Family Law Hub

C (A Child) [2013] EWCA Civ 1491

Application for permission to appeal a Schedule 1 order in which the M was the non-resident parent. The judge had refused her application for regular maintenance payments, provision for her to remain in the house she had shared with the child for 11 years and a lump sum to refurbish the property. The application for permission to appeal was refused.

  • Case No: B4/2013/0723

    Neutral Citation Number: [2013] EWCA Civ 1491





    Royal Courts of Justice


    London WC2A 2LL

    Friday, 28 June 2013

    B e f o r e:


    C (A CHILD)

    (DAR Transcript of

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    Mr Charles Hale and Mr Kevin Morgan (instructed by Dawson Cornwell) appeared on behalf of the Applicant Mother

    Miss Judith Murray (instructed by Clintons) appeared on behalf of the Respondent Father

    J U D G M E N T

    (As approved)

    Crown copyright©

    Lord Justice McFarlane:

    1. This is an application for permission to appeal brought by the mother of a teenage girl, whose initial of her first name is P. Nothing that has been said at this hearing or in the course of this judgment should lead to either of the parents or P being identified.

    2. P was born on 7 March 2000 and is therefore now aged 13 years. The application that was determined by HHJ Hayward Smith QC on 14 January 2013 and which is the subject of the application for permission to appeal was brought under schedule 1 of the Children Act 1989. It was brought by the mother for orders for financial provision under Schedule 1. It is acknowledged by counsel, Mr Charles Hale, who appears today for the mother, that the application was unusual in that the factual background by the time the matter was determined by the judge was that P no longer lived with the mother and stayed every night with her father, or no doubt by arrangement elsewhere, but not with the mother. P had been in the mother's primary care for the first 11 years of her life, but, for reasons that I do not go into, in August 2011 she parted company with her mother as a primary carer and went to live with her father, and that is where she has remained. The papers show that following that watershed change, there was a long and no doubt emotionally fraught negotiation between the parents as to what the future arrangements for P's care should be. Those were concluded and resulted in an order made by Coleridge J on 29 November 2012, and the express basis of the order was that neither party sought a "residence order" in relation to P, and the arrangements for P were recorded effectively in a parenting agreement, which took the form of a court order, which provided for matters of detail and importance in relation to P's life. But the basis of the parenting agreement was that P would remain resident at her father's home, but would see her mother regularly every Friday after school and on alternate weekends for the majority of the daytime of the Saturday and the majority of the daytime of the Sunday. There was also agreement that the school holidays would be shared between the parents. That was the landscape, as it were, that was set out before HHJ Hayward Smith when he came to consider the financial arrangements that might be awarded to the mother in relation to her Schedule 1 claim.

    3. Having heard evidence from both parents, and following submissions made by senior junior counsel on both sides, very experienced in this area of the law, the judge produced a detailed judgment which resulted in the dismissal of the mother's claim, save for an agreement that she would remain living in the property that she had resided in for effectively all of the time that I have described, and a lump sum of £10,000. But the judge also awarded the father the costs of the proceedings, albeit that that order was not to be enforced without the further leave of the court.

    4. It is against that outcome that the mother now seeks permission to appeal. The papers came before Thorpe LJ on 22 May 2013, and he refused permission to appeal and stated:

    "Although this is a hard result for the applicant to accept, I conclude that the judge did not misdirect himself in law or arrive at orders beyond the bounds of his discretion."

    5. The case before the judge was brought by the mother seeking first of all a regular maintenance payment, secondly provision for her to remain living in the property that had become her home (and had been her home with P up until August 2011) until P ceased secondary education or became 18, therefore a period of some six years at the time of the hearing, and she also sought a lump sum to fund needed refurbishment of that property. There were estimates before the court for that work. The father indicated in his estimate that the sum of £75,000 would be sufficient. The mother put in a different estimate which indicated that the figure was nearer £200,000. The judge preferred the father's figure, but in any event a substantial sum was sought by the mother to bring the property back up to a reasonable standard.

    6. The basis of the case put forward by the mother was that she had lived in this property, it had been P's home with her, P was used to seeing her there, and there was therefore a need looked at from P's perspective for that property to be maintained as the mother's home, notwithstanding the fact that P no longer at that time stayed overnight. The application was also made in the light of the mother's hope that that circumstance would change and P would start staying overnight and in the light of the clear and express understanding in the parenting agreement that the father and his new partner would use their best endeavours to encourage P to stay overnight with the mother and would not prevent that taking place if that was what P wanted.

    7. The judge was concerned in part as to whether the court had jurisdiction to make the orders sought. He concluded that there was no jurisdiction to make any maintenance award, and that it would be contrary to authority and indeed principle to get round that embargo upon making a maintenance order by making a lump sum order payable in monthly instalments. Mr Hale, appearing for the mother today, does not seek to challenge the outcome in relation to maintenance.

    8. The second half of the mother's claim was for the property to be put in some form of trust for the benefit of P, but allowing the mother to live there, and for the lump sum for refurbishment. The judge concluded as a matter of law that he did have jurisdiction to make such an order in the unusual circumstances of a case such as this where the applicant was the "non resident" parent, and the judge relied upon an authority Re S (Child Financial Provision) [2005] 2 FLR 94 for that jurisdiction, and again Mr Hale today obviously accepts the judge was right to entertain the mother's application as a matter of law, and so the appeal is attractively described in the grounds of appeal as a one point case, namely the assertion made on behalf of the mother that the judge was wrong, or plainly wrong, in dismissing her application.

    9. Although it is a one point case, rightly Mr Hale refers to a range of sub points that go to back up his overall submission that the judge was wrong. I do not in this short judgment at this permission hearing descend to detail in relation to those matters which I of course have read, nor do I descend to detail by quoting extensively from the judgment of Judge Hayward Smith, which is well known to both of the parties.

    10. The case in a nutshell as put this afternoon by Mr Hale is that the judge lost sight of the aim of the legislation and lost sight of the target that he should have had in mind in determining this application. It is plain partly from the express wording but also from the tone of the judgment that the judge formed an adverse view of the mother. Mr Hale submits that that caused the judge to focus upon the mother and the lack of merit, as the judge seems to have seen it, of her position, and that he did so to the detriment of the interests of the child and that he made an order which is unconscionable plainly wrong, as it were when looked at from the child's perspective. Mr Hale seeks to submit that the mother stands before this court just as she did before the judge on an altruistic basis, that she has no interest for herself in the various applications she was making, and she is here making these applications, to use Mr Hale's phrase, as the agent for the child.

    11. I do not accept that characterisation of the mother's position any more than in reality it is a proper characteristic for any parent in any family proceedings. Matters are more complicated than that.

    12. But the need for this court is to look at the application as one at the moment which comes before it on the question of permission to appeal, I have to be satisfied that there is a reasonable prospect of success if I give permission for the full appeal to take place. I am afraid I just cannot get to see the case put forward by Mr Hale, despite the clarity and force of his submissions, in that light. The judge was fully immersed in the detail of this case. He heard both parties and his judgment shows that he was alive to the issues to and fro as they were in play before him. He was considering a case where the settled life of P had become established in the regime that I have described and there was hope that there might be some staying contact, but no expectation at the time of the judgment that that would take place, or that it would need a particular set of premises in which it could occur. The judge was very clear that the jurisdiction existed, but as he says at the conclusion of paragraph 71:

    "I am not persuaded by that argument that the mother must stay on at [the property] or that she would be unable to acquire another suitable property in which to have contact with [P]. Moreover, the father said that [P] was not worried about the standard of her home. Much more important, he said, is her relationship with her mother. I agree."

    13. Behind the judge's decision is an important finding, and it is that the mother has an earning capacity which she so far has failed to realise to any great degree. He describes her, no doubt for good reason, as an individual with talent and with the ability to earn sufficient to support herself should she choose to do so. The order and the arrangement sanctioned by the court gives a lead-in period of some six months from the time of the hearing for the mother to establish her independence, but thereafter the property is to be vacated by her and, as I have indicated, no continuing maintenance is to be provided to her.

    14. In order to succeed on appeal, it seems to me that the mother would need to be attacking that central finding as to her earning capacity. She does not seek to do that in any effective way in the grounds, and because of the judge's findings of fact, it would be very difficult for her to do that in a way that would persuade the Court of Appeal that the judge was wrong in those findings and wrong in that conclusion.

    15. At the end of the day, hard though it is, this is a case where the mother had lived with P at this property until two years ago, but no longer has P in her care. P does not need to have that property maintained for the mother as a home in order to enjoy the relationship that she now has with the mother and is likely to have with the mother in the future.

    16. Against that background, it is to my eyes not surprising that the judge came to the conclusion at which he arrived, and against that background it is, in my view, nigh impossible for the mother to succeed on an appeal against the judge's determination.

    17. With those conclusions it is inevitable that I can do nothing else but refuse permission to appeal, which is what I now do.

    Order: Application refused

Judgment, published: 19/11/2013


Published: 19/11/2013


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