The trappings of glamour and wealth: CA v DR (Schedule 1 Children Act 1989: Pension Claim) [2021] EWFC 21

Background

CA (“M”) had made an application for financial provision for a child, “E”, aged 4, pursuant to Schedule 1 and section 15 of the Children Act 1989. M was in a relationship with E’s father, DR (“F”), from 2012, and they shared a home together from 2014 until their relationship ended in April 2019. M issued these proceedings in August 2019.

F was 49 and had two children from a previous marriage, aged 15 and 10. He had generated considerable wealth through his entrepreneurial activities when he was younger, and although he had a number of commercial activities, he was free to organise his life as he wished. In addition to espousing various philanthropic causes, he had a collection of motor racing vehicles worth tens of millions of pounds. His wealth, put at c. £190m, and the income which it generated, enabled him to run the ‘millionaire’s defence’. Although F had in fact provided a significant amount of disclosure during these proceedings, he accepted that he could afford to meet any reasonable order the court made.

M was 40. She was a former British athlete. She had never been married and E was her only child. She had not worked since she moved in with F, and since E’s birth, she had been a full-time carer for E. M had few assets of her own and little by way of savings. She was, in reality, entirely dependant upon F to provide financially for her and E for the foreseeable future (an obligation which F accepted, in principle).

The parties’ positions

M sought a package of financial provision which included:

• A housing fund of £2m plus purchase costs;
• A lump sum of £380,000 to cover various expenses (including the purchase of a car); and
• Periodical payments of £238,000 pa, to include provision for her retirement in the form of a private pension.

F offered:

• Up to £1m (inclusive) for housing;
• A lump sum of £60,000 for incidental expenses;
• Periodical payments for E (to include a carer’s allowance) at the rate of £96,000 pa; and
• Provision for a car by way of lease payments (on the basis that M would change her car every four years).

Standard of living

The home the parties shared while they lived together was a Grade-II listed property in Cheshire’s ‘Golden Triangle’, which sat in one and a half acres of land. It had a value of some £4.36m and at the time of the hearing was the subject of a major building project costing in the region of £2.5m. As a result, F and his elder two children were living in a rented property at a cost of £12,500 pcm. Upon separation, M and E had moved into separate accommodation on the site of the main property, which had bedrooms and kitchen facilities, but was not ideal for them. The parties agreed that M and E should move back to Kent, where M had family and friends. It was also agreed that E should be privately educated, and F agreed to meet her school fees.

M said there were few, if any, financial constraints upon the parties’ spending and the lifestyle choices they made. She pointed to international travel by private jet, with holidays in top-end villas or the most expensive hotel suites, and to the fact that F’s chosen means of transport was his helicopter (which he used to get around the UK and also to go abroad for his motor racing commitments). M’s antenatal care was provided by the Portland Hospital in London. She flew by helicopter to and from her antenatal appointments, and the parties stayed in a very expensive apartment suite in London at a cost of over £5,000 a night for a month before E’s birth in order to be near the hospital. M described eating out at the best restaurants, and produced receipts for the purchase of designer clothing for herself and for E. E’s first ski suit cost nearly £1,000, and, despite her young age, E already had tuition in sign language, French, swimming, ballet, singing and piano.

Roberts J observed that F had the financial resources to devote much of his time to his passion for racing and motorsport, and that that lifestyle ‘brings with it many of the trappings of glamour and wealth’ [19]. She noted that F found it easier to fly himself to race venues in his private helicopter, and that he had employees to ensure his vehicles were transported to wherever they needed to be at any given time. He was accommodated at races in a ‘recreational vehicle’ which was fully equipped with everything he could possibly need, and had cost between €800,000-900,000. He also had a personal assistant who looked after all the arrangements for his travel and accommodation. He accepted that the demands of his business life meant that travel by private jet was the most convenient form of transport when he was not travelling in his helicopter. His elder two children had been a part of this lifestyle and shared F’s home for half (possibly more) of their day-to-day existence.

However, in many respects F was ‘a man of contrasts albeit one who enjoys the significant privilege of choice in terms of the life he leads’ [21]. F owned a very modest holiday home in Wales, which had been his grandmother’s home, and he and his elder children frequently drove to the property at the weekends to enjoy time there. F did not spend much on designer clothes and said his appearance at the court hearing was the first occasion on which he had put on a shirt with a collar for over two years. He described his elder children’s life with him as being ‘grounded and ordinary’. He regularly cooked for them, and if they ate out, it was at local Thai and Indian restaurants. The children had not been on a long-haul holiday with F for over six years. Roberts J accepted that F was ‘not a man who would choose to spend time in the shops of Bond Street or to eat regularly in Michelin-starred restaurants’ [21].

Roberts J found M to be an ‘essentially truthful witness’, but felt that at times ‘there was a degree of overlay in the mother’s attempts to impress upon me quite her extraordinary her life with the father had been’ [28]. F was found to be ‘a perfectly straightforward and candid witness’ [29].

Housing

It was common ground that any property purchased by F for the occupation of M and E would remain his property. The parties agreed that the property would remain available to M and E as a home until E completed her first degree at university, if that was the path she wished to follow, and Roberts J decided that the sale of the property would be postponed until three months after E’s graduation. Roberts J pointed out that F was ‘not alienating capital’, but rather was ‘making a financial investment’ [32]. She noted that while affordability was not an issue in this case, that ‘does not mean that he should be required to sign a blank cheque in order to meet E’s ongoing needs’ [32].

In February 2020, M had produced particulars of five properties in Kent, ranging in price from £1.2m to £2m, and by the time of this hearing she had produced the particulars of three more properties. M’s properties were bench-marked against a property in Cheshire which she had wanted to purchase after the parties’ separation, which had been on the market for £2.15m. At that point in time, M had asked F to buy the property for her and E outright, i.e. she sought outright ownership of the legal title. F said he did not at any stage give his consent to that arrangement, but it was clear from the evidence that M had instructed a conveyancing solicitor and it appeared that F had provided £50,000 to secure the property. The transaction did not proceed in the end, but F’s apparent acceptance that that property was a suitable home for M and E had ‘no doubt created a certain level of expectation in this mother’s mind’ [35].

F had produced particulars of three further properties, ranging in price from £900,000 to £1m, although by the end of the hearing he accepted that the appropriate figure was somewhere between £1m-£1.2m.

Roberts J concluded that F’s proposal was too low, and M’s too ambitious. She considered that a property like one of the properties which M had provided particulars for, available for £1.6m, ‘meets most, if not all, of the requirements which the parties have between them identified’ [39]. That property was a new-build, had 5/6 bedrooms, had a triple garage, was set in landscaped gardens, and had a 10 year new home warranty. Roberts J observed that it was an attractive home which had the outside space E needed, and she had ‘the distinct impression that the mother would be happy to live there’ [39]. Roberts J therefore decided that a housing fund of £1.6m was the right provision, and that F should meet the costs of SDLT and the additional costs of purchase. Roberts J also made provision for the substitution of a replacement property at some point in the future, should M’s circumstances change.

The identification and choice of the new property were left to M by Roberts J, although she stated that F must be kept informed in relation to the property search and had every right to object if there were genuine issues with the property which were likely to persuade the court that M’s choice represented a poor investment in financial terms.

It would be F’s responsibility to ensure that the structure of the property was maintained in good repair, but M’s responsibility to pay for the day-to-day maintenance and internal decoration of the property.

Additional lump sum

M sought £150,000 for the costs of furnishing and equipping her new home. Roberts J did not consider that M would need as much as that, but concluded that given the size of the property M would be purchasing, she would certainly need a substantial sum. Roberts J awarded M £100,000.

M also sought £10,000 for the costs of purchasing Montessori equipment for E. Roberts J decided that it was more appropriate to reflect this expense in E’s ongoing income needs, and declined to make separate capital provision for those items.

In respect of a car, M wanted a Range Rover purchased for her at a cost of £110,000, but F suggested something more modest and maintained that the most cost-efficient way of providing M with a car was by way of a lease. Roberts J considered it entirely reasonable that F should be required to meet the leasing costs of the sort of vehicle which M sought, up to a value of £110,000 (index-linked every four years), and commented that F himself owned a number of Range Rovers. Although Roberts J thought M ought to be able to procure the necessary leasing contract in her sole name, if it turned out that she could not, then it would be F’s obligation to take on the lease, although the choice and specification of the vehicle would be M’s. F would not be required to pay a further lump sum to extract the car M had the use of at the end of E’s dependency from the financial arrangement.

F was also ordered to pay £9,000 for back surgery which M needed. Roberts J commented that ‘[i]n the circumstances through which we are living at the present time, I do not regard the father’s suggestion of joining the NHS waiting lists to be reasonable’ [54].

Maintenance

M’s budget for herself of £238,000, excluding school fees, was broken down as to £42,664 for E’s needs, and £195,323 as a carer’s allowance. Of this, £56,000 was claimed in respect of holidays and weekend breaks which M wished to take each year with E, in addition to £34,000 being claimed for M’s personal expenses.

Roberts J observed that ‘[i]n a case where the resources available to the parties are of this magnitude, it would not be appropriate for me to take a blue pencil to each category of expenses claimed by the mother’ [57]. Nonetheless, Roberts J could ‘see that there are savings to be made’ [57].

Roberts J concluded that a budget of £150,000 pa (£12,500 pcm) in mortgage-free accommodation ‘will provide the mother and E with a good standard of living without penalising the father for some of her more excessive requirements’, in addition to which F would meet the costs of a car and E’s school fees and reasonable extras (although any individual extras in excess of £1,000 per term had to be agreed in advance) [61]. The periodical payments would be index-linked until the end of E’s tertiary education, to completion of a first degree, including a gap year. Once E was at university, F would pay two-thirds of the periodical payments to M, and one-third directly to E.

F could easily meet these costs from his gross income of £3.8m. Roberts J considered that his package of financial provision ‘will ensure that E enjoys a standard of living which reflects his own lifestyle choices and the manner in which he has chosen to live with his other two children whilst acknowledging, as I must, that these are not matrimonial claims but Schedule 1 claims advanced on behalf of a child whose parents chose not to undertake the commitment of marriage’ [61].

Pension

The main challenge F made to M’s budget was the sum of £40,000 odd pa which M wished to apply towards building up a private pension over most of the next 20 years or so of E’s dependency. F maintained that such provision was outside the jurisdiction of a Schedule 1 claim, and in any event was unreasonable.

Roberts J declined to allow M’s claim for an annual sum in excess of £40,000 to allow her to build up a pension. She stated that the claim ‘amounts in effect to an entitlement to build up personal savings over many years of E’s dependency to fund ongoing income needs at a time when the child’s claims have come to an end as a matter of law’ [65].

M suggested that the time had come for the court to revisit the well-honed principles which underpinned the Court of Appeal’s decision in Re P (a child) [2003] EWCA Civ 837, in which Thorpe LJ had said that ‘[t]here 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’ (at [49] of that judgment). M also submitted that Roberts J was not bound by Re P because, strictly speaking, Thorpe LJ’s remarks were obiter.

Additionally, M said that there were public policy reasons why the burden on the state should be reduced by requiring adults to make provision for their retirement. She argued that, without such provision, she would be exposed to the prospect of financial destitution, or, alternatively, would be obliged to abandon her aspiration to devote all her time and energy over the next 14 years towards E’s nurture and care in the event that she had to seek employment to make provision for her own future, which would not be to E’s benefit.

Roberts J concluded that this submission ignored the reality of the future, and the evidence which M had given. M acknowledged that she would inevitably need to look to her own future when E was older and more independent, and said that she wanted to be a good role model to E and had no intention of ‘sitting back and doing nothing’. Roberts J accepted that M had not worked for several years and might need some form of retraining in the future, but considered that the support with which she would be provided by F would ‘provide her with a secure platform from which to think about, and plan for, her own future’ [68]. Furthermore, F had agreed that he would not seek to reduce the level of support for E in the event that M started to earn an income of her own.

Roberts J also took the view that she was bound by Re P, and that by M’s policy arguments, M sought to conflate, or more closely align, the law in relation to Schedule 1 claims with that applicable in matrimonial claims brought under the Matrimonial Causes Act 1973. The extension of the law on Schedule 1 which M invited Roberts J to endorse ‘requires either the intervention of Parliament or a further decision of the higher appellate courts’ [70].

Costs

F had been funding M’s costs. He had already paid in excess of £143,000, and had offered a further £85,000 to meet the outstanding balance which M owed to her solicitors. However, that offer would leave her still owing £12,040. F complained about the way in which M had run up costs and highlighted the costs incurred in relation to the pension issue.

Roberts J took the view that £12,000 odd ‘is not a significant sum in terms of this father’s resources, but it is a contractual debt for which the mother is liable’, and that, as such, ‘it represents a financial need which she will otherwise carry into the new circumstances of her independent life with E’ [72]. Roberts J wanted to see M make that transition on a debt-free basis, and said that while she hoped that F would agree to clear M’s costs in full, if he would not, then F would be ordered to pay any shortfall.

Henrietta Boyle, Barrister at 1 Hare Court