Case No. LS20P01640

.[49] Thus in my judgement 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. In some cases it may be appropriate for the court to expect the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of receipt. Such evidence would obviously be highly relevant to the determination of any application for either upward or downward variation.”17.I have had further regard to the supporting judgment of Bodey J in Re P at [76] and [77] and draw particular attention to the following passage:“[77] 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.”18.It will be noted that ‘Standard of Living’ is not within the list of factors to which I am statutorily enjoined to have regard, and in this respect, a claim under Schedule 1 CA 1989 is unlike a claim under the Matrimonial Causes Act 1973 or the Matrimonial and Family Proceedings Act 1984. In this context, Mr Thorpe referred me to the decision of Moor J in Hussein v Maktoum [2021] EWFC 94 esp. at [91] :“… the children should be able to have a lifestyle that is not entirely out of kilter with that enjoyed by them in Dubai and that enjoyed by [the father] and his family. I accept, of course, that it will be quite impossible to replicate, pound for pound, the standard of living they enjoyed before their parents separated but I am going to be generous and accept many of the figures put forward by [the mother].”In the subsequent judgment of Collardeau-Fuchs v Fuchs [2022] EWFC 135 (“Collardeau-Fuchs”), Mostyn J lauded Moor J’s “rubric” as “an impeccable summary of the relevant principles and is one which I intend to adopt in this case”. I do so too (see §50, 61, 64, & 73 below).19.In the preparation of my judgment, although not specifically referred to by Mr Thorpe, I have considered a number of additional authorities, which I reference (where the principles which they describe are relevant) in the judgment below. 20.Of most immediate relevance, particularly given its recency, is the judgment of Mostyn J of Collardeau-Fuchs (citation at §18 above). Although this was a high net worth financial remedy case following divorce (the couple lived “a billionaire lifestyle” [14]), in which the wife made a very substantial claim of £1.13m pa (excluding school fees) for the children (the terms of a prenuptial agreement prevented her from making a personal claim), there is an important passage which has relevance to issues of budget in a Schedule 1 case, and to other similar claims, where the parent has no personal spousal claim. Mostyn J at [129] said this:“Drawing the threads together, the cases establish the following propositions:a. 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.”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.”