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Family Law

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Court of Protection Practice and Procedure Conference 2016

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08 APR 2009


(Family Division; Moylan J; 8 April 2009)

In the course of proceedings under Children Act 1989, Schedule 1, in respect of three children, aged 10, 9 and 7, the mother applied for an interim periodical payments order under Schedule 1, to include legal costs. The father argued that the court did not have jurisdiction to include legal costs, relying on the decision in W v J [2004] 2 FLR 300 and arguing that the Court of Appeal decision in Re S [2005] 2 FLR 94, applied only to legal proceedings in a foreign jurisdiction.

The Court of Appeal decision in Re S [2005] 2 FLR 94, clearly established that there was jurisdiction to include a legal costs allowance in an order for periodical payments under Schedule 1. There was no justification for seeking to distinguish between legal proceedings in a foreign jurisdiction and legal proceedings in this jurisdiction, if the proceedings in question were for the benefit of a child. The Court of Appeal had made it clear that the decision in W v J was confined to the facts of case. The court had jurisdiction to make an award of interim maintenance directed towards providing the mother with funds to enable her to meet her legal costs of these proceedings, and it was appropriate to do so in this case for the benefit of the children. The mother had demonstrated that she could not reasonably procure legal advice and representation, at a level of expertise apt to these proceedings, by any other means. The father had the resources to enable him to pay the sum sought by the mother, and the mother's stance in the proceedings could fairly be described as sufficiently reasonable to justify the making of an award in respect of costs. The mother was awarded £40,000, being the shortfall between what she had already paid, and what she was going to have to pay.

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