Case No. ZZ20D65691

Parents are responsible for their children throughout their dependency. The fact that such riches as they have came after the breakup of the relationship cannot affect that.” (emphasis added)Thus, the criterion of “some sort of relationship” with the father’s standard of living came into existence. 125.In Re P, a case involving a very rich father, this approach was approved and confirmed although Thorpe LJ expressed the objective slightly differently. First, he emphasised in [44] the importance of the child’s welfare:“I would only wish to amplify by saying that welfare must be not just ‘one of the relevant circumstances’ but, in the generality of cases, a constant influence on the discretionary outcome. I say that because the purpose of the statutory exercise is to ensure for the child of parents who have never married and who have become alienated and combative, support and also protection against adult irresponsibility and selfishness, at least insofar as money and property can achieve those ends.”126.Next, he explained how, after the housing question had been addressed, the wife’s budget should be judged. At [49] he stated:“[49] Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. The wife’s revised budget for the household is £2,355,520. Of this she has calculated that £299,400 are expenses which are strictly personal to her, and are not referable in any shape or form to the cost of providing for the children in her household.”Thus, the alternative criterion of “she should not be burdened with unnecessary financial anxiety” was born.127.At [76] - [77] Bodey J summarised the legal principles applying to a Schedule 1 claim as follows (omitting citations):“[76] In the light of para 4 of Sch 1 to the Children Act 1989 and the authorities to which we have been referred, the following summary can be offered as to the considerations applicable to claims under Sch 1: (i) (ii) Considerations as to the length and nature of the parents’ relationship and whether or not the child was planned are generally of little if any relevance, since the child’s needs and dependency are the same regardless. (iii) (iv) (v) (vi) In cases where the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child’s minority with reversion to the father; a capital allowance for setting up the home and for a car; and income provision (with the expense of the child’s education being taken care of, generally, by the father direct with the school).(vii) Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child. (viii) The overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account all the circumstances.[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) When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should not generally attach weight to the risk that the father may reduce or withdraw his support when the child comes of age (or ceases education or training) thereby obliging the child to adapt to a lower lifestyle at that time.”128.In Re A, Macur LJ stated at [21] – [22]:“21. The extent of the non-residential parent’s wealth may still inform reasonableness of budgetary claims as well as ability to pay; that is, for example, the child of a wealthy man may well expect to be dressed in designer rather than high street store clothes. However, that is not to say that the court may dispense with any budget and sanction an award supportive of a lavish lifestyle devoid of context to the relevant child’s circumstances as is argued on behalf of this appellant. The court is responsible for ensuring appropriate financial support for the child and must confine the aspect of the carer’s allowance within the award to its legitimate purpose. The most casual analysis of a proposed budgetary allowance for a five-year-old child which includes membership of Annabel’s nightclub reveals the exaggeration of the claim to compensate or benefit the previous partner in their own right and not as carer for the child. 22. Courts dealing with Schedule 1 applications routinely follow the decision in In re P (Child: Financial Provision) [2003] 2 FLR 865. The nature of the child’s home environment provides the obvious baseline from which to consider commensurate levels of maintenance and is as good as any other.” Here the criterion is: “the nature of the child’s home environment provides the obvious baseline.” The reference to the “child’s home environment” is to the home that the child enjoyed with both parents before the breakdown of their relationship.129.Drawing the threads together, the cases establish the following propositions.2a.When determining a child maintenance application, the welfare of the child must be a constant influence.b.A child maintenance award can extend beyond the direct expenses of the children. It can additionally meet the expenses of the mother’s household, to the extent that the mother cannot cover, or contribute to, those expenses from her own means. Such an award might be referred to as a Household Expenditure Child Support Award (‘a HECSA’). The essential principle is that it is permissible to support the child by supporting the mother.c.But a HECSA cannot meet those expenses of the mother which are directly personal to her and have no reference to her role as carer of the child. An example is a subscription to a nightclub. However, the award can meet the expenses of the mother which are personal to her provided that they are connected to her role as a carer. Examples are the provision of a car or designer clothing. d.The reasonable level of the mother’s household expenses should be judged by reference not only to the present standard of living of the respondent but also, if applicable, to the standard of living enjoyed by the family prior to the breakdown of the relationship. The object of a HECSA is not to replicate either such standard, but to ensure that the child’s circumstances “bears some sort of relationship” to them. The standard of living in the parties’ home prior to the breakdown of the relationship is “as good a baseline” as any other. (As will be seen, Moor J in the later Maktoum case, expressed the test as being that the children should be entitled to a lifestyle that is “not entirely out of kilter” with that enjoyed by them before the breakdown of the marriage, and that currently enjoyed by the father and his family).e.The HECSA must be set at such a level that the mother is not burdened by unnecessary financial anxiety.f.When assessing the mother’s budget, the court should paint with a broad brush and not get bogged down in detailed analyses. Rather, the court should achieve a fair and realistic outcome by the application of broad common-sense to the overall circumstances of the particular case.130.Historically, an award over and above the direct expenses of the child was rationalised as being a “carer’s allowance,” with the unfortunate consequence that in some cases evidence of the commercial costs of nannies was adduced. Thus is A v A (A Minor) (Financial Provision) [1994] 1 FLR 657, in explaining his quantification of an allowance for the mother’s care, Ward J said (at 665):“I bear in mind a broad range of imprecise information from the extortionate demands (but excellent service) of Norland nannies, to au pair girls and mother’s helps, from calculations in personal injury and fatal accident claims and from the notice-boards in the employment agencies I pass daily. I allow £8,000 under this head. It is almost certainly much less than the father would have to pay were he to be employing staff, but to allow more would be – or would be seen to be – paying maintenance to the former mistress who has no claim in her own right to be maintained.”131.That approach was disapproved in Re P at [43] and [77(ii)], and rightly so, as a HECSA does not seek to put a value on, or attribute a cost to, the claimant’s primary care of the child. That exercise is not only irrelevant - a complete red-herring - but seems to me to have unpleasant transactional overtones. I agree with the judgment of HHJ Horowitz QC in Re V [2012] EWHC B36 (Fam) at [106] where he suggested that the concept of a carer's allowance “is past its utility”. I would go further and consign it to the history books.132.Recently, in Hussein v Maktoum [2021] EWFC 94, Moor J applied the governing principles in that notorious huge-money case. Mr Chamberlayne KC argues that this decision is a unique outlier of such extraordinarily singular features that nothing in it is of any relevance to the case before me. I disagree. Obviously, there were singular features in that case in that the husband was the ruler of Dubai, and the wife was the sister of the King of Jordan. However, when it came to assessing the wife’s claim Moor J faithfully and clearly applied the relevant principles.133.In that case the wife had commenced Schedule 1 proceedings in respect of the two children. She later obtained leave under Part III of the 1984 Act to claim in her own right as well as for the two children. In [45] Moor J observed that the claim under Schedule 1 for the children had been overtaken by the wider claims made under the 1984 Act, which included claims for those children. For personal reasons that wife did not make any claim for herself under the 1984 Act other than for (i) the cost of security, (ii) to compensate her for chattels she has lost as a result of the ending of the marriage, and (iii) for certain other incidental expenses she had incurred. 134.These limited personal claims were resolved by Moor J awarding her a lump sum of £41.5 million principally as compensation for jewellery and horses of which she had lost possession, as well as to enable her to pay an inheritance tax charge on her home. In addition, he awarded a lump sum of £210 million to cover the cost of the security for the wife and the children for their lifetimes.135.That wife’s budget was in the sum of £17.5 million per annum. It covered the entirety of her household expenses. She sought that the entirety of that budget should be covered by an award of child periodical payments under Part III of the 1984 Act. Moor J did not require the wife to put any part of her £41.5 million compensation lump sum towards her household budget.136.While her budget of £17.5 million was objectively massive, allowing a lifestyle of the utmost luxury, it was nonetheless several levels below the standard of living enjoyed by that family before the breakdown of the marriage. In his judgment, Moor J stated:“60.I will have to do my best to come to a conclusion as to what is reasonable whilst remembering that the exceptional wealth and remarkable standard of living enjoyed by these children during the marriage takes this case entirely out of the ordinary. …71.Despite HH not attending before me to give evidence and be cross-examined, I am of the view that I should consider HRH’s budget carefully and make any adjustments that are appropriate. If I did not do so, I would, in effect, be giving HRH carte blanche to include any item however inappropriate or unreasonable, in her figures. Equally, however, I am absolutely clear that I must do so with a very clear eye to the exceptional circumstances of this case, such as the truly opulent and unprecedented standard of living enjoyed by these parties in Dubai and the fact that I have not heard HH cross-examined on the many pertinent matters that Mr Cusworth would wish to put to him, including, in particular, his expenditure and lifestyle. …91.In reaching my conclusions, I have very much had in mind the figures that were spent during the marriage in Dubai, as exemplified by the 2019 budget, signed by HH. I have not heard from HH. I am unable to compare his expenditure with that sought by HRH.