Family Court, 3 May 2017, Mostyn J
Following the parents’ separation there was almost continuous litigation between them about the child.
An order was made in May 2005 requiring the father to settle £220,000 on the child to provide him with a home and also to furnish £20,000 (later amended to £24,800) towards moving costs. This was not in fact implemented until January 2012 when the settlement finally purchased a flat chosen by the mother for the child’s use. There was no capital provision made at that time for the purchase of a car because the mother already had one.
Although the father was believed to be a rich man, he paid only £3,819.40 in child support between 29 April 2009 and 22 April 2014. Since 3 January 2017, following a minimum assessment by Child Maintenance Options, he had paid only £7 per week. He had also paid for half the child’s school fees; the maternal grandmother paid the other half.
The mother’s further claims against the father began in 2013, and included a claim for both capital payments and periodical payments. The timetable for the hearing was altered by the mother’s decision to apply under s 423 of the Insolvency Act 1986 to set aside a disposition to a new trust by the father. The Insolvency Act claim was eventually compromised, but in the meantime both parents had appealed against the CSA assessments, so the Schedule 1 hearing was adjourned until conclusion of those appeals. The tribunal eventually concluded that there were CSA arrears of over £40,000; the husband later indicated an intention to appeal the tribunal’s decision. By the hearing of the Schedule 1 application, the child was 16.
The mother was seeking i) £15,000 to replace her car; ii) £3,000 to cover the cost of a forthcoming trip to Israel by the child; iii) £1,500 as a 50% contribution towards the cost of a trip in the previous year to China by the child; iv) £500 as a 50% contribution towards the cost of a kayak purchased for the child; v) £600 for the cost of a new laptop for the child. The mother’s total capital claim was therefore £20,600. The mother worked part-time, earning £500 a month and also received working and child tax credits as well as child benefit. There was evidence that the father, now 65, owned property in his own name valued at £450,000, but also of property in trusts of which he was a beneficiary, of property owned by a company of which he was until recently the sole shareholder, of property owned in a trust set up by him relatively recently of which his children, but not he were beneficiaries, and of property owned by a pension fund established for the benefit of himself and other members of his family..
The High Court judge awarded the mother £20,600, with statutory interest to run from 1 June 2017, and also made a charging order against a property in the father’s name for this amount.
The court had no doubt that a new car could legitimately be sought under Schedule 1. The next four items were more borderline but they might equally be characterised as singular items of a capital nature. Therefore, provided that the merits justified it, a total of £20,600 could legitimately be claimed by the mother.
In circumstances where there was no maximum assessment, and where there was no prospect of one being made, there was no jurisdiction for the court to make a periodical payments order in favour of the mother for the child. That aspect of her claim was therefore dismissed.
In circumstances where neither party was asking the court to place any reliance on the decision of the tribunal it wouldbe a step too far to attribute to it the status of res judicata. However, it was noteworthy that after an exhaustive hearing the tribunal had concluded that for the purposes of the regulation the father had capital of a not inconsiderable amount. In fact, the court was satisfied that the assessment made by the tribunal by no means reflected the true extent of the resources available to the father. The court had further concluded, contrary to its initial provisional view, that it would not be reasonable to require the mother to give credit against child support arrears for the sum awarded in the Schedule 1 proceedings.
Taking into account property which was either owned directly by the father, or by a trust or trusts of which he was a beneficiary, or which was owned by a company of which he was recently the sole shareholder, or which was owned in a trust set up by him relatively recently of which his children, but not he were beneficiaries or which was owned by a pension fund established for the benefit of himself and other members of his family, the father had access to assets worth over £5 million. The court was completely satisfied that the position of the father and the trustees was one of artifice and that the trust assets would be made available to the father in whole or in part were he to seek them for whatever reason. Of course, were the properties in question to be liquidated there would be taxes and costs of sale to be paid. However, it was apparent that the father possessed, or was to be treated as possessing, very substantial assets indeed and in such circumstances his parsimonious approach to the support of his son was little short of scandalous. Further, the father had engaged in all-too-familiar manoeuvres to try to insulate his resources from the reach of the mother and the court. The father spent virtually nothing, leaving his capital to grow un-encroached. In his oral evidence he explained that he had taken from his bank account £450 in cash three months ago and had not yet even spent that. He spent almost all his time with his elderly parents who met the cost of his day-to-day items in exchange for his care of them.
The father had issued a witness summons to require the attendance at court of the mother’s own elderly mother to establish whether she had established trusts in the mother’s favour. The mother had given evidence that she was not a beneficiary of any trust to her knowledge. There was not the slightest piece of evidence to suggest that any such trust existed – this was in the court’s view a pure fishing expedition, and the court had discharged the summons. The court suspected that the father’s real purpose had been to establish the scale of the maternal grandmother’s own estate and to determine her testamentary intentions, but that was not a legitimate purpose of a subpoena – applying Morgan v Morgan  Fam 122. It would be equally irrelevant to inquire about the testamentary intentions of the father’s own parents.
Given her responsibilities to the child, it would not be reasonable for the mother to seek to work full-time, even if such work were available to her. It was manifestly reasonable for her to have a reliable car for the use of her and the child. It was not for the father to dictate to the mother which car she should have – she should be enabled to buy a car of her choosing.
The child’s savings, provided by his grandmother, of under £10,000 were to be preserved for him.
The father had sought to give oral evidence that when he attended the Santander Bank to open an account in the child’s name (to receive tax rebates which went towards the child’s school fees), he was told by the teller that several accounts already existed in the child’s name. This was hearsay and no attempt had been made to comply with the written notice provisions specified in s 2 of the Civil Evidence Act 1995 and Family Procedure Rules 23.2. The father’s evidence had not been reduced anywhere to writing and it was completely unacceptable for the mother to be ambushed with this evidence in this way. Pursuant to s 4 of the Act the court would attribute no weight to this evidence and disregarded it altogether.
The mother’s claim of £20,600 was manifestly proportionate and reasonable and properly reflected the considerations in paragraph 4 (1) of Schedule 1 to the Children Act 1989. The sum was to be paid by 1 June 2017. If it were not paid then, statutory interest under s 17 of the Judgments Act 1838 at 8% would arise. It seemed likely that the father would use every means available to him to frustrate enforcement of this award. The arrangements he had made in relation to his substantial assets showed that he was determined to seek to insulate them so far as he could from any claim by the mother either directly or through the Child Support Agency. It was therefore necessary for the court to take steps to secure the award so as to ensure that it was paid. Under s 3(1) of the Charging Orders Act 1979 the court was empowered to make an immediate absolute order; it did so over a property held in the husband’s sole name, in the sum of £20,600 together with any statutory interest. Any application for enforcement of the charge was to be reserved to this court.
Finally, the court drew attention to an extraordinary state of affairs arising from recent amendments to the child support legislation. The tribunal appeals had related to assessments made under the second regime, introduced by the Child Support, Pensions and Social Security Act 2000. Under that regime there was a facility to seek variation on the grounds that the non-resident parent had “assets”. That regime had been replaced by the third regime, introduced by the Child Maintenance and Other Payments Act 2008, in full force since 26 November 2013. This case was transferred into that regime on 10 October 2015. For reasons which the court could not fathom the “assets” ground of variation had been removed from this latest regime. Therefore, it was possible, as in this case, for a father to live on his capital, which might be very substantial indeed, and to pay no child support at all. The father was only required to pay the pitiful minimum sum of £7 a week from the early part of this year because it was then that he received his state pension. The government needed to consider urgently the reinstatement of the “assets” ground of variation.