Schedule 1 Children Act Applications - Timokhin v Timokhina [2023] EWHC 58 (Fam)

Background

The case of Timokhin v Timokhina [2023] EWHC 58 (Fam) concerned proceedings for financial provision under Schedule 1 of the Children Act 1989. Schedule 1 applications are made to secure financial support for the benefit of a child or children. Under Schedule 1 of the Children Act 1989, the court has the power to make a variety of orders which may include: An order for a lump sum; an order for a property transfer or settlement of property and periodical payments.

The proceedings were issued by the Father, who was seeking financial provision from the Mother on behalf of the parties’ two children aged 18 and 11, who had been residing in London with their father since 2018. The Respondent Mother resided in Russia and there had been no contact between the Mother with either of the parties’ children since they had relocated to London.

It is important to note that both of the parties to the proceedings were extravagantly wealthy with the Mother owning property in Hampstead, London, which the Father estimated (due to a lack of disclosure from the Mother) to be worth approximately £6 million pounds and the parties’ children had both experienced lavish lifestyles and private education during their time in the United Kingdom.

Under Schedule 1 Children Act 1989, the Father sought a variety of orders, including a lump sum order of £340,000 to cover costs he had incurred on behalf of the children such as school fees, staff expenses, tutors, drivers, and holidays dating back to 2018; and an unquantified sum for the children’s expenses dating back to 2018 as well as ongoing periodical payments.

The Application Hearing

At the hearing of the Father’s application, the Judge made an order imposing a temporary stay on the Father’s application until (i) the parties’ court case in Russia was determined, as those findings would be relevant to the Father’s application; and (ii) to allow the conclusion of any potential appeals by either party in their divorce proceedings.

A costs order was also made against the Father to pay the Mother’s legal costs in the sum of £13,374.72. The Judge’s reasoning for making a costs order was due to the fact that when issuing his Schedule 1 application, the Father had failed to take into account that there was insufficient information available to the court regarding the financial resources of each of the parties because the parties’ divorce proceedings had not yet been resolved, which the court would need to be able to make any orders in respect of the Father’s Schedule 1 application as well as the fact that a breakdown in communication between the parties had led to cross-applications being made.

The Permission to Appeal Hearing

The Father appealed to the High Court against the orders of the Judge. The permission to appeal hearing was heard by Mrs Justice Roberts in December 2022.

At the hearing, it was decided that the order for a stay of the Father’s Schedule 1 Children Act application was justified on the basis that the scale of the Father’s existing wealth demonstrated that he did not desperately need financial assistance from the Mother in order to continue to provide the children with the privileged lifestyle that they currently and would continue to enjoy.

The Father had appealed the stay of the Schedule 1 proceedings on the basis of principle and his entitlement to look to the children’s mother in this case for an appropriate contribution towards the cost of raising their children due to her absence. It was the Father’s position that the Schedule 1 application was a “straightforward piece of litigation”, despite the property element of the Hampstead property being a major factor. Mrs Justice Roberts held that the Hampstead property was likely to prove a significant cause of disagreement between the parties and she therefore concluded that this factor alone removed the Schedule 1 application from being straightforward.

In terms of the costs order made against the Father, it was his position that the Judge had been wrong in principle to make an order against him.

Ultimately, permission to appeal was refused in relation to the stay of the Schedule 1 proceedings and the costs order made against the Father.

In relation to the stay, a clear conclusion was reached that the English court could not carry out an assessment of each parties’ financial resources and/or conduct the balancing exercise required in the context of the Schedule 1 proceedings until the outcome of the Russian divorce proceedings, including the parties progressing through the financial remedies process and the revelation of the subsequent impact on the financial resources of each party.

It was further decided that the children of the parties would not experience any financial prejudice as a result of this decision which was the overriding objective. Mrs Justice Roberts explained that she could not see any basis upon which the Judge’s decision to stay the Schedule 1 proceedings had been wrong as the Father’s Schedule 1 proceedings could effectively proceed once the outcome of the parties’ divorce was finally determined.

In terms of the appeal against costs, Mrs Justice Roberts concluded that Judge’s decision to make a costs order against the Father was supported and justified by the fact that whilst the Mother had not succeeded in her applications to strike out the Father’s schedule 1 proceedings, the Judge had taken the view that the Father could have avoided the burden of the Mother’s costs at the application hearing if he had made sensible proposals, including an acceptance that the Schedule 1 proceedings should be stayed pending resolution of the Russian divorce proceedings.

Discussion

On the facts of this particular case, the Father’s application was premature and/or had there been more constructive communications between the parties’ legal representatives, a costs order could have been avoided by the Father.

If you are considering a Schedule 1 Children Act 1989 application and are unsure on how the relevant legal principles and procedural framework would apply to your particular circumstances or simply have any related questions, then please feel free to contact a member of our family team today who will be able to assist you.

Jessica Pinches