Case No. LS20P01640

’). 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.”21.I have specifically considered whether the formula adopted by the Child Maintenance Service (CMS) is relevant to a case such as this. It is important to note that in Collardeau-Fuchs Mostyn J was expressly distinguishing Schedule 1 applications (and other similar claims, where the parent has no personal spousal claim), from claims for post-divorce financial relief for a child under the Matrimonial Causes Act 1973. Under the former, as in this case, the periodical payments claim for the child would be the “centrepiece”, and the budget would be the “principal litigation battleground” of the process; under the latter, the claim for the child would often be “distinctly subsidiary” (see Collardeau-Fuchs at [120]). In arriving at the fair figure for periodical payments in a Schedule 1 claim, where the father’s gross income exceeds the statutory maximum for the CMS calculation (as here), I think the result given by the formula is unlikely to be relevant; I can make clear now that I regard it as irrelevant on the facts of this case. Indeed, I do not read Mostyn J’s comments in CB v KB [2019] EWFC 78 as doing any more than offering guidance in a marital child maintenance claim that a helpful starting point in fixing the level of periodical payments could, subject to an overall discretionary review, be the result of the CMS formula. 22.The useful distillation of the law set out in Collardeau-Fuchs (set out in §20 above) draws from a number of earlier authorities, including Re P and more widely, the following:i)J v C (Child: Financial Provision) [1999] 1 FLR 152 (Hale J): with reference to standard of living; it was observed at p.160 that “the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living”; ii)GN v MA [2015] EWHC 3939 (Fam) (Bodey J) where he considered the much-debated question of payments for the direct benefit of the mother not the child, at [14]:“ there will inevitably be numerous grey areas where the need being asserted [by the applicant] is of no direct benefit to the child but is (or is arguably) of legitimate indirect benefit in helping reasonably to sustain the mother's physical/emotional welfare. This will be most pronounced when the father is very wealthy and able without difficulty to provide for living costs of no clearly identifiable direct benefit to the child, but which would indirectly promote the mother's care of the child by allowing her such a lifestyle as not to feel 'out of place' in the society of the parents of the child's friends.”“… it should not be thought by her that the solution is simply to spend above her means, running up debts so as to be able to come back to the court for lump sums for C, or for increased maintenance with which to service the debts. The budget below is what the court has calculated to be reasonable when balancing the various competing arguments which arise in cases like this. It is the mother's duty to C so to adjust her lifestyle as to bring him up within the budget and not to create for herself the stress of continuing debt from now on.”iii)In re A (A Child) (Financial Provision: Wealthy Parent) [2015] Fam 277 brought together the two threads (standard of living, and payments for the benefit of the mother) identified above. Macur LJ said this:“[19] The literal or purposive interpretation of Schedule 1 does not permit of the concept of sharing or compensation for the benefit of the child, nor, by the back door, financial provision and compensation for the carer beyond that element attributable to the care of the child during his minority, or other determined duration of dependency. There is no established authority to the contrary.”“[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.”Background history23.The background history is reasonably fully set out at §3-§13 of the first judgment ([2020] EWFC 80). I updated the history at §6-10 of the second judgment ([2021] EWFC 72).24.I do no more here than provide a short resumé of the history, and a summary of the current position. 25.The mother is now 31 years of age. She is a university graduate who has worked in the fashion and interior design world in the past; she does not currently work. The father is 51 years of age. He continues to live predominately in ‘State A2’ on the west coast of the USA in a luxurious home (sufficiently sumptuous to feature on the front cover of a well-known interiors and lifestyle magazine) which stands in 4 acres of manicured beachside garden. The father is an investment manager and is immensely wealthy. He manages his business, or businesses, from his homes in State A and State B.26.The mother and father had a relatively brief relationship in 2020. For a time, the mother moved in to live with the father in his home in the USA. There was talk of marriage; in February 2020 the father asked the mother’s father for the mother’s hand in marriage. The mother fell pregnant at about that time. The parents separated during the pregnancy, and the mother returned to England three months before Zoe was born.27.Since my earlier judgments, the mother and Zoe have continued to live in London in rented accommodation; the mother is and always has been assisted in her care of Zoe by a nanny. Since January 2023 Zoe has attended a private nursery for up to three hours each term-time morning; she has a calendar which is replete, it seems, with multiple other social and physical activities, and activities/therapies connected with her disability (see next section). 28.The father has not yet met Zoe. In his written evidence filed at an early stage of the proceedings, he said that he was “heartbroken” not to be able to see her, referencing the impediments caused by national lockdowns and the challenges of international travel during the CV-19 pandemic. Those explanations do not currently have much relevance. In his final evidence filed in the case he said this: “I would love to have a meaningful relationship with her, and I have no doubt that it is in her interests to have a meaningful relationship with me.”He blames the mother for obstructing their relationship but declares that he is not able to travel to London now given his work commitments. I should add that I do not recall seeing, within the extensive evidence filed, any reference to the father having ever sent Zoe a gift or card on her birthday, or possibly at all. 29.It is the mother’s case that she wishes Zoe to have a relationship with the father; she has offered the father time with Zoe in this country. She said that she hoped that the father would combine personal attendance at this final hearing with time spent with Zoe, and made specific written proposals in this regard. She told me that she has regularly sent photos, videos and welfare reports of Zoe to the father via WhatsApp, but he does not “engage” with this (the mother refers to his “radio silence in response to daily WhatsApp and email updates surrounding Zoe’s activities, health and schooling,”). The mother told me in her oral evidence that she would like to take Zoe to see her father in the USA perhaps later in 2023, for Thanksgiving. I note that the father issued her with a pressing all-expenses paid invitation to join him and his family for Thanksgiving and a three-week break in 2022, but she did not go. She told me, and I believed her, that she would like Zoe to spend time with the father.30.The parental relationship is, and has been for some time, highly conflictual. In his judgment on welfare issues, the President of the Family Division made these observations about them (§15):“I do not think it can be argued that it is profoundly contrary to her best interests for her parents to be so at odds with each other about, as it seems to me, everything and out of communication with each other, other than to exchange short messages, which are the opposite of being friendly. I make that observation I hope in a way that is one which is entirely sympathetic and empathetic to each of these two parents. They were not getting on at the time of Zoe's birth. They have then had to take on board and cope with the enormity of the diagnosis. There will be anger. There will be frustration. There will be feelings of guilt. There will be bewilderment. There will be exhaustion. All of these things will be features of their experience day-to-day at present. There will be feelings of grief. This is not the healthy baby that they would have hoped each of them to be a parent of. These are powerful emotions and, at the moment, they are playing themselves out in a wholly negative way, which can only be profoundly against the best interests of their baby. I am not being critical. I am simply stating what I see. They know what I am talking about.This dysfunctionality, this conflict in their relationship, needs addressing for the benefit of their baby. They have got years ahead of them of needing to be in touch. She needs them working together to support her as she gets on with the very difficult life of a child growing up with this condition.”On very little do the mother and father see eye-to-eye; in relation to Zoe’s health and condition (see below), the father accuses the mother of over-reacting and catastrophising, while she accuses him of indifference and a lack of real understanding. He accuses her of extravagance and unrealistic ambition in the prosecution of her claim for financial support for Zoe; she accuses him of parsimony. And so, sadly, it goes on.Zoe’s health and development31.Zoe is described passionately and effusively by her mother as “a blessing to everyone that is lucky enough to meet her”, “simply amazing… the light of my life and my family’s life…”; she is a child who is described as illuminating any room. The photographs of Zoe which have been included in the bundle of documents for this hearing delightfully give some small indication of all of that.32.Zoe suffers from a rare, sporadic, neurodevelopmental genetic disorder known as Williams Syndrome; it was diagnosed when Zoe was about 5 months old. I have learned a great deal about the condition from a useful publication issued by the Williams Syndrome Foundation (2021) entitled “Williams Syndrome: Guidelines for Educators” (Tynan, Kye, Van Herwegen). Specifically, I have been provided with specific reports on how the condition affects Zoe directly (see §35-37 below).33.Williams Syndrome is caused by missing genetic material on chromosome number seven; one of the missing genes in this area is the one which produces the protein elastin, which is responsible for providing the elasticity in body parts such as the muscles, blood vessels, skin, brain, and other internal organs. Children who suffer from Williams Syndrome may have a range of medical issues which can impact on their development and wellbeing: renal and cardiac problems, raised blood pressure, high calcium levels, joint and muscle problems (including hernias) and/or dental abnormalities. Features may include a distinctive facial appearance. Most children have mild to moderate learning difficulties with general IQ scores between 40-60 (Martens et al., 2008), although there is significant variation in the results of IQ subtests. People with Williams Syndrome are said to have sociable personalities, characteristic behavioural traits and variable degrees of learning disability.34.The Williams Syndrome publication (referred to in §32 above) contains the following notable extracts which are relevant to the issues before me:i)“All children with Williams Syndrome require some daily 1:1 learning in a quiet area or separate room. Younger children with Williams Syndrome in primary mainstream school require full-time 1:1 support including during play and mealtimes due to health and safety risks (wandering off, tripping over, unaware of dangers, choking, unable to open packaging and unable to cope with toilet needs independently). However, the child should always work under the instruction of the teacher.”ii)“Individuals with Williams Syndrome have low muscle tone due to the deletion of the gene ELN. As such, they benefit from physiotherapy to help with muscle strength, balance and coordination”;iii)“As children with Williams Syndrome have complex needs (educational needs as well as social and health ones) input from an educational psychologist is required, especially to get an Education Health and Care Plan (ECHP) in place”;iv)“Speak to an OT for the best intervention or approach that can help the child’s participation in school and classroom activities relating to gross/fine motor skills and sensory needs”;v)“Many children with Williams Syndrome show high levels of anxiety and often there is an increase in anxiety and decrease in wellbeing from puberty onwards. Although most young children with Williams Syndrome are happy, high levels of anxiety over time can lead to depression. There is some evidence that cognitive behavioural therapy can benefit young adults with Williams Syndrome. As such, input from a clinical psychologist/CAMHS or mental wellbeing team might be required.”35.As a result of this condition, Zoe has a complex congenital heart defect - pulmonary atresia, coarctation of the aorta, distal arch hypoplasia, and atrial septal defect secundum (this is the most common type). Additionally, Zoe displays global developmental delay with speech, language and communication difficulties; she experiences some sleep difficulties, and engages in self-stimulating sensory behaviours. Zoe has had feeding difficulties all of her life; she will not readily feed from her mother and in order to eat appropriately and sufficiently, Zoe is fed by the family nanny. The medical evidence suggests that behavioural feeding problems often are very slow to resolve and will require daily input and support. The mother told me that were it not for the patience and persistence of the nanny, Zoe would be “on a feeding tube”.36.Zoe underwent significant cardiac surgery on 9th of November 2021 at Great Ormond Street Hospital. Follow-up reports indicate that this was successful.37.Various medical reports have been prepared on Zoe by her treating clinicians and these have been filed with the court. Most notable is the collection of letters/reports from her treating Consultant in Paediatric Neurodisability, Dr R. From these letters/reports I have collected the following information: i)Zoe displays “delay in all areas of her development”;ii)Zoe’s diagnosis means that she will have long-term significant needs and will require additional support throughout her education;iii)Zoe’s developmental delay manifests itself in her communications: she communicates with a variety of gestures, vocalisations, and the occasional word. She appears to be understanding at a single word level and this is why she is struggling to follow more complex instructions; her speech development is significantly below what would be expected for her chronological age,iv)Zoe requires ongoing speech and language therapy support with her communication skills;v)Zoe is unstable on her feet, often falling over; she needs adult support in busier environments. She shows delay in her gross motor skills (in sitting, standing & walking), as well as with significant difficulties with balance (dynamic & static balance) and postural stability (gravitational and postural insecurity); Zoe has reduced muscular strength and physical endurance during activities, as she easily gets fatigued for her age.vi)Zoe is “highly sensitive” to noise and crowds (mother’s oral evidence) and shows acute sensory awareness towards certain sounds; in assessment she became visibly distressed, for example when her mother coughed. Her mother reports that Zoe is frequently upset when the vacuum cleaner or hoover is operating;vii)Zoe is often unwell with colds and the like, “more often than her friends”. The mother reported that Zoe is susceptible to infection and “always has a bit of a cough”;viii)Zoe reportedly struggles with transitions and change of events, particularly when others leave;ix)Feeding remains a significant area of difficulty for Zoe, she is still exceptionally fussy regarding textures of food as well as who can feed her. Zoe requires supervision during mealtimes to ensure she does not choke / aspirate. Zoe’s current developmental feeding age can be described to be around 4-6 months of age.38.Zoe currently receives, and I am satisfied benefits from, a range of therapies:i)She requires 1:1 physiotherapy once per week; she will require lifelong monitoring and treatment from physiotherapists due to the known musculoskeletal disorders associated with Williams Syndrome namely spine kyphoscoliosis, joint laxity in childhood followed by joint stiffness with age, tightness in ankles and toe walking, and ataxic gait;ii)She receives speech & language therapy, primarily to assist her with her problems with eating;iii)She receives occupational therapy to support her independence in her daily occupations such as self-care skills, engagement in education tasks and play skills. In addition to this, OT offers education and strategies for Zoe’s carers in order to continue to support her in her home environment as she grows and her needs continue to develop. Zoe had a tongue tie snipped when she was a few weeks old to facilitate breast feeding; it has been recommended that Zoe should have a further operation to release her tongue tie. It is expected that this will be available to her on the NHS.The mother’s case39.The mother looks to the father for significant financial support for Zoe. She does not work, currently, and has modest means of her own. In her reply to questionnaire in October 2021 (and confirmed in oral evidence to me) the mother accepted that she has an earning capacity; however, as the implications of Zoe’s health have become more and more apparent over the last two years, she has modified her views: “[The mother] also acknowledges that that situation will not last forever, and that it would be necessary for her then to do all she can to support herself once Zoe starts regular and structured schooling, so long as that work accommodates her primary commitment to Zoe. As to what her earning capacity might then amount to, it would be necessary to be realistic bearing in mind the length of time she has been out of the workplace (as to which see below), the fairly limited time she was in it, the marketable skills she has and the need for her to be available for Zoe during school holiday periods and when unable to attend school for whatever reason. … [The mother] has not been in paid employment since 2017, when she did some PA work for [XXX] (a high-end interior designer) for a few months.”40.The mother seeks several forms of financial relief from the father for their daughter (see §11 above). The value she attaches to that claim has been consistently pitched high; at the outset of the proceedings (2020), I found her interim budget to be “overvalued and in some respects unrealistic”. She continues to present her case unapologetically high and in so doing she heavily relies upon the extreme wealth of the father and his standard of living. She points to the fact that the father’s net wealth is/was measured at somewhere around $100m3 (per his ‘Form E’ December 2020) to $130m (per his first statement in November 2020); in the Form E he asserts that his estimated net annual income would be £3.75m. She describes his “opulent” standard of living; she further refers to the fact that “[h]is friends are the rich and famous, and he is renowned for being a fabulous entertainer”. She has produced many photographs of the luxurious home where he lives in the USA; the Form E reveals that it is worth more than $35m, but I note that it is/was subject to sizeable mortgage. The mother references the father’s use of a private jet, his lavish entertaining, his staff support including “world-class” chefs and a butler reputedly earning $250,000pa. She points to the fact that his monthly ‘housekeeping’ budget for himself and his staff/guests is £78,007.52 (per the father’s Form E: December 2020); his monthly outgoings (ibid.) overall are c.£180,000. She invites me to make a comparison between this extraordinary level of expenditure and her proposed budget for the household comprising Zoe, the nanny and herself. 41.There is no doubt that when the parties were together the mother liberally used a credit card provided for her use by the father; there is now a conflict of evidence between them about the extent to which this spending was encouraged or discouraged by the father. Insofar as it may have been relevant to the issues under consideration, in the absence of the father I have not been able to resolve it; suffice it to say that for the period of their relationship the mother was the beneficiary of extravagant high-end spending consistent with the standard of living which the father appears to enjoy. In support of her claim for Zoe, the mother further points, inter alia, to a package of financial support which the parties were negotiating as a form of pre-nuptial settlement, in the event that she and (the yet unborn Zoe) had returned to and/or remained living in the USA. Under the terms of the proposed deal, the mother would have received from the father the sum of $15,000pcm (£12,5004) to enable her to rent her own property close to the father’s home, $120,000 as an annual tax-free allowance, with further expenses (including $25,000 (£20,800) for designing and furnishing the apartment, and $5,000 (£4,100) for designing and furnishing Zoe’s nursery).42.The father, incidentally, accepts the figures which I have set out in §41 above, but now says that (a) he could little afford them even when he proposed them, and (b) he would not have accepted them but for the promise that the mother would return to the USA: “The offer was not financially viable for me, but it was one that I felt I had no option but to agree to, in order for [the mother] to return to America with Zoe (who had not yet been born)”.43.The mother has made two formal open offers to the father in an attempt to resolve these proceedings; one was made in March 2022, and the more recent offer was made in December 2022. Mr Thorpe naturally focused on the later of the two. I thought it nonetheless instructive to consider the proposals side by side and this appears in tabular form as an appendix to this judgment. The key features of the mother’s case are:i)Housing: Zoe should be enabled to live in St John’s Wood in a property purchased by the father and settled on Zoe for her childhood, until she has completed tertiary education; the mother now seeks a budget of £4m (net of purchase costs and SDLT5) in this regard, a higher figure than the sum she sought 12 months ago (which she says was proposed following “a broad sweep of properties in the North West London area”). In her December statement she refers to the fact that “the approximate price bracket of living in a suitable property in the St Johns Wood area and surroundings is between £3.8m and £4.25m”. She seeks a lump sum for refurbishment and redecoration of the property (£75,000), and prospective lump sums (2 x £25,000) for future redecoration;ii)Moving fund: The mother seeks a £7,500 moving fund;iii)Nanny: The mother currently relies on a nanny, as she has done throughout Zoe’s life; she has provided a full account of the demands on her day in looking after Zoe, summarising their lives (statement: December 2022) as follows:“Caring for Zoe is a full-time job and one that I am not able to do on my own. I need the assistance of a nanny to help me look after her and to make sure her daily routine runs smoothly. Keeping Zoe in a settled routine and in a familiar and safe environment is the first big hurdle for any day. Without the assistance of a nanny, I would not be able to cope and I would be concerned about further delays to her development.”The mother claims the cost of a nanny until Zoe is 11 years old and into secondary schooling. The current costs of the nanny is £71,500pa. She emphasises the significant emotional and practical toll on her, as a single parent with no emotional or practical support from the father, in caring for Zoe given her special needs;iv)HECSA: The mother asserts a periodical payments’ claim (a HECSA) (see above §20) in the sum of £174,372pa, a 16% increase on her claim since last year; within the household budget the mother claims sums for the maintenance of her home, food and household items, clothes, domestic help, car and transport, and personal expenditure;v)