CF v KM [2010] EWHC 1754 (Fam)

[2010] EWHC 1754 (Fam)

Case No FD09P01325

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/07/2010

Before

THE HONOURABLE Mr Justice Charles

Between

CFApplicant

KMRespondent

Mark Johnstone (instructed by Davies Arnold Cooper) for Applicant

Rebecca Bailey – Harris (instructed by Kingsley Napley) for Respondent

Hearing Hearing dates: 29 June 2010

Judgment

Charles J :

[1]This is an appeal from a dismissal by DJ Aitken of an application by the Appellant Mother (the mother) of an application made under Schedule 1 of the Children Act 1989 for a lump sum payment for the benefit of her daughter (the child) to meet, or to contribute to,(a) the costs of the Schedule 1 claim (the Schedule 1 proceedings) and

(b) proceedings under the Children Act 1989 relating to where the child should be educated and where she should live (the s. 8 proceedings). The Respondent to the Schedule 1 proceedings and this appeal, and the applicant in the s. 8 proceedings is the child’s father (the father).

[2]The District Judge dismissed the application for such a costs allowance on the basis that she had no jurisdiction to make the order sought.

[3]The case was presented to the District Judge, and this appeal was opened, on the basis that the court had no jurisdiction to make an order for periodical payments to cover the costs allowance sought because this was precluded by s. 8(1) and (2) Child Support Act 1991. The basis for this approach was that a CSA assessment had been made in 2004 and, although a review was sought May 2010, this had not yet been completed and the present assessment was below the maximum assessment.

[4]The premise for that stance was and is that, unless and until the Commission make a maximum assessment, the Court’s power to order “top up” periodical payments pursuant to s. 8(6) Child Support Act 1991 is not engaged. I queried this, because it is not what s. 8(6) expressly provides, and I was referred to Re P

[2003] EWCA Civ 837

and H v C

[2009] 2 FLR 1540

. It seemed to me arguable that the court could determine the issue of fact that is part of the trigger to its jurisdiction set by s. 8(6)(b), namely whether the father has a net weekly income in excess of the figure set in regulations (at present £2,000 per week). It was common ground that the jurisdictional issue of fact set by s. 8(6)(a) is satisfied.

[5]Unsurprisingly, the mother’s counsel sought to adopt and pursue this argument which has two elements namely whether(a) the original common approach that the court’s jurisdiction is not engaged unless and until the Commission makes a maximum assessment is correct, and

(b) if not, whether the father’s net income exceeds £2,000 a week. Understandably counsel had not come prepared to argue point (a), and the evidence had not been directed to point (b). Consequently, as I indicated during the hearing, I concluded that the point could not be fairly pursued on this appeal.

[6]However, in my view, whatever the answer is to point (a) there should be a full two way street of disclosure relating to the father’s income and more generally his financial resources between the Schedule 1 proceedings and the Commission’s assessment.

[7]The jurisdictional issue on the appeal is therefore whether the court has power, where a child maintenance calculation below the maximum assessment is in place, to make a payment for the benefit of the child in respect of legal fees of the Schedule 1 proceedings and/or other proceedings (here the s. 8 proceedings).

The most relevant statutory provisions of Schedule 1 Children Act 1989

[8]These are, with my emphasis for present purposes: “Financial Provision for Children Orders for financial relief against parents 1(1) On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may– (a) in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2); (b) in the case of an application to a magistrates' court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.

(2) The orders referred to in sub-paragraph (1) are– (a) an order requiring either or both parents of a child– (i) to make to the applicant for the benefit of the child; or (ii) to make to the child himself, such periodical payments, for such term, as may be specified in the order; (b) an order requiring either or both parents of a child– (i) to secure to the applicant for the benefit of the child; or (ii) to secure to the child himself, such periodical payments, for such term, as may be so specified; (c) an order requiring either or both parents of a child– (i) to pay to the applicant for the benefit of the child; or (ii) to pay to the child himself, such lump sum as may be so specified; (d) an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property– (i) to which either parent is entitled (either in possession or in reversion); and (ii) which is specified in the order; (e) an order requiring either or both parents of a child– (i) to transfer to the applicant, for the benefit of the child; or (ii) to transfer to the child himself, such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.

(3) The powers conferred by this paragraph may be exercised at any time.

(4) An order under sub-paragraph (2)(a) or (b) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.

(5) Where a court makes an order under this paragraph– (a) it may at any time make a further such order under sub-paragraph (2)(a), (b) or (c) with respect to the child concerned if he has not reached the age of eighteen; (b) it may not make more than one order under sub-paragraph (2)(d) or (e) against the same person in respect of the same child.

(6) On making, varying or discharging a residence order the court may exercise any of its powers under this Schedule even though no application has been made to it under this Schedule. Matters to which the court is to have regard in making orders for financial relief 4 (1) In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including– (a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (3) has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (3) has or is likely to have in the foreseeable future; (c) the financial needs of the child; (d) the income, earning capacity (if any), property and other financial resources of the child; (e) any physical or mental disability of the child; (f) the manner in which the child was being, or was expected to be, educated or trained. (2) In deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, and if so in what manner, the court shall in addition have regard to– (a) whether that person had assumed responsibility for the maintenance of the child and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility; (b) whether he did so knowing that the child was not his child; (c) the liability of any other person to maintain the child. (3) Where the court makes an order under paragraph 1 against a person who is not the father of the child, it shall record in the order that the order is made on the basis that the person against whom the order is made is not the child´s father. (4) The persons mentioned in sub-paragraph (1) are– (a) in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child; (b) in relation to a decision whether to exercise its powers under paragraph 2, the mother and father of the child; (c) the applicant for the order; (d) any other person in whose favour the court proposes to make the order. Provisions relating to lump sums 5 (1) Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses– (a) incurred in connection with the birth of the child or in maintaining the child; and (b) reasonably incurred before the making of the order, to be met. (2) The amount of any lump sum required to be paid by an order made by a magistrates' court under paragraph 1 or 2 shall not exceed £1000 or such larger amount as the Secretary of State may from time to time by order fix for the purposes of this sub-paragraph. (3) The power of the court under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments by a parent shall include power to make an order under that provision for the payment of a lump sum by that parent. (4) The amount of any lump sum which a parent may be required to pay by virtue of sub-paragraph (3) shall not, in the case of an order made by a magistrates' court, exceed the maximum amount that may at the time of the making of the order be required to be paid under sub-paragraph (2), but a magistrates' court may make an order for the payment of a lump sum not exceeding that amount even though the parent was required to pay a lump sum by a previous order under this Act . (5) An order made under paragraph 1 or 2 for the payment of a lump sum may provide for the payment of that sum by instalments. (6) Where the court provides for the payment of a lump sum by instalments the court, on an application made either by the person liable to pay or the person entitled to receive that sum, shall have power to vary that order by varying– (a) the number of instalments payable; (b) the amount of any instalment payable; (c) the date on which any instalment becomes payable. Interim orders 9 (1) Where an application is made under paragraph 1 or 2 the court may, at any time before it disposes of the application, make an interim order– (a) requiring either or both parents to make such periodical payments, at such times and for such term as the court thinks fit; and (b) giving any direction which the court thinks fit. (2) An interim order made under this paragraph may provide for payments to be made from such date as the court may specify, not being earlier than the date of the making of the application under paragraph 1 or 2. (3) An interim order made under this paragraph shall cease to have effect when the application is disposed of or, if earlier, on the date specified for the purposes of this paragraph in the interim order. (4) An interim order in which a date has been specified for the purposes of sub-paragraph (3) may be varied by substituting a later date. Financial provision for child resident in country outside England and Wales 14 (1) Where one parent of a child lives in England and Wales and the child lives outside England and Wales with– (a) another parent of his; (b) a guardian of his; or (c) a person in whose favour a residence order is in force with respect to the child, the court shall have power, on an application made by any of the persons mentioned in paragraphs (a) to (c), to make one or both of the orders mentioned in paragraph 1(2)(a) and (b) against the parent living in England and Wales. (2) Any reference in this Act to the powers of the court under paragraph 1(2) or to an order made under paragraph 1(2) shall include a reference to the powers which the court has by virtue of sub-paragraph (1) or (as the case may be) to an order made by virtue of sub-paragraph (1). Orders for financial relief against parents such periodical payments, for such term, as may be specified in the order; such periodical payments, for such term, as may be so specified; such lump sum as may be so specified; such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order. Matters to which the court is to have regard in making orders for financial relief (a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (3) has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (3) has or is likely to have in the foreseeable future; (c) the financial needs of the child; (d) the income, earning capacity (if any), property and other financial resources of the child; (e) any physical or mental disability of the child; (f) the manner in which the child was being, or was expected to be, educated or trained. (2) In deciding whether to exercise its powers under paragraph 1 against a person who is not the mother or father of the child, and if so in what manner, the court shall in addition have regard to– (a) whether that person had assumed responsibility for the maintenance of the child and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility; (b) whether he did so knowing that the child was not his child; (c) the liability of any other person to maintain the child. (a) in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child; (b) in relation to a decision whether to exercise its powers under paragraph 2, the mother and father of the child; (c) the applicant for the order; (d) any other person in whose favour the court proposes to make the order. (a) incurred in connection with the birth of the child or in maintaining the child; and (b) reasonably incurred before the making of the order, to be met. (a) the number of instalments payable; (b) the amount of any instalment payable; (c) the date on which any instalment becomes payable. (a) requiring either or both parents to make such periodical payments, at such times and for such term as the court thinks fit; and (b) giving any direction which the court thinks fit. (2) An interim order made under this paragraph may provide for payments to be made from such date as the court may specify, not being earlier than the date of the making of the application under paragraph 1 or 2. (3) An interim order made under this paragraph shall cease to have effect when the application is disposed of or, if earlier, on the date specified for the purposes of this paragraph in the interim order. (4) An interim order in which a date has been specified for the purposes of sub-paragraph (3) may be varied by substituting a later date. (a) another parent of his; (b) a guardian of his; or (c) a person in whose favour a residence order is in force with respect to the child, the court shall have power, on an application made by any of the persons mentioned in paragraphs (a) to (c), to make one or both of the orders mentioned in paragraph 1(2)(a) and (b) against the parent living in England and Wales.

The mother’s jurisdictional arguments

[9]Although there was an overlap with the arguments advanced before the District Judge these were put differently to me and were that the court had power to make the lump sum payment sought: i) under paragraph 1(2)(c) of Schedule 1 having particular regard to the terms of paragraphs 1(3), (4), (5) and (6) thereof, essentially because paragraph 1(3) provided that the orders in paragraph 1(2) can be made at any time after a claim under Schedule 1 has been issued, and thus before it has been determined, and ii) under paragraph 9(1)(b) as a fall back argument.

[10]Correctly, counsel advanced the fall back argument very tentatively and in my judgment that power to give directions does not confer the power to make a substantive lump sum order. Rather, it is what it says it is, namely a power to give directions when the power conferred by paragraph 9 is engaged, and not a power to make a substantive order for periodical payments or a lump sum.

[11]During the appeal counsel for the mother adopted further alternatives that arose as a result of exchanges in court (and which had not been raised before).

[12]The first alternative was that there was jurisdiction to make the lump sum order the mother sought on the basis that the lump sum could be granted as a disposal of her present claim under Schedule 1 for a lump sum payment, leaving the mother able to make a further application for a lump sum within the present proceedings, or a further application for a lump sum, if and when she is so advised to do so.

[13]The second alternative was that the order she sought could be made now on a disposal of her present claim in its entirety on the basis that she would start a new claim. This has more problems in respect to the funding of the Schedule 1 proceedings because it would relate to a new claim, as well as the existing one. Also, the question whether she could then seek orders under paragraph 1(2)(d) and (e) was not investigated. This alternative is only relevant if the only jurisdiction to make a lump sum order in respect of costs is on disposal of all aspects of the existing Schedule 1 claim. As appears later I have decided that that is not the case.

[14]On both alternatives the lump sum order could include a provision for payments by instalments (see paragraph 5(5) of Schedule 1).

The father’s jurisdictional arguments

[15]I was taken through the history to the enactment of Schedule 1 primarily by reference to the Law Commission’s Report: Family Law: Review of Child Law: Guardianship and Custody (Law Com No 172, 1988). In the skeleton argument it seemed to me that the father might be seeking to place inappropriate weight on this Report, but in oral submission it was made clear that it was being relied on as a convenient place to look at the legislative history (and thus the mischief at which Schedule 1 was aimed and its purpose), and because Schedule 1 effectively enacts the Bill attached to it.

[16]At the heart of the father’s case is the assertion that paragraph 9 deals exclusively with interim orders in the sense in which that description is used in that paragraph (see paragraphs 9 (2), (3) and (4)) and thus any order that is to be made before the court disposes of the application (see paragraph 9(1)). The argument runs that as the making of such an interim order is expressly dealt with in paragraph 9: i) the only such interim orders the court has jurisdiction to make are orders for periodical payments, and so it has no jurisdiction to make an interim order (in that sense) for a lump sum, ii) here, that jurisdiction / power to make an order for periodical payments (on an interim or final basis) is excluded by s. 8(1) and (2) Child Support Act 1991, and so iii) the court does not have jurisdiction / power to make an interim order for a lump sum in respect of costs (or otherwise for the benefit of the child). Reliance was placed on the approach to construction that express enactment shuts the door to further implication (see Whiteman v Stanley

[1910] AC 514

at 527). This maxim “expression unius est exclusio alterius” is a well known approach to statutory construction which has been said to be no more than an application of common sense to legislative interpretation, and like other canons and principles of construction is not to be applied too rigidly. In its application, it has to be considered whether what is expressly provided for is something of the same kind as the thing in question. In its application here, I have to consider, in the context of the legislation as a whole, whether it is possible or appropriate to account for the inclusion in express terms of the power conferred by paragraph 9 of Schedule 1 and the effect on it by the enactment of the Child Support Act 1991 (inclusio unius) of an intention other than to exclude the power contended for by the mother (exclusio alterius) (see for example Dean v Wiesengrund

[1955] 2 QB 120

at 130).

[17]I was also referred to an article in [2009] Fam Law (one of the authors of which is the solicitor for the mother in M-T v T

[2006] EWHC 2494 (Fam)

and

[2007] 2 FLR 925

) which concludes that there is no jurisdiction to make an order for an interim lump sum, and the arguments and conclusion of the authors were adopted by the father.

[18]Further arguments on legislative purpose and public interest were advanced by reference to the impact generally of there being such a power in Schedule 1 cases, and having regard to the approaches referred to in Phillips v Peace

[2005] 2 FLR 1212

and taken under the MCA 1973 in Wicks v Wicks

[1998] 1 FLR 470

[19]An argument was also advanced that, if the court had jurisdiction to make an award in respect of the costs of the Schedule 1 proceedings, nonetheless it either did not have such a power in respect of the costs of the s. 8 proceedings because such a payment could not be said to be for the benefit of the child on the approach I took in MT v T, or that such a power should not be generally exercised and should not be exercised here. An aspect of this latter argument, and of the earlier public interest / legislative purpose argument, was a fllodgates argument.

Authorities

[20]It was common ground that there is no existing case that addresses the jurisdictional point raised on this appeal. The four cases on the extent of the powers under Schedule 1 identified by the parties were W v J (Child: Variation of Financial Provision)

[2003] EWHC 2657 (Fam)

[2004] 2 FLR 300

(Bennett J), Re S (Child: Financial Provision)

[2004] EWCA Civ 1685

[2005] 2 FLR 94

(Court of Appeal), MT v T

[2006] EWHC 2494 (Fam)

[2007] 2 FLR 925

(Charles J) and G v G (as yet unreported) (Moylan J).

[21]In G v G, Moylan J had the power to make a “top up” order for periodical payments because an assessment made by the CSA in the maximum amount had been made. Expressly, he was considering whether to make an interim order for periodical payments under paragraph 9 of Schedule 1. He considers the three earlier cases and concludes that the court has power to make an award “of interim maintenance” and thus in terms of Schedule 1 of “periodical payments for the benefit of the child”.

[22]To my mind, W v J has now been overtaken by the later authorities. In Re S the conclusion as to the extent of the jurisdiction as to what can be ordered in exercise of the statutory powers is based on the meaning and range of the application of the word “benefit”. This also founds my decision in M-T v T.

[23]M-T v T is part of the long saga of litigation between those parties. As is apparent the report is of an ex tempore judgment delivered against the background of material and orders known to the parties, but not to the reader of the report. The nature of the relevant order that I had made, and was considering, is not clear from the report. I have checked the order and confirm that the costs element was included within an order for periodical payments and that the capital sum of £250,000 was not a lump sum ordered under Schedule 1 but was a sum provided as a sinking fund from which periodical payments could be deducted given the history on non-payment. The reality in that case has been that the periodical payments ordered have been made from, or through, that fund in the UK and it has been topped up from time to time. The jurisdiction to provide for that fund either under Schedule 1 (e.g. paragraph 9(1)(b)), or as an aspect of the grant of the stay of the contested divorce proceedings (it being disputed whether the parties had been married in Nigeria, and I decided that this should be determined by the Nigerian courts) was not the subject of argument.

[24]The costs element of the award in M-T v T covered costs in respect of the Schedule 1 claim, and the proceedings in that case under s. 8 Children Act 1989. It was not argued (as here) that the power to make an order to cover costs did not extend to the costs of the s. 8 proceedings.

[25]I add that in M-T v T the order I made on the disposal of the Schedule 1 claim included a provision that the father should provide a fund to purchase a house for the mother and the twin girls, and that in setting the sum to be so provided and used I made an allowance for costs funded by the father for the benefit of the children. The effect of this was that the amount available for the purchase of the house was reduced. These provisions were effected by undertaking rather than by order under paragraph 1(2)(c), (d) or (e) and resulted in the father buying the house and letting it to the mother as a home for her and the twins.

[26]I agree with counsel that the Court of Appeal in Re S did not need to, and did not, address whether on its return to a judge of the Division that judge would(a) make an order on an interim basis under paragraph 9, or

(b) dispose of the claim (for the time being) and, if so, under which sub-paragraph of paragraph 1(2) of Schedule 1 the court would do so (because the restriction on jurisdiction in paragraph 14 to paragraphs 1(2)(a) and (b) would not or may not apply). The solicitor for the mother in that case represented the father in this one and I was told that the case settled.

[27]The conclusion on paragraph 14 of Schedule 1 in Re S was that it did not exclude jurisdiction when the payee, rather than the payor, was in this jurisdiction because, it was held that, paragraph 14 was not designed to cater exclusively for the only circumstances in which financial provision under Schedule 1 could be ordered for a child who was not in this jurisdiction (see paragraphs 30 (Wall LJ) and 34 (Black J)). So, that was not a case in which it was held that express enactment in respect of a child outside the jurisdiction excluded jurisdiction in respect of the child in that case - who was not here but who was habitually resident here and was outside the ambit of paragraph 14. Provision for the Benefit of the Child – In respect of the costs of the Schedule 1 proceedings and in respect of the costs of the s. 8 proceedings

[28]The statutory test “for the benefit if the child” expressly governs the making of all orders in favour of the applicant under paragraph 1(2) of Schedule 1 and unsurprisingly it has been held that this is the purpose and test under paragraph 9. So that purpose and test governs orders to the applicant (and against a parent)(a) on the disposal of the case,

(b) whilst a case is continuing,

(d) on applications for a further lump sum.

[29]To my mind, it is important to remember(a) that this is the statutory purpose and test, and

(b) that, although analogies with the jurisdiction under the MCA and the approach thereunder to (i) orders for periodical payments and lump sums, and (ii) interim orders for maintenance (under s. 22) are perhaps inevitable and can be instructive, the terms of the two statutory regimes are different. Importantly: i) the jurisdiction to make an award in respect of costs of Schedule 1 proceedings is because they are incurred for the benefit of the child and not because they fall within the meaning of “maintenance” within s. 22 MCA 1973, and ii) under Schedule 1, there is jurisdiction to make more than one order for a lump sum (see paragraph 1(5)(a) of Schedule 1), and no statutory requirement, or steer, to consider a clean break, or once and for all orders (other than in respect of orders for a settlement or transfer of property).

[30]Point (ii) reflects the point that Schedule 1 is directed to providing for the benefit of a child whose circumstances could well change during his or her minority and therefore (as for example pointed out by the Law Commission in paragraph 4.66 of their Report) in a sense all orders (except those under paragraphs 1(2)(d) and (e)) are interim because of the need to provide that they can be revisited in changed circumstances. But this use of the description “interim” is different to one that reflects, or is directed to, an order made on an application in existing proceedings and before they are determined.

[31]Costs of the Schedule 1 claim. Before me, in my judgment correctly, it was accepted that the court has jurisdiction to make an order that provides for the payment of costs incurred in advancing a claim under Schedule 1 because such an order can be “for the benefit of the relevant child”. It follows (and this was not disputed) that when disposing of all aspects of the present claim the court could make an order for a lump sum for the purpose of funding such costs and is therefore not limited to leaving issues relating to such costs to the different discretion to make an order as to who should pay the costs of proceedings.

[32]The jurisdictional issue was therefore that such a provision for costs (and one in respect of costs of the s. 8 proceedings) cannot be made whilst the proceedings are in progress because the Child Support Act 1991 has precluded the court from making any order for periodical payments under Schedule 1 and thus any interim order under paragraph 9 thereof.

[33]The effect of this jurisdictional argument is therefore that at the substantive (final) hearing the court can make an order that funds (or contributes to the funding) of costs incurred for the benefit of the relevant child but it cannot do so earlier so as to assist and therefore benefit the child during the substantive (final) hearing.

[34]The costs of the s. 8 proceedings. These could not be awarded under the discretion relating to the payment of the costs of the Schedule 1 proceedings. In respect of them the same jurisdictional point arises and, in addition, it is argued that an order for periodical payments or a lump sum to cover such costs cannot be for the benefit of a relevant child.

[35]This was argued from my analysis in M-T v T, in which as I have said (and is not apparent from the judgment) the order covered costs of s. 8 proceedings (and a separate argument was not advanced in respect of those costs). The father’s argument was that the non-technical “representative” capacity of a parent seeking financial provision under Schedule 1 does not apply because the parent in s. 8 proceedings is not acting in any representative capacity, but is putting forward proposals as to the best interests of the child for the adjudication of the court.

[36]I do not agree with this argument. Generally, in my judgment, the investigatory element of s. 8 proceedings founds the conclusion that a provision directed to funding some or all of the costs of a parent can be for the benefit of the child because it would promote the result that the court is fully informed as to all relevant factors and views. So, for example, in my view, the “equality of arms” point can apply in s. 8 proceedings just as it has been found to warrant a provision for costs in Schedule 1 proceedings.

[37]Next, in my view paragraphs 28 and 31 of the judgment of Wall LJ in Re S support that conclusion (and the view that the discretionary jurisdiction needs to be exercised with care and sparingly).

[38]Finally, the weakness of the father’s arguments on jurisdiction (rather than discretion) was demonstrated by the acceptance by his counsel that a provision for costs in respect of an application under s. 8 Children Act 1989 for a specific issue order (the example accepted was for the cost of medical treatment) could be said to be for the benefit of the child. In my view counsel was correct to accept this, but this acceptance shows the weakness in her argument on behalf of the father because, just as in residence and contact disputes, on such a specific issue application the paramountcy principle applies, as does the investigatory nature of the proceedings with the aim of identifying what will best promote the welfare of the child.

[39]So, in my judgment, the separate arguments advanced by the father in respect of s. 8 proceedings (including the point that generally in s. 8 proceedings no order for costs is made) go to the exercise, rather than to the existence, of the discretion.

The interplay between paragraph 9 and paragraph 1 of Schedule 1

[40]Looking at the earlier legislative history (described in Re S as confused and confusing – see paragraph 14 (Thorpe LJ), where he stated that he did not derive any particular guidance from it)(a) paragraph 1(3) is new,

(b) the reference to “at any time” in paragraph 1(5)(a) reflects the earlier provision, but

(d) paragraph 1(6) is new, but reflects, at least in part, s. 34 Children Act 1975and

(e) paragraph 9 removes complicated timing provisions and reflects the provisions set out in Schedule 1 Family Law Reform Act 1987, but uses the phrase “at any time before it disposes of the application” rather than “before it makes a final order or dismisses the application”.

[41]In my judgment, a first impression and a natural reading of the interplay between paragraphs 1 and 9, when they are read together in their overall context is that: i) paragraph 1 is focused on(a) orders made on the disposal of the Schedule 1 claim at a final hearing, and

(b) future orders if and when earlier orders are revisited, and ii) paragraph 9 is focused on orders made during the relevant Schedule 1 proceedings and thus pending the making of orders sought under paragraph 1 at the substantive hearing of that claim, whether it be for periodical payments, a lump sum or other relief. They can therefore both be said to be directed at orders that can be described as orders that are interim in different senses namely: a) orders at substantive or final hearings for periodical payments or a lump sum that can be revisited by the making of further such orders or by them being varied, and b) orders in the sense used in paragraph 9, namely orders made in proceedings before they are disposed of at their substantive or final hearing.

[42]This interpretation and application: i) clearly reflects the language of paragraph 9 when it is read alone, and means that ii) paragraph 1(3) falls to be read as relating to the making of an order at a substantive or final hearing of a claim (or a part of a claim) on application by a party, or by the court when making, varying or discharging a residence order or in respect of a ward of court. In that sense paragraph 1(3) is redundant or repetitive in the context of paragraph 1(5) but sets out, or at least clarifies, the position under paragraphs 1(2), (4), and in particular (6) and (7).

[43]I therefore do not agree with the mother’s argument that paragraph 1(3) is redundant unless it is interpreted to mean that the powers can be exercised during the currency of, and thus prior to the disposal of, current proceedings.

[44]But, in the absence of paragraph 9, in my judgment: i) the language of paragraph 1(3) is wide enough to be interpreted, and ii) paragraph 1(3) would be interpreted and applied, as conferring power to make orders during the period leading up to the substantive hearing of a current claim (and thus to make interim or interlocutory orders in that sense). I shall refer to this as “Jurisdictional Basis One”.

[45]Also, when it is read alone, in my judgment the language of paragraph 1 enables the court: i) to make an order for periodical payments or a lump sum (possibly by instalments) on the basis that a further order for periodical payments or a lump sum can be applied for and made at any time, and to do so ii) on the basis that such an order disposes of the claim within the current Schedule 1 claim for periodical payments and/or a lump sum (possibly by instalments). I shall refer to this as “Jurisdictional Basis Two”.

[46]The centre of the jurisdictional argument is therefore whether both Jurisdictional Bases One and Two are excluded by: i) paragraph 9 of Schedule 1, and/or ii) arguments relating to the underlying purposes of the relevant legislation and thus the Children Act 1989 and the Child Support Act 1991 and the public interests they advance.

[47]Since its enactment, Schedule 1 has been construed on the basis that by using the test “for the benefit of the child” Parliament intended to confer a power to make an award to cover costs of the Schedule 1 claim itself and other litigation costs.

[48]This interpretation applies to all orders and therefore to an order for a lump sum (possibly by instalments) which is made because the paying parent has financial resources apart from income, as well as to orders made under paragraph 9 of Schedule 1 by reference to income (or other financial resources).

[49]This case law did not exist when the Child Support Act 1991, which by its impact founds the father’s argument on jurisdiction, was enacted. The questions therefore arise whether it was the intention of Parliament: i) when providing by the Child Support Act 1991 that in certain circumstances no award for periodical payments could be made (on an interim or final basis), and/or earlier ii) when passing the Children Act 1989, that if and when jurisdiction to make an order for periodical payments and thus an order under paragraph 9 was excluded, an order for a lump sum to fund such costs, or other expenditure for the benefit of the relevant child could only be made as part of a final determination of all aspects of a current claim under Schedule 1.

[50]An analogous point arose in Re S in respect of paragraph 14 of Schedule 1, which like paragraph 9 thereof(a) is necessarily in permissive terms because it confers a discretion, and

(b) does not begin (like paragraph 5 thereof) with a formula that recognises that it is without prejudice to the generality of paragraph 1 or other powers. In respect of paragraph 9: i) the analogous question to that posed by Wall LJ in Re S in respect of paragraph 14 is whether paragraph 9 caters exclusively for the only circumstances in which an interim order (in the sense in which it is used in paragraph 9) can be made, and there is a further question, namely ii) whether, if the power conferred by paragraph 9 does not apply because it has been excluded or suspended by the Child Support Act 1991 (or otherwise) the court can make an interim order in a different sense by disposing of the existing application for a lump sum (leaving it open for the applicant to seek a further order for a lump sum, if so advised).

[51]These issues fall to be answered against the backdrop that: i) the main purpose of Schedule 1 is to make financial provision for the benefit of a child, ii) by definition, the issue only arises when the power of the court to make such provision, by way of a final order, and potentially further orders, for a lump sum is engaged albeit that the jurisdiction to make any final or interim order for periodical payments is excluded by the Child Support Act 1991, and iii) in making an order under Schedule 1 the court takes into account all of the financial resources of the non resident parent (as defined in the Child Support Act 1991, see s. 3(2)) and thus the paying parent under both statutes.

[52]Also, it seems to me that these issues have to be assessed against a wider canvass than an order to provide for costs for the benefit of a child. This is because if the jurisdictional argument is correct it would exclude the making of an order for a lump sum at this stage of the present proceedings for another purpose and in reliance on financial resources that would not (or may not) be taken into account in determining the paying parent’s net weekly income for the purposes of the Child Support Act 1991.

[53]This takes me back to the example of a need for the funding of urgent medical treatment which could lead to a full recovery but might be less successful, or wholly unsuccessful, with the alterative consequences that the child might have special needs or might die. This range of possible results would have a significant impact on what should be provided in the future for the benefit of the child and thus on what further orders (if any) should be made, for example, in respect of housing.

[54]To my mind it would be surprising if Parliament intended by a combination of paragraph 9 of Schedule 1 and the Child Support Act 1991 to exclude the court from making a lump sum order for such a purpose from capital, or from financial resources other than income taken into account in determining the paying parent’s net weekly income, or indeed if as a matter of fact the paying parent’s net weekly income (assessed by reference to the relevant regulations under the Child Support Act 1991) exceeds the relevant maximum referred to in s. 8(6) Child Support Act 1991.

[55]Against that background, in my judgment, a purposive approach strongly supports the view that, without expressly doing so (which it has not by the Child Support Act 1991 or otherwise) Parliament would not have intended to restrict the jurisdiction of the court to making a lump sum order only on the final determination of all aspects of an existing and current claim under Schedule 1. The essential reason for this is that such an intention would run counter to the central underlying purpose of Schedule 1 Children Act 1989 to enable the court, in the exercise of a judicial discretion, to provide fair and appropriate financial support for the benefit of a child, having regard to the financial resources of the paying parent, on a properly informed basis from time to time.

[56]This essential reason also founds the view that Parliament intended that from time to time for the benefit of the child in the circumstances of the case the court could: i) make an order in respect of any part of the claim (or under any power) that had not been expressly excluded, and thus an order for a lump sum, and ii) adjourn parts of the claim (namely those under paragraph 1(2)(d) and (e)) as they could not be re-opened or looked at again) so that they could be considered on a properly informed basis in the light of the future events.

[57]The purposive approach therefore supports both Jurisdictional Bases One and Two.

[58]Further, as indicated above, in my judgment, a linguistic approach: i) to paragraph 1, when it is read alone, does not found that result but founds Jurisdictional Basis Two, and ii) that approach to paragraph 1 is not one that results in the court making an interim order in the sense in which that term is used in paragraph 9.

[59]In my judgment it follows applying a purposive and literal approach that paragraph 9 does not have the effect that if and when the court has no jurisdiction to make a periodical payments order (because of the Child Support Act 1991 or otherwise) it also has no jurisdiction to make a lump sum order other than as a part of the overall disposal of all aspects of an existing Schedule 1 claim on a final basis (subject to the possibility of a further claim for a lump sum order being made or a top up order being made if and when s. 8(6) Child Support Act 1991 applies).

[60]I add that, in my judgment, this conclusion is supported by analogy by the decision Re S on paragraph14.

[61]Also in my view the maxim relating to statutory interpretation relied on does not operate to found a different conclusion because the common sense that underpins it does not apply. The reason for this is that although there is an overlap between orders under paragraph 9 Schedule 1 and the exercise of a power to make lump sum orders from time to time: i) this is not complete because, as I have explained, orders for lump sums can be made from time to time (and so on an interim basis in a different sense to that used in paragraph 9) and by reference to any part of the financial resources of the paying parent and thus (and this was not disputed) not only to those taken into account under the Child Support Act 1991, and the relevant Regulations relating to it, and therefore ii) the two powers are not sufficiently the same or of the same kind, to engage the maxim when Schedule 1 is read alone and without reference to the impact of the Child Support Act 1991, and iii) it is possible and appropriate to conclude that when enacting the Child Support Act 1991 Parliament was not intending directly or indirectly to prevent payments being made to or for the benefit of a child other than pursuant to a maintenance order (as defined) and thus other than by way of periodical payments.

[62]Argument as to whether the jurisdiction is based on: i) Jurisdictional Basis One, namely that if and when the power in paragraph 9 is excluded (or perhaps is inappropriate, because the provision would be better made or classified as a lump sum) paragraph 1(3) is given a wide meaning in accordance with what it says if it is read alone, or ii) Jurisdictional Basis Two, namely that the lump sum order is made by the court as a disposal of the existing claim for a lump sum (adjourning the claims under paragraph 1(2)(d) and (e)) and on the premise that the Applicant could seek a further lump sum if so advised, is an exercise directed to form rather than substance.

[63]I therefore do not propose to dwell on it. However, and although I have concluded that the lump sum order sought by the mother can be granted on Jurisdictional Basis One, as a matter of form, I propose to adopt Jurisdictional Basis Two because it would apply if I am wrong about Jurisdictional Basis One (and in any event).

Purpose and public interest arguments

[64]In reaching the conclusion set out above I have not forgotten these arguments and I have taken them into account. Also they are relevant to the exercise of the discretion.

[65]I accept that: i) an underlying purpose and theme of the Child Support Act 1991 is to remove from the court the jurisdiction to make orders for periodical payments in the circumstances provided for in that Act, and ii) the court should not use its powers to circumvent that purpose and theme.

[66]The second point gives rise to difficulty of definition and degree as to whether the purpose lying behind the payment of a lump sum (possibly by instalments) relate to matters and expenditure that Parliament has decided should be dealt with under the Child Support Act 1991 and the Regulations made as to its operation (see the general way in which this is put in Phillips v Peace). But in my view: i) the example I have used of medical treatment is analogous to the example used there by Johnson J, namely a lump sum to meet capital expenditure to modify a house for a child who suffers a physical handicap, ii) an order to provide for costs of either the Schedule 1 proceedings, or s. 8 proceedings is not within the types of expenditure to which the maintenance calculation under the Child Support Act 1991, and the relevant Regulations, is directed, and iii) a lump sum order can be based on capital and other financial resources apart from income as assessed for the purposes of the Child Support Act 1991 and the relevant Regulations (which were not examined in any detail before me but are focused on income – see for example SI 2001 No 155) and therefore the discretion to make a lump sum order in respect of costs as a final order, or on the bases set out above does not circumvent, undermine or run counter to the underlying purpose and theme of the Child Support Act 1991.

[67]In my view the floodgates argument that my conclusion on jurisdiction will lead to applications up and down the country for lump sum orders to provide for costs of the Schedule 1 proceedings and/or s. 8 proceedings between the same parties is unconvincing because: i) such an application would only have a sensible chance of success if the non resident parent has capital assets or financial resources from which a lump sum could be paid or which would warrant a settlement or property transfer order being made, ii) in most cases where s. 8(6) does not apply this would not be the case, and so there would be no realistic claim under Schedule 1 for any purpose, and iii) authorities on the exercise of the discretion would establish that provision in respect of costs would only be made in limited circumstances, and in particular after the court had had regard to(a) whether such an order would be unfair to the paying parent,

(b) whether there was real prospect of a substantial award being made under one or more of paragraphs 1(2)(c) to (e) against the paying parent because of his financial resources and

(c) the prospects of such costs (or some of them) being recouped by deduction from the award that the paying parent was ordered to pay, settle or transfer.

Discretion

[68]As I said in M-T v T, the existence of the discretionary jurisdiction does not mean that it will be exercised.

[69]I also record that it in my judgment it is very important to remember that the exercise of the power can cause considerable unfairness to the payor because he or she is funding both sides of a case, and runs the risk of never being able to recoup either set of costs.

[70]In G v G Moylan J helpfully comments on cases relating to the approach to be taken under the MCA 1973 on ordering a payment in respect of the costs of the other side (namely Currrey v Currey (No 2)

[2007] 1 FLR 946

in which the Court of Appeal give guidance and consider Moses-Taiga v Taiga

[2006] 1 FLR 1074

(another round in the M-T v T saga), TL v ML

[2006] 1 FLR 1263

and other earlier cases). These cases are obviously helpful by analogy and I have so applied them. But, it seems to me, that the different nature of the proceedings and orders under Schedule 1 needs to be remembered and an aspect of this is that the risk of non-recoupment is different, and probably higher, in respect of a claim under Schedule 1 than it is in respect of a claim under the MCA 1973.

[71]The cases under the MCA 1973 and Schedule 1 confirm that the possibility and prospects of recoupment need to be evaluated, particularly if there is a risk that the Applicant will seek to advance an exaggerated claim on behalf of the child, or there is a risk that recoupment would be likely to significantly undermine the effect of, and thus the benefit to a child of, an order for financial provision. The latter was not the case in M-T v T because I concluded that the sum available after a deduction for costs was adequate to provide appropriate housing for the twins (and their mother).

[72]As I understood it, it was common ground that the mother could not obtain public funding on the basis that she is bringing the Schedule 1 proceedings in a representative or quasi-representative capacity, or for the s. 8 proceedings. In my view this should be checked.

[73]The father put in evidence to the effect that the mother could fund the litigation. To my mind, the mother through a further statement in response answered the points he made in his statement satisfactorily.

[74]The mother however failed to answer with any particularity questions raised in correspondence as to the source of finance for the costs she has incurred and paid (£5,750) and more importantly the arrangements made for the payment of the balance of costs already incurred by her solicitors and her future costs. I (and the father’s representatives) were given a schedule during the hearing that was added to orally. I was left in considerable uncertainty as to what the estimate for future costs was. However, I was told that costs of about £50,000 (the figure in the schedule provided and referred to in the wife’s skeleton was about £45,000) had been incurred of which £18,135 related to costs already incurred on the s. 8 proceedings. This paucity of detail is unsatisfactory.

[75]The upshot of these points is that, subject to the gaps about the arrangements made in respect of costs incurred and to be incurred, the evidence indicates that the mother does not have a source to which she can reasonably turn to fund future (or past) costs.

[76]The sum sought was £25,000 (plus a further lump sum payable by instalments of £2,500 a month for 9 or 10 months) and so £47,500 or £50,000. This seems to equate to the quantification I was given of costs already incurred rather than an estimate of future costs (which was not provided).

[77]Notwithstanding the conclusion set out in paragraph 75, the gaps in the mother’s evidence, and by way of answer to questions properly raised in correspondence, concerning past and future funding however lead me to conclude that at this stage I should only make an award under Schedule 1 in respect of costs to be incurred rather than costs that have been incurred.

[78]The father’s written evidence also contained allegations as to his financial position which he asserts is straightforward but an examination of what he says namely:

“ My remaining assets relate to my shareholding in XY Investment Advisers Ltd and XY Investments Ltd, which are the corporate vehicles through which I conduct my investment business. Both are unlisted and sustained significant losses in the last financial year. My shareholding is not realisable. In any event, these companies are the mechanism through which I derive my income (I am employed by XY Investment Advisers Ltd), which in turn I rely upon to meet my outgoings, and also to pay child support for [the child’s] benefit. Cash flow for both of the companies is poor. The chief asset of XY Investments Ltd is a debtor that might or might not be recoverable.”

[79]It seems to me that the phrase “my remaining assets relate to my share holding in” two of the XY companies is carefully chosen and that when what he says is compared to his Form E, and the information contained in extracts from public documents and accounts, it is far from clear that his situation is relatively straightforward, as he asserts and/or that he has given a full, frank and clear description of his financial resources. There is also a dispute as to the value of his home.

[80]It is clear that the father has a significant role in, and direct and indirect interests in, the “XY” companies. On the information before me the extent of these is not clear. He is a sole or significant shareholder in XY Investment Advisers Ltd and XY Investments Ltd. But their place in the overall structure is not clear on the papers I have seen.

[81]The notes to the accounts of XY Investment Management Ltd state that XY Malta Employee Trust is the ultimate controlling party of that company through XY Holdings Ltd. This Employee Trust was not mentioned in submissions. My recollection is that such trusts can have some fiscal advantages, and can be utilised (quite properly) to enable shareholding directors (and employees) to receive benefits derived from the profits of a business in a form other than salary or dividend. That may or may not apply here, but it seems that it is the ultimate owner of at least some of the assets and profits (and thus declared dividends) of some of the XY companies and that the father would be likely to be one of the persons who could receive funds from it. So, on the material before me, I consider that the practical and fiscal purpose of that ultimate controlling party, its access to dividends paid by other XY companies, the moneys received by the father from it and his ability to access money from or through it, merit examination in the assessment of his financial resources.

[82]Going through published accounts and material before me, I note that: i) a more optimistic future is predicted than that presented in the father’s brief statement (see for example the statement for the year ended 31 July 2009 of the chairman of XY European Financials Investment plc), ii) the accounts for XY Investments Ltd (one of the companies through which the father says he conducts his investment business and of which he is a significant shareholder) show(a) profits of £5.65 million for the year to 30 June 2008 and of £5.98 million for the year to 30 June 2009,

(b) shareholders funds of £8.29 million in 2008 and £2.75 million in 2009 (after a revaluation reserve of £3.23 million) and

(c) assets / investments of £11.5 million in 2008 and of £5.76 million in 2009 (after deducting £5.86 million in respect of a revaluation). The notes to those accounts record an agreement on 31 March 2009 for the sale of the company’s shares in three XY companies which is contingent on Bank approval. It may be that this is the agreement that gives rise to the debt referred to by the father that he says in his statement (without giving any reason) might or might not be recoverable. The uncertainty as to that debt (whatever its source) calls for explanation, iii) it is clear that a number of the XY companies hold assets that are easily convertible into cash and have distributable profits available to enable significant dividends to be paid notwithstanding the recent financial downturn. Whether it would be commercially sensible, or fair in the context of these proceedings, to sell company assets to fund dividend payments and/or loans or other payments to the father is a different matter but the likely quantum of the claim seems to be far less than the net value after extraction of saleable assets in XY Investments Ltd (and other XY companies), iv) over the past two years significant dividends have been paid by XY companies: a) a dividend from one of them (XY European Financials Investment plc) of £740, is referred to in the father’s Form E. An extract from the annual report and accounts of that company for the year ended 28 February 2009, included in the bundle before me, asserts that a dividend of 3.22p per share has been proposed and that the father, as I understand it through his shareholding in XY Investments Ltd and XY Investment Management Ltd has an interest in 4,025,218 shares. The source of this personal dividend of £740 is not clear to me from what I have read, but it seems that companies in which the father is a shareholder received a substantial dividend, and might be in line to receive further significant dividends, from this source, b) I was told by counsel for the mother that the accounts of XY Holdings Ltd indicate that a gross dividend of £351,631 in 2009. No copy of the accounts was before me, but as mentioned earlier a note to the accounts of XY Investment Management Ltd state that it is owned by its parent company, XY Holdings Ltd, the ultimate controlling party of which is XY Malta Employee Trust. So it seems that, contrary to what I was told, this dividend was not paid directly to the father, but may be a dividend from which he may be able to benefit through the Employee Trust, or otherwise, c) accounts before me of the following XY companies show gross dividends : Company Dividend 08 Dividend 09 Investment Advisers Ltd £600,000 £150,000 Investment Management Ltd £281,640 Investments Ltd none none The father owns all the issued ordinary share capital of XY Investment Advisers Ltd, but the dividend may be in respect to the preference shares (it is described as preference dividends) and the preference shares are owned by XY Investments Ltd (which the notes to the accounts of XY European Financials Investment plc assert the father owns).

[83]This brief visit to the limited material available indicates that some of the points made during the hearing as to the father having a dividend income may be bad ones but that nonetheless there are a number of issues that merit further explanation in connection with the father’s presentation of his financial position as effectively being one of(a) him owning assets (shares in XY companies) that are not realisable and which produce no income apart from salary,

(b) of him having no savings (and thus by inference no direct or indirect rights in the product of the successful years of the XY companies, of which he seems to be the controlling mind or in which he plays a significant role, and

[84]Of course, I am not in a position to make any findings on the extent of the father’s assets and access to assets and funds and thus his financial resources on the evidence and argument before me.

[85]But I am not, at this stage, bound to accept his assertions at face value and I am satisfied that the mother’s position that he should give further information and disclosure and that this will disclose that he has the ability to fund an award in the amounts she seeks and costs (of both sides) cannot be categorised as “fishing” or “Micawberism” (see G v G

[2003] 2 FLR 71

in particular at paragraph 79). Indeed the factors I have referred to above indicate that further disclosure and explanation is required and in its absence his general assertion as to his income and capital position, and thus his overall financial resources, is unconvincing. This is necessarily a preliminary view on limited information and in reaching it I have focused on the published material about the XY companies and have left out of account other matters going to his general credit advanced on behalf of the mother.

[86]I have very little information about the rival contentions in the s. 8 proceedings. As I understand it, within them the father relies on an agreement with the mother that when the child had completed her primary education she would move to Edinburgh and continue her education under his care and supervision spending her holidays with her mother. Initially his position was that the child would need to board, but this has now changed. The schooling issue is therefore closely linked to the issues on residence and contact because the father contends for a school in Edinburgh and the mother for one in England. Further, and although as I understand it the father accepts that he will pay her fees wherever she goes to school, this schooling issue has a tangible link to the Schedule 1 proceedings because it has an impact on where the child will have her home or homes and what, if any, provision should be made by the father for or towards a home for the mother and child and the upkeep of the child.

[87]Even assuming that the father establishes the agreement he asserts his case involves the child moving away from her mother, with whom she has had her home all her life. It will therefore involve this emotional pressure for the mother whatever its other merits. This point is also an obvious hurdle, that the father will have to overcome if he is to show that the child’s best interests will be served by her moving to live in Edinburgh for the terms (and part of the holidays because of the desirability of her having some holiday time at the home of her father and where she can see her school friends) in circumstances in which it seems that the father will continue to work full time and for hours and in places that do not fit easily with the timetable of the child. It may therefore be that he will have to employ a carer. On the face of it, it would seem that the mother has strong points to advance in favour of the view that the welfare of the child would be best promoted by her living with her mother and going to school in England.

[88]But, as with other issues in this case, I do not know the detail of the parties’ respective proposals and cases and can only express a preliminary view based on limited information.

[89]A CAFCASS report has been ordered in the s. 8 proceedings. The parties and the court will therefore have the advantage of that but, in my view, first because it cannot at this stage be known what it will say and recommends and, in any event, it is not its function, it cannot be said that such a report means that representation of the mother is unnecessary or undesirable. The child has not been joined as a party and it is now too late to take that course (even if it was appropriate).

[90]I also have very little information about the rival arguments in the Schedule 1 proceedings and so far as I am aware neither open nor without prejudice offers have been made. To my mind this is a pity and seems to reflect the antagonism and adversarial approach taken in the statements. It also means that I am not in a position to assess whether the mother is asking for costs to enable her to pursue a claim for the benefit of the child in the face of a sensible offer.

[91]On the limited information I have it seems that the mother has reasonably good prospects of obtaining an order that provides for or contributes to(a) the provision of appropriate accommodation for her and the child (as to which the position of her other adult children will be relevant), and

(b) day to day living expenses, in addition to the agreed payment of school fees. So, on that limited information (a) she cannot be said to be pursuing an exaggerated claim, and (b) there is a realistic prospect that if she acts inappropriately or overstates the case that costs could be recouped from a sum to be provided for accommodation and/or living expenses.

[92]All cases are different, or have different aspects, but in my view it is clear that it is more likely than not that it would benefit the child if the mother was represented in both the s. 8 proceedings and the Schedule 1 proceedings. This accords with the conclusion I reached in M-T v T and the conclusion reached by Moylan J in G v G. In large measure, this view is based on the generally recognised advantages flowing from competent representation, and there being an “equality of arms” in an investigatory as well as in an adversarial process.

[93]In both sets of proceedings, the mother will be under significant emotional pressure and this adds to the likelihood that the child would benefit from the mother being represented both in respect of the preparation of the cases and in argument. In the Schedule 1 proceedings there is the additional point that the instructions to the accountant who has been instructed to report therein (initially at the cost of the father) need to be prepared so that he is directed to issues identified by lawyers or persons familiar with the issue in the Schedule 1 proceedings. I add that the generally framed instructions, as often seen in claims for financial provision, would not in my view be appropriate. Also his report will need to be considered by someone with appropriate expertise to seek to ensure, for the benefit of the child, that a full and accurate picture of the father’s financial position is before the court.

[94]Having regard to the factors set out above I have concluded that it would be for the benefit of the child for provision to be made by way of a lump sum order towards: i) the costs of the hearing of the s. 8 proceedings set down for three days starting on 4 August, and ii) the costs of preparing for, and of, the FDR (set for the end of July), plus a further amount to cover the initial steps thereafter if settlement is not reached which may well include an application for another lump sum in respect of costs (on the jurisdictional basis set out earlier). A review after the FDR is an approach approved in Currey v Currey (No 2).

[95]At this stage, in my judgment the balance of fairness requires that having particular regard to: i) the gaps and uncertainties I have mentioned earlier concerning: a) the past funding of the mother’s costs, b) the father’s financial position, c) the issues and arguments in both sets of proceedings, and d) offers (and the claims) made in the Schedule 1 proceedings, and ii) the risk of an award in respect of costs being unfairly burdensome on the father particularly if it cannot be recouped, I have concluded that my award should exclude past costs and should be for, and only for, the future costs referred to in the last paragraph.

[96]As I have mentioned I do not have an assessment of those costs and I do not know what work remains to be done in respect of the preparation of the s. 8 proceedings and the FDR. From the schedules of costs that I have been provided with I estimate the costs for the above purposes at £20,000 inclusive of VAT.

[97]I will make a lump sum order for that amount for the above purposes, and subject to submissions on the point, it seems to me that the best way of achieving this result would be for the sum to be paid to the mother’s solicitors and for them to undertake to use it only in discharge of those costs.

[98]I will deal with the costs of this appeal, and the application to the District Judge, when this judgment is delivered.

Tailpiece / miscellaneous

[99]As appears above, in my view a number of relevant issues have not been covered in the evidence. I have therefore considered whether I should adjourn the exercise of the discretion I have found I have so that the gaps I have identified can be filled. If the issue relating to schooling did not have to be decided urgently, and it was not as closely connected to the Schedule 1 proceedings as it is, it is likely that I would have delayed the exercise of the discretion or remitted it to a District Judge. But, if I was to do that, the benefits to child of the mother being represented at the two hearings set for the end of July and early August would be lost and the schooling issue would nonetheless have to be decided so that the school for September is identified.

[100]Generally it seems to me that parties preparing for a hearing for a costs allowance should cover the issues referred to in paragraph 96 above and carefully consider and cover other factors relevant in their case to the exercise of the court’s discretion.