Case No. ZZ20D65691

112.I shall first examine the applicable legislation and the case-law.113.An unsecured child maintenance award may be made under the following statutes:a.for any child, whether marital or non-marital, under paragraph 1(2)(a) of Schedule 1 to the Children Act 1989;b.for a marital child, under s. 23(1)(d) of the Matrimonial Causes Act 1973 (where the child’s parents were divorced in England and Wales) or under s.17(1)(a)(i) of the Matrimonial and Family Proceedings Act 1984 (where the parents were divorced overseas).I do not need to consider the power to award unsecured child maintenance under the Domestic Proceedings and Magistrates’ Court Act 1978.114.The award in each case is discretionary. The criteria governing the exercise of the discretion is similar, but not identical, under the statutes.115.Under Schedule 1, para 4(1):“The court shall have regard to all the circumstances including:(a)the income, earning capacity, property and other financial resources which each [parent] has or is likely to have in the foreseeable future;(b)the financial needs, obligations and responsibilities which each [parent] 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.”116.Under s. 25(3) of the 1973 Act:“the court shall in particular have regard to the following matters:(a)the financial needs of the child;(b)the income, earning capacity (if any), property and other financial resources of the child;(c)any physical or mental disability of the child;(d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;(e)the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.”Those considerations in s.25(2) are:(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;(c)the standard of living enjoyed by the family before the breakdown of the marriage;(e)any physical or mental disability of either of the parties to the marriage;117.Section 18(4) of the 1984 Act provides: “As regards the exercise of those powers in relation to a child of the family, the court shall in particular have regard to the matters mentioned in section 25(3)(a) to (e) of the 1973 Act.”Thus, the criteria under the 1973 and 1984 Acts are identical. They differ from Schedule 1 in that under the 1973 and 1984 Acts the court is specifically directed to have regard to the standard of living enjoyed by the family before the breakdown of the marriage, and to any physical or mental disability of either of the parties to the marriage. These factors are not explicitly mentioned in Schedule 1, para 4(1) although they would no doubt fall for consideration under the general rubric of “all the circumstances”.118.A further difference is that, unlike a child maintenance claim under the 1973 or 1984 Acts, the court under Schedule 1 is not expressly required to give first consideration to the welfare of the child. This is of no significance. In J v C (Child: Financial Provision) [1999] 1 FLR 152 Hale J explained at [156]:“The reason for the omission of the requirement to treat the child's welfare as the first consideration is probably that these provisions apply in cases where the adult parties are, or were, married to one another and, therefore, the court will usually be faced with claims for some provision for the adults as well as for the children. In such cases it makes sense to provide that the children's welfare should come before that of the adults in determining those claims.Nevertheless, in cases under the Children Act 1989 the welfare of the child concerned, even if neither the paramount nor the first consideration, must be one of the relevant circumstances to be taken into account when assessing whether and how to order provision.”119.In my opinion where a court is considering a claim for child maintenance under the 1973 or 1984 Acts it must have careful regard to the standard of living enjoyed by the family before the breakdown of the marriage because it has been instructed to do so by Parliament. This factor should not however be allowed to dominate the picture as there will be many children, particularly children dealt with under Schedule 1, who will not have experienced a standard of living within a functioning relationship either because the liaison between the parents was very brief, or because the child was born after the relationship had come to an end: see J v C (Child: Financial Provision) at [156]. However, in some cases, and this is one of them, the standard of living enjoyed by the whole family before the breakdown of the relationship will be of great importance.120.The other difference between a claim for unsecured child periodical payments mounted under Schedule 1 and one mounted under the 1973 or 1984 Acts is that a under the former statute the child support claim will be front and centre in the litigation. Along with the claim for a home for the child it will be the centrepiece of the litigation. In contrast, a claim for unsecured child payments mounted under the 1973 or 1984 Acts will be distinctly subsidiary to the primary claim made by the parent as a spouse. A child periodical payments claim made as part of a routine financial remedy claim by a spouse following a divorce will generally be dealt with perfunctorily. Indeed, the court will have no jurisdiction in the majority of cases to deal with child support unless there has been an agreement between the parties under the terms of the Child Support Act 1991. I suggested in CB v KB at [49] that the child support formula should apply to gross annual incomes in excess of £156,000 up to £650,000. That pragmatic, and I believe useful, guideline is obviously intended to apply forcefully to those cases where the court is considering child support as a subsidiary claim within a wider financial remedy claim. It will be a rare case where the court in a financial remedy claim between divorcing spouses will spend much time and forensic energy analysing a child maintenance budget. In contrast, in a case under Schedule 1 the child maintenance budget is the principal litigation battleground.121.However, there are some cases where for one reason or another the court hears a claim under the 1973 or 1984 Acts for child maintenance alone, and not alongside a wider spousal claim. The most obvious example is an application to vary an existing child maintenance order. Other examples would include situations where the claimant does not have a personal spousal claim to advance, because she has means of her own; or because she has remarried before she made a claim; or where for personal reasons she chooses not to make a personal claim (as in the Maktoum case, see below); or where (as here) the terms of a prenuptial agreement prevent her from making a personal claim. In such a case the child maintenance claim will be subjected to the same degree of scrutiny as a claim under Schedule 1 but with the court looking specifically at the standard of living enjoyed by the family before the breakdown of the marriage.122.I therefore agree that the case law under Schedule 1 is relevant to those claims for child maintenance made under the 1973 or 1984 Acts where there is no corresponding spousal claim being heard at the same time.123.The most significant cases under Schedule 1 are J v C (Child: Financial Provision) [1999] 1 FLR 152, FD, In re P (Child: Financial Provision) [2003] 2 FLR 865, CA, and In re A (A Child) (Financial Provision: Wealthy Parent) [2015] Fam 277. These authorities demonstrate the legitimacy of a HECSA and explain how such an award should be calibrated.124. In J v C , Hale J stated at [159]:“Paragraph 4(1)(c) requires me next to consider the financial needs of the child. Mr Karsten (on behalf of the father) accepts that the concept of reasonable requirements is just as appropriate under this heading as it is in the matrimonial context, although of course we are looking at T's requirements rather than those of anyone else. This is the nub of the case. The child obviously requires a home; full-time care; provision for her food and other day-to-day requirements, such as clothes, toys, books and transport. It has long been established that a child's need for a carer enables account to be taken of the caring parent's needs, in this case, in particular, for accommodation rather than for maintenance. The authority for that is in Haroutunian v Jennings (1980) 1 FLR 62, but it was said again in the case of A v A (already referred to).” In this case of course we are looking at capital needs and not at day-to-day income needs. Mr Karsten's principal argument (on behalf of the father) is that this child does not need a new home. She already has a home which he thinks adequate to her needs. In this respect, therefore, this case is different from other cases in which provision similar to that asked for in this case was awarded. …In support of this argument Mr Karsten urges that account should be taken of the standard of living of the couple when they were together in a relationship. Both lived modestly in public sector housing. I should also take account of the standard of living of his other children, who, again, all live in public sector housing.I accept of course that one must guard against any use of an application such as this as 'gold digging' on the part of the mother. This is a pejorative phrase which it is easy for advocates to use. The point can only be that one has to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother's benefit rather than for the child. I accept that entirely.But if a house were provided it would not become the mother's. She would have the benefit of living there for as long as she was T's carer, but it would be settled for the benefit of the child with reversion to the father who would expect to regain probably an enhanced capital asset at the end of the trust.I also agree with his Honour Judge Collins in H v P that