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Family Law

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Court of Protection Practice and Procedure Conference 2016

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20 JAN 2009

ANCILLARY RELIEF: Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam)

(Family Division; Munby J; 20 January 2009)

In the mother's application under Children Act 1989, Sched 1, an order was made requiring the father to pay £20,000 for the benefit of the child and to settle on the mother £220,000 to be used to purchase a home for the child's use until he was 21 or the end of his tertiary education, whichever was the later. The father's interest in the property was to be whatever percentage of the purchase price £220,000 represented. Although the order was not appealed, the father failed to pay the £20,000 due, and the mother failed to take any steps to purchase a property, including drawing up a deed of settlement. The mother had obtained interim charging orders against property owned by the father in respect of both the £20,000 and the £220,000. Both sides made a number of applications.

Special or exceptional cases apart, dependency ceased at 18, so, such cases apart, any capital settlement under Sched 1 should be expressed as terminating upon the child attaining 18 or completing tertiary education. The court had jurisdiction to change the age in the order from 21 to 18, notwithstanding that the original order had not been appealed. The father was also entitled to an amendment of the order to state that the £20,000 was intended to cover the costs of moving, and that the mother was to account to father for the balance of any money not used for that purpose within a reasonable time, with receipts for all items costing more than £10. There should be two trustees; one appointed by the father and one by the mother. Although a 'cut-off' date for purchase of a home for the child would not be imposed at this stage, the court could set such a date on a subsequent application. The costs to date of drafting the deed were to lie where they fell, and if the parties failed to agree a draft within three months, the deed was to be settled by conveyancing counsel at the joint and equal expense of the father and mother. The mother was entitled to interest on the unpaid £20,000, and the charging order in respect of the £20,000 was to be made final, although the right to enforce it would be postponed. The mother was also entitled to a right to buy out the father's interest in the property at a price to be agreed, or determined by an independent joint valuation. The original judgment had not required the father to 'pay' the mother £220,000, but to 'settle' that sum on her and there was therefore no judgment debt in respect of that sum. A charging order was therefore not possible in relation to the £220,000, and the relevant interim charging order was set aside. However, to provide the mother with security, the court would grant her an injunction restraining the father from dealing with the relevant property. There had been no proper basis for the father's various requests for the judge to reconsider various parts of the draft judgment.

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