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Family Law

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28 NOV 2006

ANCILLARY RELIEF: Hill v Morgan [2006] EWCA Civ 1602

(Court of Appeal; Thorpe, Keene and Hughes LJJ; 28 November 2006)

Under Children Act 1989 (the 1989 Act), Sch 1, para 10(3)(b) the court was empowered to alter an agreement concerning child maintenance provided it was satisfied that the agreement did not contain proper financial arrangements with respect to the child. It was not necessary to demonstrate that such an agreement was massively inadequate in order to obtain a judicial award greater than the agreed settlement. In upholding the judge on the facts of this particular case, the court did not intend to depart from the approach adopted in previous cases under the Matrimonial Causes Act 1973. Whether a claim was brought under the 1989 Act, Sch 1, para 1 or para 10, the first hurdle that the applicant had to surmount was the pre-existing agreement, which must be either demonstrated to be unenforceable given the circumstances surrounding its creation or, as the judge here found, inadequate in its extent. Thus the pre-existing agreement was the starting point of the court's assessment; it was plainly one of the circumstances of the case and the weight to be attached to it would vary from case to case. If the court conceived that the applicant was capricious or unreasonable in seeking to depart from the terms of the agreement then the dismissal of the application would naturally follow. The appeal would be allowed in part, because the judge had imposed financial obligations on the father which had the effect of conferring benefit on another of the mother's children who had a different father. The court's jurisdiction under the 1989 Act, Sch 1, para 1 was limited to making an order against a parent of a child; there was no jurisdiction to make an order against the father for the benefit of another person's child. Pending changes to bring the procedure of financial claims under the 1989 Act into line with applications brought under Matrimonial Causes Act 1973, parties should seek agreed directions that financial information be exchanged by the use of Forms E and that any questionnaires be limited to those directed by the court. Further they should seek a direction for an appointment to be treated as a privileged occasion in accordance with the practice governing FDR appointments, although this could only be achieved consensually. In any case in which the applicant had a statutory claim against more than one father the court should ensure that the applicant established their respective liabilities at a consolidated hearing or at consecutive hearings. In exceptional cases consideration should be given to separate representation of the child, although even if there were no financial impediment to separate representation special circumstances would need to be demonstrated.

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