MP v FB (application under schedule 1 Children Act 1989)
[2024] EWFC 63 (B)
SP v QR
12 March 2024
[2024] EWFC 57 (B)
Family Court
A mum and dad split up, and the mum wanted to stay in the dad's flat until their child finished school. The judge decided the mum could stay, but the dad didn't have to pay for all the things the mum wanted, like extra classes and a car. The judge also made the dad pay some of the mum's legal costs because she mostly won the case.
Key Facts
- •Financial remedies application under Children Act 1989, Schedule 1 by mother (SP) against father (QR) for their 6-year-old child (C).
- •Father incurred £81,152 in legal costs; mother appeared as a litigant-in-person with some early legal costs.
- •Dispute centered on the mother's continued occupancy of the father's flat, valued at approximately £515,000 with a £129,871 mortgage.
- •Father in a new relationship and has a newborn child.
- •Mother sought various orders including settling the flat on her until C completes tertiary education, ongoing mortgage payments, additional child costs, and a lump sum.
- •Father offered a £24,000 lump sum for 12 months rent and continued CMS child support.
Legal Principles
Court's power to settle property under Children Act 1989, Schedule 1, paragraph 1(2)(d) – Court can settle property even with existing mortgage, but cannot order new borrowing.
LT v ZU [2023] EWFC 179, paragraph 34; HHJ Evans-Gordon; Children Act 1989, Schedule 1, paragraph 1(2)(d)
Court's lack of jurisdiction to order top-up maintenance beyond CMS assessment, unless maximum assessment applies.
Dickon v Rennie [2015] 2 FLR 978; Green v Adam [2017] EWFC 24; Child Support Act 1991, section 8(6)
Child Support Act 1991, section 8(8) and 8(9) exemption for disabled children does not apply in this case.
Child Support Act 1991, section 8(8) and 8(9)
In considering financial orders under Children Act 1989, Schedule 1, paragraph 4, the court must consider all circumstances including income, earning capacity, property, financial needs, obligations, and the child's needs.
Children Act 1989, Schedule 1, paragraph 4
Court considers the financial positions of both parents, even those with more modest means, in determining a fair outcome. The fact that reported cases often involve wealthy parties does not preclude orders in cases involving less wealthy parties.
Re P [2003] 2 FLR 865; Morgan v Hill [2007] 1 FLR 1480
In inter partes costs orders, the court considers who won and who lost the case.
KS v ND [2013] EWHC 464
Outcomes
The flat is settled on the mother until the end of August in the year C ceases secondary education, subject to the mortgage.
This ensures C's housing security and balances the father's ownership of the property with the mother's limited income and the long-term financial needs of both parties.
No lump sum order is made due to the father's limited realizable capital and the mother's benefit from the flat for over a decade.
The court assessed the father's assets and determined that a lump sum order was not appropriate given the circumstances.
Father ordered to contribute £12,000 towards the mother's costs.
Mother substantially won the case by retaining possession of the flat, balancing this against the father's success on some points and questionable reasonableness of the mother's claimed costs.