Osbornes represents mother in landmark decision in the High Court
News article published on: 18th June 2007
This was the first reported decision to establish that if a husband and wife agree by consent to dismiss their property claims against each other under the Matrimonial Causes Act 1973 this does not prevent a party issuing a claim on behalf of a child under Schedule 1 of the Children Act 1989 for property on the basis of issue estoppel
Citation :  All ER (D) 144 (Mar)
Hearing Date : 7 March 2007
Court : Family Division
Judge : Baron J
Divorce – Financial provision. The father’s application to strike out the mother’s application, which sought a settlement of property order and/ or lump sum on behalf of the child pursuant to s 15 and Sch 1 to the Children Act 1989, on the ground that it advanced no factual basis for revisiting provision made under an earlier consent order pursuant to the Matrimonial Causes Act 1973, would be dismissed. The concept of issue estoppel was not appropriate in simpliciter in matrimonial cases, particularly when dealing with the developing needs of a child.
Divorce – Financial provision – Consent order – Court granting consent order requiring periodical payments by father – Mother subsequently applying for settlement of property and/or lump sum – Father applying to strike out application – Whether mother estopped from bringing application.
In 1997, the father and mother married. The mother gave birth to a child in 1999. In 2002, they divorced. They reached an agreement, subsequently incorporated into a consent order pursuant to the Matrimonial Causes Act 1973, by which the father agreed to procure for the mother a shared grant of an assured shorthold tenancy of a flat owned by his father. The grant was to be shared with her sister, who also had a child. The mother was entitled to occupy the flat until she or her sister remarried or cohabited, or otherwise until the children reached 18 years of age or ceased full-time education. The father was ordered to make periodical payments in respect of the mother and child. The mother subsequently applied for a settlement of property order and/ or lump sum on behalf of the child pursuant to s 15 and Sch 1 to the Children Act 1989 on the basis that the flat had become unsatisfactory. The father applied to strike out the application.
The father submitted that the application should not proceed as the mother had advanced no proper factual basis for revisiting the provision made under the consent order.
An issue arose as to whether the mother was estopped from bringing a claim under the Children Act 1989 in light of the order made pursuant to the Matrimonial Causes Act 1973.
The application would be dismissed.
Once an issue had been raised and distinctly determined between parties, as a general rule, neither party could be allowed to fight that issue all over again. However, the concept of issue estoppel was not appropriate in simpliciter in matrimonial cases, particularly when dealing with the developing needs of a child.
The requirements of children as they grew always called for the court to preserve its jurisdiction for the protection of the child, which no adult compromise could oust. No mother or father could seek to oust the court’s jurisdiction when it related to a child.
In the instant case, housing had not in any sense in the long-term been definitively decided. There had been a change in circumstances, the child’s needs had changed and grown. The crucial question was the developing needs of the child. The mother had agreed to compromise her own claim but had not, in the particular factual matrix of the case, compromised the right to make claims on behalf of the child. The provision of future housing for the child merited proper consideration. Accordingly, the instant case should not be struck out.
Published Date : 08/03/2007