FINANCIAL RELIEF/ CHILDREN: CF v KM [2010] EWHC 1754 (Fam)

22 JUL 2010

(Family Division; Charles J; 13 July 2010)

The mother was appealing the dismissal of an application made under Schedule 1 of the Children Act 1989 for a lump sum payment for the benefit of her daughter to meet, or to contribute to, (a) the costs of the Schedule 1 claim and (b) proceedings under the Children Act 1989 relating to where the child should be educated and where she should live (s 8 proceedings).

The issue was whether s. 8(1) and (2) Child Support Act 1991 precluded the court's jurisdiction to make an order for periodical payments to cover the costs allowance sought as a CSA assessment was below the maximum assessment and a review of the assessment was not yet completed. Whether the court had the power to order ‘top up' periodical payments before the Commission decided if to make a maximum assessment.

In making a lump sum order, Charles J drew a distinction between two statutory regimes. The ‘equality of arms' point could apply in s 8 proceedings just as in Schedule 1. Applying a purposive and literal approach to the Children Act 1989, Sched 1, para 9, did not have the effect that if and when the court had no jurisdiction to make a periodical payments order it also had no jurisdiction to make a lump sum order other than as a part of the overall disposal of all aspects of an existing Sched 1 claim on a final basis.

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