UD v DN

Lord Justice Moylan:

The father appeals from the order made under Schedule 1 of the Children Act 1989 (“the CA 1989”) by Williams J (“the Judge”) on 7 July 2020. He sought permission to appeal in respect of a number of the provisions in the order but I only granted permission in respect of the settlement of property order made in favour of two of the parties’ children.

The order required the father to settle a property in London (“the family home”) in trust for the benefit of the parties’ two younger children, then aged 19 and 14. The trust period was defined as the period starting with the establishment of the trust and ending on the first to occur of a number of events including the date on which the youngest child attained the age of 18 or 6 months after they completed full-time tertiary education.

The challenged provision in the order provides that, at the end of the trust period, 6.5% of the gross sale price or market value of the family home “shall be held on trust for the benefit of the children … absolutely”.

There are a number of grounds of appeal but, in summary, it is contended:

(a) that any order for financial provision, made on an application by a parent under paragraph 1, Schedule 1 of the CA 1989, must be made before the relevant child attains the age of 18, because the court has no power to make an order under paragraph 1 once the child has attained the age of 18;

(b) that the court does not have power to make a property transfer order or lump sum order to a person who is a child at the date of the order, but who will be aged over 18 when it takes effect or will be paid; and

(b) that, in any event, the judge was wrong to make an order under which the children would receive capital provision when they were adults because there were no special circumstances justifying such an award in this case.

The point argued under (b) does not seem to have been raised below. It appears, as submitted by Mr Howard QC, that it was accepted that the court had jurisdiction to make an order in the above terms, the issue being whether it was justified in this case. Further, in my view, the order made by the Judge is a settlement of property order and not a transfer of property order. Nevertheless, I propose to deal with it, briefly, when setting out my view of the merits of the respective grounds of appeal.

The father is represented by Mr Pocock QC and Ms Kelsey and the mother is represented by Mr Howard QC and Ms Moys. They all also appeared below.

Ba