was a special case because of his vulnerability. I was not really able to understand what the vulnerability was as the father seemed to be describing difficulties in DD forming attachments to women. However it is clear that in evidence to Recorder Genn [D29, #77] he had said he would by TD a flat. Thus there is considerable material which points to the father being inconsistent in his account.

The father is clearly a highly intelligent man and also a man with an extremely good memory. In his oral evidence he was able to identify without hesitation paragraphs within the mother’s evidence when he wanted to refer to something she had said. This made his apparent inability to recall various other matters very hard to understand. His answers to questions about the mother’s jewellery both in terms of what he had taken from her and in terms of the list of items which the mother had described being bought was wholly unconvincing and evasive. He suggested that an email from him to Credit Suisse directing the transfer of funds to the mother in 2006 may be a fake or had been modified. The mother produced the original. He said he could not give that money as it was the Foundation’s and all he could do was make a request as a beneficiary. When

Given his intelligence and his memory I do not believe that inconsistency is inadvertent. Of course there may be some examples where his memory has failed but the nature and extent of the inconsistencies which emerge are such that they point to a tailoring of his evidence to further his own case or to rebut a point made against him; it suits him now to say that DD was a special case because the mother argues that TD and GD should also have a flat because he bought DD one.

Most of the father’s evidence on contentious issues was rejected by Recorder Genn. She found that at times he was ‘making up points on the spot’, he was ‘long winded and evasive overall’, his evidence was ‘highly implausible’ and ‘he rather astonishingly said that [a document] was a fake’.

The father’s willingness to suppress information or to reframe to suit his cause or indeed to lie is illustrated from numerous sources. In his own statements he acknowledges that the emergence of his 7 year relationship with the mother caused his wife HD to divorce him and that he made the same mistake again concealing his relationship with the mother and the existence of his children from his second wife RD who also divorced him when she found out about them. His capacity to maintain a deception for seven years and then to repeat it with his second wife speaks volumes for both his willingness to deceive those closest to him and his ability to cover his tracks.

Both GD and TD have expressed their own concerns about their father’s honesty. When seen by Ms Bond TD portrayed his father as a ‘bullying, frightening, untruthful and manipulative father figure who he is anxious will influence [GD] against [the mother] and her two brothers by lying to her about them and denigrating them’ [E424] GD said ‘he’s lied so many times…the bad memories are too strong’ [E424]. Later GD told Ms Lacey that ‘she has many questions for him [the father] but she is concerned that he will not be truthful in his answers’ [D46]. In her letter [D47] she said ‘Today I don’t have contact with my dad and don’t plan on having any. Because I was lied to so many times by him, I do not trust him, and I feel that if I meet with him or FaceTime him, he will lie to me like he always has’. The father maintains that the children have made up the allegations of abuse, rejected a relationship with him and have depicted him as they have as a result of manipulation by the mother. He said he himself lied to support his mother when his parents separated. He says he does not blame his children for this and expects them to seek him out when they realise their errors.

The application for the investor visa required that the mother have control over the funds in her account and that they derived from her partner. The father was present at the meeting with lawyers. On his case he was neither the mother’s partner (he says intimacy ended in 2006) and nor did she have control over the funds and yet the application was made at his direction in circumstances which would indicate he was knowingly misleading the Home Office, even if he were not a signatory to the application. On the mother’s case there was no deception as she believed she was his partner and that she had control of the funds.

Thus there is a wealth of material which demonstrates that the father is capable of dishonest and deceptive behaviour when it suits him. He is not in general a reliable witness on any matter which might either be an affront to his pride, his status as head of the family, or which might otherwise be contrary to his position.

Although the father undoubtedly has qualities both as a businessman, as a father and as a partner he is also highly flawed. His desire to see his children make their way in life through their own efforts as he did, is in many respects laudable. However it ignores the very different life he has created for them both by his decisions as to their lifestyle and where they should be brought up but also by their domestic arrangements that he has created by his multiple families. It also of course ignores the abuse he has subjected them to, abuse which he simply does not accept. His characterisation of the very serious findings as behaving very inappropriately do not get close to an acceptance of the findings or acceptance of the impact on the mother and children of what he did. In his oral evidence he was difficult to pin down in terms of what he accepted. His ultimate position appeared to have reverted to his position as it was before Recorder Genn which was that the majority of the allegations had been fabricated by the mother in her pursuit of money. He did seem to acknowledge, although again I was not entirely clear from his oral evidence precisely what, that he had said and done things in the heat of the moment that he regretted and which were inappropriate. Although in general he gave his evidence in measured terms his capacity to become angry was demonstrated in exchanges between himself and Mr Howard when he became irate and said he would shout at Mr Howard if Mr Howard shouted at him.

He plainly was uncomfortable when being challenged in cross examination on a variety of issues. There were many occasions when he appeared to seek to regain some degree of control of the process by stopping Mr Howard, requiring clarification, insisting on giving lengthy narrative responses or by other means. When questioned about the investor funds he sought to control the questioning by insisting on precise figures being given albeit he undoubtedly knows the amounts being spoken about (his precision over paragraphs earlier shows this) and was just doing it in order to put himself in control. His later precision over the amounts of interest that she got on the investor visa bonds showed his facility with numbers and memory. Having earlier said that lawyers were present at the investor visa meeting he was later highly evasive about who was present at the meeting. When asked about the 3 day fact-finding hearing he asked for clarification of which hearing.

His oral evidence demonstrated a desire to be in control. Recorder Genn identified similar issues [D36, #105]. At one stage he commented in relation to the events of late 2017 and 2018 that he felt helpless. It seemed to me in reality that the problem was that he could not control events or in particular the mother and children at that stage. That he should seek control is hardly a surprise given his position. He has become an extremely wealthy and influential entrepreneur and is no doubt used to being in complete control of the business empire around him. The nature of his relationship with the mother and the children and that of his other partners and children would tend to reinforce his being in control. This is a product not only of his control of the finances but is a product of his personality and indeed at times he is a charismatic man. The force of his personality would I think be hard to resist. His evidence in relation to, for instance DD’s ears, was to the effect that he took charge and organised everything. This is typical of his approach. He needs to be in charge because he believes that he is best placed to be in charge.

The father clearly loves his children; his evidence about his ‘princess’ was associated with obvious displays of emotion. His evidence in relation to his sons also displayed an element of pride and affection. However his attunement to them and their emotional needs is limited by the dominance of his own personality and needs. He answered many questions about the mother and children by saying something about himself. It is self-evident that the father’s needs come first in any situation. The needs of his wife or partners and his children may be taken into account or met insofar as they do not clash with his. He seemed utterly oblivious to the impact on the mother or his wives, still less his children, of the parallel lives that he developed to suit his not their needs. His evidence both in written statements but also orally that he asked the mother if he and his new wife and daughter could come and reside at the London Apartment whilst they were in London and his apparent surprise at her angry rejection of this suggestion demonstrated he is oblivious to how others might feel. The emotionally abusive, indeed coercive and controlling behaviour, that Recorder Genn found him to have perpetrated both in threatening to tie the mother to a chair and stab her, in saying to GD that he was going to come to London and slit DD’s throat, in telling TD that he should beat up DD to make him return the money, and in threatening to evict the mother and children from their home and to return GD summarily to Russia showed a degree of ruthlessness, cruelty and utter disregard for the impact on the children’s emotions which can only be a product of an overwhelming need to fulfil his emotional need to be in control. His rejection of the findings, his characterisation of them as fabricated and a product of the mother’s pursuit of money demonstrate the continuation of this approach. There is no suggestion in his evidence that he has accepted any of the serious allegations; the effect of his evidence is to minimise them and even then to blame his behaviour on stress and his health. He has taken no responsibility for it.

He is plainly angry and frustrated by the mother’s behaviour since January 2018. After years of following his lead or bowing to his will her show of resistance in seeking an injunction and orders in relation to the children continues to rankle with the father. She was nothing to him now following her cruel behaviour in smiling as he suffered a heart event, and his dismissal of the allegations as a product of her manipulation of the children for financial gain plainly demonstrate his attitude to her now. His degree of frustration with her led him to breach a court order.

It is clear from his evidence that whilst he holds the mother very much responsible he absolves the children of any responsibility because he dismisses their evidence of his abusive behaviour and their evidence of how they feel as being an understandable product of the mother’s manipulation. Indeed he inverts responsibility saying that he forgives the children for what they have said rather than taking responsibility for what he has done. He said that he does not believe that GD is fearful of him. He relies on those parts of the Cafcass report and the mother’s evidence which identify that GD misses the father as supporting his position. What he does not recognise or accept is the psychological impact on GD of the conflict she feels internally trying to manage her fondness or love for her father with the awful behaviour that she knows he is capable of. He did not appear to accept there was any genuine need for the three children to have therapy as a result of his abusive behaviour; this being a logical corollary of his non-acceptance of it. It is plainly evidenced both within the Cafcass

The father’s older sons SD and ED are both part of his close circle and accompanied him to London for this hearing. Having built up a business empire he is keen to pass it on to his children. He was clear that he wished all of his children to return to Russia and participate in some shape or form in the business. This was particularly so in respect of the boys but it was clear that he also wished GD to return although perhaps there was some more flexibility to allow GD to pursue her artistic side. He said it was necessary for the children to take over the business and to continue the family dynasty.

The father is therefore a far more challenging character to gauge than the mother. Whilst of course he is capable of telling the truth and indeed did so in respect of various uncontentious matters in his statements and in the course of his oral evidence, where either his financial interests or his emotional interests were engaged his evidence can be highly unreliable and entirely subjective. This is particularly so in relation to any matter relating to his behaviour towards, relationship with and in regards to the future of the children. He is at present unable to be objective about the mother. Given she is, I conclude, able to identify with a good degree of emotional insight what her children’s emotional and other needs are, and insofar as it is possible for a mother in this situation to be objective about them, she is able to put her children’s best interests before her own. I consider her appraisal of the children and their needs to be far more reliable and accurate than the father’s which is wholly divorced from the reality of his behaviour and the issues that that gives rise to. In relation to factual matters and issues of finances which fall to be evaluated by reference to the parties’ evidence, for the most part I prefer the mother as a witness in terms of honesty, reliability and accuracy both on matters of fact and in her evaluation of the children’s current and future wishes and needs.

HF is an attorney (not based in England). He has assisted the father since 2004 when the father instructed him in relation to estate planning. He acted for the father with two Lichtenstein trustees as a member of the board of the Foundation.

He was called to give evidence by the father in relation to the sums paid to the mother in 2006 and in 2009. He provided a statement dated 12 November 2019 and he had previously provided letters dated 31 May 2018 which addressed the payments made to the mother from July 2009 to June 2010. He had also previously provided a letter dated 5 February 2019 dealing with the payments made to the mother in 2006.

It is clear that HF and the father have a close working relationship. He identified him on first name terms in his evidence and wrote to him similarly. He described regular telephone conversations and meetings and said that he trusted the father.

In distinct contrast to the sort of records that I expect would be kept by an English solicitor, the position in relation to HF’s recording of transactions arising from the father could not have been more different. That is not a criticism as I have little doubt

In the course of his evidence HF accepted that there were a number of inaccuracies in documents that he had prepared including in his witness statement which was of course accompanied by a statement of truth. In that he maintained that a payment from the Foundation of £46,850 on 9 June 2010 was a payment made to the mother in relation to the investor visa. This assertion had also been made in the letter of 31 May 2018. Cross-referencing to the mother’s bank statements made very plain that the payment was not made in relation to the investor visa but rather was made in relation to the rental of a property for the family. There are other inaccuracies including his assertion within his witness statement at paragraph 15 that following the obtaining of citizenship in late 2016 the mother should have repaid the funds to the Foundation. Given that he had accepted that the payments to the mother represented a distribution of funds to the father the mother had no obligation to repay the funds to the Foundation. HF described this as “imprecise”. He used the same phrase in relation to a letter written by him on 22 December 2017 [E311] where he described the Company as being owned 100% by the father when in fact it was owned by the Foundation. This not only illustrated imprecision but also demonstrated as did many other areas of HF’s evidence that the Foundation was the alter ego of the father. Although it had been plain from the evidence that the father was the sole beneficiary of the Foundation and could in practice direct the board to distribute the assets of the Foundation according to his will with in effect no practical discretion to decline to do his will, what had not been evident (at least to me) was that the terms of the Foundation actually allowed the father to manage the assets directly and to require for instance the bank Credit Suisse to make payments at his request and without further input from the board of the Foundation. This was certainly the case in relation to the payments made in 2009 and may have been the case in relation to the payments made in 2006.

HF referred to the Home Office guidance in relation to the requirements for an investor visa. At paragraph 12 C he set out an extract from it which confirmed that the funds that an applicant relied on could be money owned solely by their unmarried partner. What he did not include was that the applicant must have permission from her unmarried partner to have control of the money in the UK. I asked HF to explain how the mother had the father’s permission to have control of the money in the UK if she was under an obligation to repay the funds to the Foundation (or the father). The father himself had made clear in his evidence that it was his view that the mother had no right to deal with the capital at all but rather was entitled to receive the interest on the sums. The inference that one has to draw from HF’s evidence that the mother was under an obligation to repay the funds, not an equivalent sum but the same funds, was in line with the father’s evidence and would indicate that the mother in fact did not have control over those funds contrary to the requirements. HF and the father both gave evidence that they had been involved in the process of obtaining the visa. This would be entirely consistent with the pattern of the father being in control of events in the lives of the mother and the children. This raises the possibility that some form of misrepresentation may have been made to the Home Office as to the mother’s control of the funds if the father and HF’s evidence is correct.

The purchase of the London Apartment was originally made by the Company and was dealt with by HF. He was unable to recall much of the detail of this although it took place in 2010 and was thus much more recent than the 2006 payments. His evidence in relation to the letter of 22 December 2017 was also couched in cautious terms. He was ‘probably’ given the information in the letter by the father; it seems to me self-evident that he was undoubtedly given the instructions in the letter by the father, in relation to both the alleged ownership of the antiques, the nature of the antiques, the fear that there might be a conflict and the father’s intention to involve the police.

The overall impact of all of these matters leads me to the conclusion that HF’s evidence may not be as reliable as it appears at first blush. It is clear that he has a very close relationship with the father and his loyalties are to him. Relying on memory in relation to events 14 years ago is unsatisfactory. Memories are not recording devices and it is well recognised that sincerely held beliefs as to the accuracy of memory may well be wrong. The accumulated effect of the passage of time, later discussions and loyalties all play a role in affecting the reliability of memory. Apart from anything else even if HF were correct in his memory there is the possibility that the father in fact was saying something different to the mother and that his intentions were in fact quite different to those relating to HF. Overall I therefore do not gain much assistance from HF’s evidence in relation to the issue of why the funds were paid to the mother in 2006.

Set out below is a chronology of relevant events. Incorporated into it are aspects of the evidence which I consider relevant and where indicated constitutes my conclusions on the facts.