[2025] EWHC 1460 (Fam)

Fecha: 04-Jun-2025

Legal Framework

Legal Framework

Schedule 1 of the Children Act 1989

25.

The mother’s primary application is brought pursuant to Schedule 1 of the Children Act 1989. This empowers the court to make a range of orders for the benefit of the child and is most typically deployed to provide for housing and maintenance. In exercising its discretion under Schedule 1, the court is required to have regard to paragraph 4 of the Schedule which provides as follows:

‘In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including—

(a)

the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(b)

the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) 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.’

26.

In Y v Z [2024] EWFC 4, Peel J summarised the key principles to be drawn from the authorities in which Schedule 1 has been considered as follows:

‘i) The main orders which Schedule 1 entitles me to make are:

Settlement of property, which invariably will be on a trust, licence or lease arrangement such that the payer retains ownership thereof, and the payee is entitled to occupy with the children during their minority, or until conclusion of tertiary education; Re A [2015] 2 FLR 625 and UD v DN [2021] EWCA Civ 1947.

Lump sum or sums for the likes of furniture, car, and clearing debts.

Child maintenance (secured or unsecured).

ii)

Each such order, by the wording of the statute must be "for the benefit of the child”, or made direct to the child (which will be very rare).

iii)

The court shall have regard to the matters set out at para 4 of Schedule 1 in the exercise of its discretion.

iv)

Although para 4 does not expressly refer to the welfare of the child, in the generality of cases welfare will be a constant influence on the discretionary outcome; Re P [2003] EWCA Civ 837 at para 44.

Nor does para 4 refer expressly to standard of living, although in my judgment that is likely to be a highly material factor in many cases, particularly those which fall into the so-called "big money" category.

vi)

In Al Maktoum [[2021] EWFC 94] at para 91, Moor J suggested that "…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". In Collardeau-Fuchs v Fuchs [2022] EWFC 135 at para 119, Mostyn J observed that standard of living before breakdown of the relationship "…should not however be allowed to dominate the picture as there will be many children, particularly children dealt with under Sch 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". In my judgment the relevance of the standard of living during the relationship, and the standard of living of each party after the end of the relationship, will vary from case to case, and, as was said at para 21 of Re A (supra), will have to be seen in context.

vii)

The court will ordinarily determine the claims in sequence as to (a) property, (b) lump sum or sums, and (c) child maintenance; Re P (supra) at para 45.

viii)

The court deals with property first because, as stated at para 22 of Re A (supra), "The nature of the child's home environment provides the obvious base line from which to consider commensurate levels of maintenance and is as good as any other".

ix)

Child maintenance can be interpreted sufficiently broadly to include elements referable to the claimant in his/her capacity as the child's carer; Re P (supra) at paras 48-49. For many years this proposition, or concept, was known as the carer's allowance. More recently, at para 129 of Fuchs (supra) Mostyn J has suggested referring to it as a Household Expenditure Child Support Award [HECSA]. Whatever terminology is applied, the principle is clear, although its application is highly discretionary. It is not always easy to draw a bright line between budgetary items to which the claimant has no entitlement as being exclusively personal to him/her, and personal items which may reasonably be claimed as being necessary to discharge the carer's duties, including items which help sustain the carer's physical/emotional welfare; Re P (supra) at para 81. The court "… 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"; J v C (supra) at 159H.

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"; Re P (supra) at para 77(iii).

xi)

In general (and particularly in the bigger money cases), the court is entitled to paint with a broad brush and will not ordinarily need to descend into a line-by-line budgetary analysis; Re P (supra) at para 77(i) and Fuchs (supra) at para 129(f).

xii)

Ultimately, "the overall result… should be fair, just and reasonable taking into account all of the circumstances"; Re P (supra) at para 76(viii)’

27.

I have also considered the decision of Mostyn J in Seymour v James [2023] EWHC 844 (Fam). He held that the Child Support Agency formula ‘provides a useful and logical starting point’ in relation to applications for child maintenance where the income of the payer exceeds the statutory ceiling of £156,000 for the purposes of the Child Support Act but is less than £650,000. The formula was not, however, relevant in cases where the court was being asked to make what he had previously described in Fuchs as a ‘Household Expenditure Child Support Award or HECSA’. He proceeded to hold, however, that in certain respects the formula required some adjustment and he provided a table at the conclusion of his judgment setting out the outcome in different scenarios on the basis of the adjusted formula.

28.

In Y v Z Peel J described the table as ‘helpful but not determinative’. He observed that it is of no application in the following categories of case:

Where the child maintenance claim includes a HECSA or carer's allowance (most typically, in Schedule 1 cases);

Where there are four or more relevant children;

Where the payer's income is largely unearned;

Where the payer lives largely off capital;

Where the payer’s gross earned income exceeds £650,000 pa.

In my judgement, as I previously held in Re C (A Child) (Financial Provision: Non-disclosure) [2024] EWFC 115, the table is also of no application in cases where the payer has failed to provide full and frank disclosure of their assets, leaving the court in the invidious position of having to draw inferences as to their ability to pay.

29.

In both Al-Khatib v Masry [2002] 1 FLR 1053 and NG v SG (Appeal Non-Disclosure) [2012] 1 FLR 1211 consideration was given to the court’s ability to draw adverse inferences from a party’s material non-disclosure. In the second of these cases, Mostyn J conducted a review of the relevant authorities and summarised the position at paragraph 16 of his judgment as follows:

‘Pulling the threads together it seems to me that where the court is satisfied that the disclosure given by one party has been materially deficient then:

(i)

The court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.

(ii)

But such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the court is satisfied he has not got.

(iii)

If the court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.

(iv)

In making its judgment as to quantification the court will first look to direct evidence such as documentation and observations made by the other party.

(v)

The court will then look to the scale of business activities and at lifestyle.

(vi)

Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.

(vii)

The Al-Khatib v Masry technique of concluding that the non-discloser must have assets of at least twice what the claimant is seeking should not be used as the sole metric of quantification.

(viii)

The court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that the court should be drawn into making an order that is unfair to the claimant.’

30.

The Al-Khatib v Masry technique described by Mostyn J arose in the context of proceedings under the Matrimonial Causes Act 1973 (‘the 1973 Act’). Its equivalent in Schedule 1 proceedings would be to draw the inference that the respondent has resources of a scale whereby they can meet without difficulty the award sought by the applicant. Although Mostyn J suggested that this should not be used as the sole metric of quantification, in Moher v Moher [2020] 1 FLR 225, the Court of Appeal declined to endorse this proposition and instead made clear that the court is not required in all circumstances to attempt to quantify the assets of a non-disclosing party: the extent of that party’s non-disclosure may make reliable quantification, even on a very broad basis, impossible or the exercise may be disproportionate. The court must always be astute to ensure that the non-disclosing party does not achieve a better outcome by virtue of their non-disclosure; to do otherwise would amount to a ‘cheat’s charter’: see Moher at paragraphs 90 and 91.