V [2012] EWHC B36 (Fam) (21 November 2012)

Neutral Citation Number: [2012] EWHC B36 (Fam) Case No: FD22P04008 IN THE HIGH COURT OF JUSTICE FAMILY DIVISION IN THE MATTER OF SCHEDULE 1 THE CHILDREN ACT 1989 AND IN THE MATTER OF Z Royal Courts of Justice Strand, London, WC2A 2LL 21 November 2012 B e f o r e : HHJ Horowitz QC (sitting as a Judge of the Family Division) ____________________ Between: PG Applicant And TW Respondent Respondent ____________________ Philip Cayford QC and Jonathan Tod (instructed by Brookman Solicitors) for the Applicant Nicholas Francis QC (instructed by OGR Stock Denton LLP) for the Respondent Hearing dates: 9, 10,11 & 12 October 2012 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Note: The current and agreed rate adopted during the hearing is in rounded figures £1=14 Local Currency (LC) although during the period under review the rate has fluctuated historically reaching £1=11 LC Directed pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. HHJ Horowitz QC : By her applications issued on 19 May 2011 and amended on 8 March 2012, PG, mother and applicant, applies under Schedule 1 of the Children Act 1989 for financial remedies by way of housing capital and periodic financial provision, including education costs, for her daughter Z, born in 2008, the child of her former relationship with the respondent father. Background History Mother and father were born in Africa. She is 25 and he is 30 years old. Father is a prominent and gifted footballer. The parties formed a relationship in 2007, the mother coming out to England to live with him. Their daughter Z, was born in 2008 in Africa. She is described as a planned child and in a happy feature of the case is loved by both of them. Unhappily, the parties' relationship ended in March 2009 although mother and Z returned to their country of birth in October 2008. Mother moved in to live with her parents who helped her in childcare. A final attempt at reconciliation failed in March 2009. She took a job to support herself in April 2009. The father moved to Europe as a professional and in recent years has played in England. Procedural History There have been parallel and to an extent overlapping and intertwined proceedings both, initially, in Africa and in the jurisdiction: (i) Africa In June 2009, mother brought proceedings in a local magistrates Court for maintenance seeking 5000 LC or about £350 per month. A settlement was reached in that figure as is recorded in the judgement of the local court on 12 April 2012. The mother did not sign a formal record of the agreement because, she says, of continuing dispute over the quantum of contact to the paternal grandmother. In August 2009, the mother instructed a second set of African lawyers who claimed maintenance at a higher rate, 30,000 LC or £2300 per month for Z varied to a claim for £3400 equivalent to include au pair and domestic assistance. She subsequently withdrew her claims on the eve of the hearing in June 2010 agreeing to accept 15,000 LC per month, or £1150. There appears to be no African equivalent to the jurisdiction to award capital provision; by section 18 (2) (d) of the local Children Act cited by the African judge, Judge M, parental responsibility includes a responsibility to provide maintenance. The judgement does not address any obligation on the father of means even of considerable means to house the mother. As an indirect remedy, Ms PG was advised by one set of lawyers to achieve capital security by action for breach of promise to marry - a form of action abolished in this jurisdiction. Another set of lawyers advised that her prospects of success were slim and she withdrew that claim. The father is critical of the mother's stop start hesitant litigation in Africa. But it is plain that the reason she withdrew is that she was advised of the jurisdiction of the English court and the scope of orders it might make. Her English solicitor Mr Brookman, in his statement says that he was first contacted in May 2010 by her African attorney. Initial preparation, including the instruction of Mr EM - see below – took some months: hence the issue of English proceedings in May 2011. In the English proceedings, the father agreed at an interlocutory hearing to pay the mother £1000 per month or LC equivalent and a lump sum of £35,000 towards her continuing costs. No application was then made by the father to invite the London court to discontinue on the basis of an exclusive or superior African jurisdiction. Mr TW did, however, continue the African proceedings seeking an order against himself which the mother sought to resist on the basis that the English proceedings were now well-established. The final African hearing took place in December 2011, judgment being given in April 2012. Mother's legal team sought to dismiss on the basis of the now instituted London proceedings. Judge M dismissed that application. While acknowledging that a court of competent jurisdiction in England might make a maintenance order in time to come (sic) – in proceedings issued 11 months before his judgment and in which both directions and 2 interim provision orders have been made by consent - that did not warrant suspension of the proceedings before him where the parties were African residents. " Other considerations of convenience and of equity include that the expenses relating to the maintenance of Z are and will continue to be incurred in Africa and that she must be maintained according to local standards ." Judgment [17]. The judgment does not address the newly discovered powers of the English court to make capital provision. (ii) English proceedings: The mother's application in this jurisdiction was initially issued on 19 May 2011 and her Form E sworn on 4 September 2011. The mother's statement annexed a set of schedules prepared on her behalf to set out her budget costs including furnishing prepared by Mr EM, an accountant practising in the African country dated May 2011. He later provided a fuller statement on 31 May 2012. The Father's Form E in reply is undated in my Bundle but is said to be sworn in August 2011. Responses to questionnaire were filed on his behalf dated 24 October 2011. His full statement was initially directed to be filed by 12 March 2012, a deadline extended by Theis, J on 4 May 2 to 25 May but only served on 19 July 2012. At the date of issue, applications made by an applicant parent for a child living overseas were restricted by paragraph 14 of the Schedule to claims for periodical payments and secured periodical payments only thus excluding lump sum and capital provision for housing or any other purpose. It is, however, to be noted that the mother's claim was initially costed on the basis of house rental levels in her location of choice, a desirable suburb of the capital city in the African country. That restriction on the court's powers was uncapped by the EU Maintenance Regulation 2011 giving effect from 18 June 2011 to a directive of the European Union made in 2008 which removed all restrictions on an application by an overseas resident against a respondent resident- as this father was at all material times- in England and Wales. That side effect of a regulation with a wider impact on family law and practice went unnoticed in the profession and by both sides for some months. It was not, for example, in the minds of the parties' lawyers at the First Appointment hearing before district Judge Hess on 5 September 2011: the Order records the parties' incorrect and obsolete agreement that the powers of the Court were limited to periodical and secured periodical payments. On 11 October 2011, DJ Hess made a consent interim maintenance order of £1000 per month payable in LC together with an award of interim costs of £35,000. Following an unsuccessful FDR, District Judge Walker gave directions and transferred the application to the High Court on 12 December 2011. The father increased his interim provision by consent to £1,300 per month LC equivalent. When the mother's legal team became aware of the uncapping of restrictions on applications made by an overseas parent, in as I understand very early 2012, they immediately notified the father's solicitors and made an application to fit the now unrestricted powers of the court. District Judge Aitken's Order of 8 March 2012 granted permission to amend and sensibly abridged full re-service or the filing of duplicate evidence. The respondent's advisers initial reaction promptly made also on 8 March 2012 was to issue an application to strike out which was transferred to the High Court with directions by District Judge Malik on 29 March 2012. At the conclusion of the cost funding hearing before Theis J on 4 May 2012, the court gave further directions and set a date to determine the strike out application but, sensibly, the objection was abandoned shortly afterwards. There remains an outstanding issue, delegated to me by the judge, whether should give leave to report the transcript of Theis J's judgement should be reported. Theis, J ordered £45,000 litigation funding within 14 days plus £27,000 towards the cost of the dismissal application unless it was dropped within 21 days, £10,000 per calendar month towards future costs until trial together with the mother's costs of the application before her on the indemnity basis to be assessed if not agreed with an interim payment in any event in the sum of £40,000. The declaration to the order recites for the avoidance of doubt that the rolling payment of £10,000 per month is earmarked for future and not already incurred costs. Theis, J expressed serious concern at the costs which totalled £270,000 of which one third was incurred by the father. Total costs are now in excess of £600,000. A precipitate and as now agreed redundant application requiring the father to attend for questioning for default in payment of one month's maintenance under the May order was put before me at the PRFD as box work but not pursued on 20 July 2012. The Applicable Law - Children Act 1989 Schedule 1 On application by a parent (etc) the Court may order payment to the applicant for the benefit of the child or direct to the child of periodical payments, secured periodical payments, lump sum, and settlement or transfer of property. The Court's discretion in deciding whether and how to exercise its powers is guided by a six-point checklist which has parallels with but is narrower than s25 of the Matrimonial Causes Act 1973. Regard must be had to all the circumstances of the case including, present or foreseeably likely finances, needs, obligations and responsibilities of the parent and child, the financial needs of the child and the manner in which the child is being or expected to be educated and trained. Thus there is no express reference to the contribution the parties have made or are likely to make or to the standard of living enjoyed prior to the breakdown of the marriage/relationship or its duration. Absent disability, the limitation to or for the child has the effect that the duration of any order requiring periodical payments or property to be provided can only run during minority or education or training with reversion thereafter to the paying parent; T v S (Financial Provision for Children) [ 1994 ] 2 FLR 883 Johnson J and A v A (A Minor: Financial Provision) [ 1994] 1 FLR 657 Ward J (where the application for longer term housing was rejected but periodical payments ordered at a higher rate than requested). The entire focus is on the needs of the child and not the parent as recipient directly or indirectly save as in her role as carer. So calculations of the appropriate provision to be made do not include a margin to enable the recipient caring parent to fund a pension, endowment or otherwise put away money for a rainy day or, indeed, the end of the years she has dedicated to the upbringing of the parties' child. But within those limiting guidelines, the leading cases demonstrate that the operation of the Schedule is to be applied with flexibility and on a realistic ample scale particularly in the case of a wealthy paying parent. The application of Schedule 1 is a discretionary exercise within its own specified parameters and not governed by the over-arching paramount welfare test of section 1 of the 1989 Act. Nor does the Schedule itself include an introduction as inserted into section 25 (1) of the 1973 Act directing first consideration to be given to the welfare of the child. But in J v C (Child: Financial Provision) [1999] 1 FLR 152 @ 155 Hale J (as she then was) referred to her own role at the Law Commission in observing that welfare must be one of the relevant circumstances. In the now leading case of Re P (Child: Financial Provision) [ 2003] 2 FLR 865 at [44] Thorpe LJ expressly amplified that observation: welfare was not merely a relevant circumstance but would generally constitute " a constant influence on the discretionary outcome … because the purpose of the statutory exercise is to ensure for the child of parents who have never married … support against adult irresponsibility and selfishness, at least insofar as money and property can achieve those ends ." It follows as Bodey J said in Re P (above) that the length and nature of the parents' relationship had no bearing on welfare and so would almost invariably be of no relevance to the outcome. Notwithstanding the limitations inherent in the scheme of the schedule, provision for a child necessarily imports recognition of the role played by the carer as was recognised in proceedings under the previous legislation by a notional or even strictly calculated carer's allowance; Haroutunian v Jennings (1980) 1 FLR 62, CA Divisional Court. The approach to quantification of that element should not be restrictive by analogy with claims for personal injury or accident claims. A more generous approach is not only permissible but realistic and the exercise is broadbrush; Re P at [43]. There is no parallel to the s25 guideline of standard of living enjoyed by the parties during the marriage: many Schedule 1 cases involve no or limited cohabitation. But the discretionary application of the Schedule will generally involve holding in tension the child's entitlement to be brought up in circumstances which bear some sort of relationship to the paying father's resources and present standard of living while guarding against unreasonable claims on child's behalf which contain a disguised element providing for the mother's benefit rather than the child; per Hale J in J v C (Child: Financial Provision) [1999] 1 FLR 152 approved by Thorpe LJ in Re P (above). In Re P , Thorpe LJ suggested at paragraphs [45-47] an analytical framework applicable at least along the spectrum from affluent to fabulously rich and thus more likely to be litigated: i) The starting point is the decision at least generically on the home to be provided by the respondent in value, size and location; ii) That choice bears upon and frames the reasonable capital cost of furnishing and equipping the house as well as future income needs both directly in the case of outgoings and indirectly in the case of external expenditure such as travel, education and holidays; iii) A lump sum appropriate within that determination will provide for the cost of furnishing, equipping the home and a car. iv) Next step is to determine the budget the mother reasonably requires to fund her expenditure on maintaining the home, content and meeting other expenditure external to the home including school fees, holidays, routine travel expenses, entertainments presents etc. v) The assessment is broad but will include the mother's allowance which is checked but not diminished by the absence of any entitlement in her own right. While there is to be no slack or margin for saving, the court must recognise the sacrifice of the unmarried parents generally the mother as primary and usually exclusive carer with a budget that reflects both her position and the position of the father, both social and financial. She is to be free from anxiety or resort to parsimony where the other parent chooses to live lavishly. vi) The Court is required to navigate between rival budgets produced by specialist family lawyers on a broad commonsense assessment [47]. I add that on both sides this is a calculation of a household not formed and election between an aspirational budget and a critique of proposed alleged extravagance quite different from the factual task performed by a court under section 25 forming an evidential view as to the standard of living actually enjoyed and the accuracy of its recollection by the parties. vii) Bodey J in what I respectfully describe as a helpful and succinct supporting judgment proposed that in big-money cases the mother's budget should be painted with a broad brush without being bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. The better approach was to seek to achieve a fair and realistic outcome by the application of broad commonsense to the overall circumstances of the particular case. I have also helpfully been referred to the careful judgement of Mr Peter Hughes QC (before he was appointed to the bench) sitting as a deputy High Court judge who applied the principles and suggested approach of Re P in a claim made for provision from a highly successful businessman of very considerable wealth in H v M decided in February 2006. See paragraphs 77 – 83 and 103- 125. Although the father appealed – Morgan v Hill [2006] EWCA Civ 1602 , [2007] 1 FLR 1480 - the adjustments to the award dealt with marginal issues specific to the case and not the quantum of the housing and income awards. Parties' Positions The mother's open proposals are set out in her solicitor's letter of 23 July 2012 in advance of sight of the father's then overdue statement . i) Housing provision upon Schedule 1 terms for occupation with Z until age the later of 18 or completion of first-degree: the mother had originally suggested, via Mr EM's May 2011 report, a rental at 130,000 LC a month in either of two expensive, well-established and prestigious suburbs to the north-east of the capital city. Following the failed FDR, the offer letter made an alternative and cheaper suggestion to purchase in one of two of newer neighbourhoods including EC to the West. ii) Mr Cayford QC's opening document cites a purchase price of £435,000 but the figure in the letter at A1 is £395,000 inclusive of purchase costs (as to which I have no information) which at the exchange rate cited of 12.9 = 5,095,500LC. iii) But the 2 sets of particulars at A 15 & 17 of Bundle 1 show 2 three-bedroom houses in EC both inclusive of staff quarters and priced at 4,200,000 LC = £300,000 at the current exchange rate. These were the properties Mr Cayford QC relied upon to open and close his case and so represent a two-step drop from the mother's original claim for housing need. iv) Fitting out : A lump sum for removal expenses and primarily fitting out her new home from scratch. Mr Cayford has deployed the figure of £91,000 but the amalgamated Schedule at 1C56 totals 1m LC, a figure confirmed at para 65 of his closing note, inclusive of LC 72,310 contingencies or £71,428. v) General maintenance including carer's allowance equivalent to £9,000 per month (£108,000 per annum). Periodical payments to reduce to £6500 per month in tertiary education of which £1500 to be paid direct to Z. vi) Provision of a new car priced at £30,000 such as BMW series 1, replaced every three years or a car fund of £117,500 adjusted to £87,500 at paragraph 32 of his opening note. vii) School fees : private education as agreed. Mother suggested 2 private schools within travelling distance one in particular with the Christian ethos. She told me that Z was due to move from nursery school with effect from January 2013, a suggestion the father resisted although he did not have direct information of his own. There is no reference to cost of medical provision. viii) Security : a trust fund to be established to cover all the above provision in the estimated sum of £1,830,000. ix) A lump sum to provide for totality of the costs incurred by her in Africa equivalent to the indemnity basis, without differentiation between contact and financial elements in those proceedings. x) Full costs on the indemnity basis with credit for and inclusive of costs in the London proceedings directed to be paid by Theis J on 4 May 2012. The father's counterproposals are dated 14 September 2012. He offered: i) Housing : a purchase in his name for Z's occupation and her mother if she is with her to the value of 1,800,000 LC (£128,500). The property to be held for her use until age 18 only and in the event of a third party other than the maternal grandparents living in an occupation rent payable as advised by 2 local estate agents. ii) Home setup costs : £15,000 on the basis that most appropriate properties will already have fitted kitchens etc installed. iii) Periodical Payments/maintenance : Z to be maintained at the African Court rate, 12,000 LC or £857 per month (£10,285 pa). As for her mother, the primary contention that no carer's allowance was due and payable on the twin bases that (a) he was not liable to pay it as this remains primarily an African case – where the concept is unknown – and (b) he is only in the jurisdiction on "a very temporary basis"- - an assertion made 6 weeks after he had signed with XFC to age 35. If that contention failed, the suggested alternative was a figure equal to child maintenance, 12,000 LC per month. The letter ends somewhat confusingly with an offer to pay a carer's allowance of 24,000 LC a month suggesting a total of 36,000 LC per month or £2571 (£30,850 per annum). iv) Education : education at agreed schools and private medical care "as dealt with in the African Order". v) Car : purchase of a one-year-old Toyota Yaris/Ford Fiesta at £12,000 replaced every five years. vi) Costs : no order or offer in respect of the African costs and English costs on the standard basis. Evidence I heard evidence from the mother, Mr EM, a practising chartered accountant who with colleagues in his office advised and helped the mother in the preparation of her housing proposals and budget proposals, and from the father. The evidence of mother and Mr EM can be considered jointly. Ms PG was, I thought, a straightforward and honest witness although understandably somewhat overwhelmed by the weight of the litigation and anxious about the costs that encompassed her. She has put her trust to a considerable extent in the hands of her advisers, particularly her African lawyer and the accountant he instructed, Mr EM. The mother's evidence and her case is direct and simple. She has no assets and nil savings. She lives with her parents in their modest house in a city suburb. It is a bungalow - 2 photographs appear in the bundle. It is a three-bedroom property and she has to share with Z. There is laser beam alarm security fitted but the house is not in a gated community. She is 26 years old. She works for an African company as a campaign manager, a new job which she took at a higher rate of pay last July, increasing her earnings by about 4,500 LC per month. Her housing priority is for good quality accommodation in a gated community with 24-hour security personnel. In support, she pointed to the high crime rate in the country and the frightening recent incident in which her father intercepted and shot dead an intruder who did not have to confront the obstacle of gates or guards. She credibly described the level of security in her parents' suburb as "scary". Her first suggestion for housing was in the direction of a top suburb, which as explained to me is a long-established as a wealthy and sought-after suburb to the north-west of the city. An initial table of available properties there prepared with the assistance of Mr EM runs the spectrum from 2,887,000 LC to 7,747,000 LC, an average of 5,523,050 LC or £394,500. She has twice modified her position since the FDR. Her example property particulars in opening and closing remained the 2 properties on the EC Estate. They are both modern three-bedroom houses with servants' quarters or guest cottage annexed and priced at 4,200,000 LC or £300,000. Miss PG's budget includes provision for an au pair together with, she suggested, week day live in help. That, she explained, was not uncommon in Africa with its 25% unemployment rate and where domestic staff costs were much lower. Her budgets for living expenses, fitting out her house and for house purchase were all assembled with the professional help of Mr EM, an accountant. I do not consider that of itself to be reasonable criticism of this young and, if I may say so, not particularly sophisticated or professionally experienced young mother taking careful advice particularly against the formidable legal resources available to Mr TW in Africa and in London. Mr EM was a transparently candid and engaging witness. This was the first case of its kind in which he had been instructed. He assigned himself and members of his office with enthusiasm to his commission. I detected an element of riding gallantly to the assistance of a young woman to redress the balance of resources deployed against her. The Schedules, which were initially compiled by Mr EM and then discussed with Ms PG, thus reflected an edge of overenthusiasm and should have been pruned or more closely aligned to the mother herself. Her first Budget for monthly living expenses for herself and her daughter totalled 130,000 LC per month (£9285) or £111,428 per annum. The house fitting out budget is a 17 page exercise plus totalling 1 million LC or £71,428 inclusive of 109,000 LC extras and provision for extras or, as he described it in evidence, contingencies. Mr EM assured me that all prices for furniture and contents were taken from price lists from mid range and not luxury stores the equivalent as I understood it of, say, John Lewis. Mr TW told me that they were at the luxury end of the retail spectrum. I accept Mr EM's assurance. But, of course, stores in that category carry goods across a wide range of price and quality. Whatever their source, vigorous criticism is made of these estimates which are, of course, a forecast of future expenditure or aspirational rather than evidence of past living standards. Mr Francis QC focused on a number of items of equipment which were, he suggested, excessive or even unnecessary. A few of them were items Miss PG herself did not recognise. I do find that there is excess in both schedules as an inevitable consequence of the methodology adopted. But the proper response at all stages of this litigation was not mere rhetorical complaint but a reasoned and early counteroffer within the guidelines offered by Re P . P's Evidence In the long run up to the hearing. mention has been made of what has come to be called the Millionaires' Defence , essentially the proposition that the father is not or should not be obliged to condescend on particulars of his financial position since he can, it is asserted, regardless of any specific finding as to his capital, income or financial future, meet any Order the Court can properly make within the Schedule and the case law guidelines. It appears in the African judgement of Judge M delivered in April 2012. No particulars of the father's means are there set out and it is plain that none were provided. The concept has an historical background in ancillary relief; cp Thyssen-Bornemisza . Its context is the now obsolete doctrine that however rich the husband, a wife's claim in ancillary relief was confined to her reasonable needs – or requirements – as defined by the Court. Post White , I cannot see how that survives the sharing principle in the modern triad as explained in cases such as Charman . Nor in my judgment can it be properly applied to the Schedule which (a) requires information to be provided and (b) obliges me to have some regard to avoiding too gross a disparity between the standard of life of the father – with whom Z will hopefully have extensive staying contact now in the UK and on his likely return to Africa. In these proceedings, an early probing feint from mother's solicitors invited Mr TW to concede that was where he placed himself. Paragraph 5.1 of Mr Francis QC's opening statement says of his client "He is well paid and currently earns sufficient to meet any order the Court may reasonably make and need not be in concerned with any enquiry into his means." Mr Francis' statement was redundant when it was made. The father has, and properly in my judgement, given evidence of his means in his Form E and by answer to questionnaire. A better restatement which has in fact been observed by the parties is that it would have been disproportionate to approach in excessive detail an inquisition in respect of Mr TW's income capital and outgoings by, for example, requiring him to identify all debits and credits passing through his bank accounts in excess of, say, £1,000. No such questions have been addressed to him. He answered the questionnaire fully. The only contentious issue of which I am aware was the curious reluctance to produce his recent signing on contract until the last moment. Proportionality does not absolve Mr TW from disclosing an accurate outline of his financial affairs. I make it plain that I do not suggest that Mr TW has been intentionally evasive in any way in his disclosure. He has not, though, always given that somewhat tedious task his full attention in the detail and I accept, of course, that he leaves financial management to his paid advisers. He also, as he candidly explains in his July statement, retreated from full engagement in large part in pique at what he regarded as the mother's unwarranted change of tack in making capital claim and excessive demands. Mr Cayford QC submitted in closing submissions that his disclosure had been woeful. I do not go that far and I am satisfied that he now has clarified his financial position in questionnaire and answers in oral evidence. While the process has only been completed during the hearing, I am satisfied that I have a sufficiently broad picture of his finances and way of life which it supports to apply the criteria in the schedule. By his Form E, Mr TW concisely and accurately stated his then gross income of £2,267,912 at YFC or £1,115,865.50. In addition he received image rights of £843,345. Under his new contract his net will increase by £159,135 (or £3,000 per week) to £1,275,000 plus a signing on fee of £1m taxable at 45% from April 2013 by quarterly instalments from January 2013 of £450,000 net. In addition and legitimately deploying his non-Dom status, £843,000 image rights are paid out of Spain by one of the leading sports footwear manufacturers into his BVI investment company without entering the UK fiscal system. However, his Form E statement of income needs at £18,750 per month plus £2700 paid to his mother brother and sister in Africa, or total of £257,400 is not just imprecise but as emerged in the answer to questionnaire and cross-examination also inaccurate. A more accurate answer to his expenditure in answer to questionnaire shows rental payments of £96,000 per annum at his last address and current lower payments of £72,000 pa in the city in which he now lives, where I can assume rental levels be comparatively cheaper for equivalent luxury properties. He lives with his partner in a five bedroom house with garden and swimming pool. That document restated his expenditure as £420,000 per annum excluding maintenance for the applicant. When he came to give evidence, Mr TW was impressive, and in many ways candid. He displayed both grace and charm and more than a hint of the determination that has taken his talent to the top of his profession. His evidence, taken as a whole, was a curious combination of concessions that might be regarded as overdue and adherence to the hard line taken in his July statement and September offer. Mr Cayford QC skilfully but succinctly elicited a picture of his style of life. Mr TW identified £5,600 spent on buying himself a Rolex watch at an airport boutique in February 2011, £6,000 spent on a holiday at a well known luxury hotel in Morocco. Mr TW keeps 2 Aston Martins, the newer purchased recently for £120,000 and a Mercedes in Africa. I like fancy cars, he told me. I am a town boy and I never had things when I was a kid. He has an 18 month old daughter by his partner and plans to move to one of the desirable suburbs near his current employer. In rounded figures, he spends £425,000 net annually, inclusive of the allowance of E3,000 a month he sends to his mother which also supports his brother. His household expenditure runs at £4,000 per week or £200,000 per year. He deftly deflected the manifestly inaccurate assertion in his offer letter that he lived modestly to explain that he meant in comparison with other footballers. His expenditure is not just well within his means. It allows steady accumulation of capital. The company accounts disclosed in answer to questionnaire show that as at September 2011 investments in funds, property syndicates, venture capital, shares and loans came to £5,651,279, an increase of almost £1 million on the preceding year. At that rate, his capital may now be approaching £6.5 million plus £600,000 rolling due net under his signing on fee - less any provision for the cost of this litigation. A projection, absent injury, to his retirement from top-class football at 35, as suggested by his new contract, would take his total net worth to c£10 million. In oral evidence, Mr TW easily and gracefully conceded some but not all of the mother's claims resisted until he entered the witness box. He acknowledged that he respected her as a mother. He abandoned his reservation at paragraph 17 of his July 2012 statement in which he queried whether Z would be comfortable in private education. He reasonably asked only to be consulted in the choice between a number of excellent private day schools. He conceded that the mother's requirement to live in a home of her own in a gated community with 24 hour security was reasonable. He now accepted that the mother's proposed estates were suitable but insisted that properties could be bought in either for LC 2m. His price reference point, at one stage in his evidence, was the property recently purchased for his mother at a cost of c£156,000. He stood by his fitting out offer of £15,000 which was reasonable by comparison, again, with the help he provided for his mother of £12,000. Her new home, he pointed out, came with a kitchen fitted with cooker and refrigerator by the builder. On Thursday morning, however, Mr TW's legal team brought in a new set of particulars, a pair of properties, each of which included housekeeper accommodation, priced between 2.3 million and 2.8 5 million LC (£164,000 -- £203,000). Both were located in gated communities with 24 hour security. One included staff accommodation, the other a "teen pad or granny flat" (and swimming pool). I did not detect any serious insistence on the limitation of mother's right to occupy with his daughter terminating at age 18 or the end of the secondary education. He was a little firmer on the request to levy an occupation rent whenever a third party might move in. He retreated from the offer of a one year old Fiesta car advancing to conceding a new VW Golf at £12,000 equivalent. There was, he said, no problem with the car she was seeking. But he said that Africa did not have the concept of a carer's allowance and he did not, confirming his letter of offer, accept that she should recover such an allowance in these proceedings. He still insisted on a third party occupier paying rent as a matter he said of principle. He was not thinking of her family - contrary to the way a third party rent was contended for in his July statement. Discussion Mr Francis QC in his opening note submitted that the matter of income needs has already been determined in the African court which, he suggested, must be taken to know more about the cost of living in in that jurisdiction. That, it seems to me, is a variant of the proposition advanced intermittently on behalf of the father that I should approach this case in the round by making an order of the kind that might have been made in Africa, perhaps with the added hypothetical that the African court exercised a like jurisdiction. Although the point was not expressly pursued at the hearing and in particular in Mr Francis QC's closing submissions, I note that the father's offer is carefully couched in terms seeking to make it ancillary and consequential to the African order. That echoes directly the formulation of Judge M in April 2012. I regard that as wrong in law and unsatisfactory in likely practice with potential for conflict and misunderstanding. I have taken my task to be to make an order within this jurisdiction and fully within the terms of schedule 1 of the 1989 Act to take effect in substitution for the African proceedings. I envisage an order making the position clear by declaration on its face. 81. I do not doubt that I must have regard to the purchasing power of the African LC and the proposition the mother will find herself in a prosperous African suburb rather than Hampstead, London or the expensive dormitory suburbs which father has now targeted for his future home - so long as he is with XFC at least. But I reject the invitation to think myself into the notional position of an African judge exercising a jurisdiction under a different statute and according to different norms, procedure and case law, none of which were put before me. 82. The proposition that I should do so is, of course, the flipside of the argument that failed in Dart [1996] 2 FLR 286 where the wife was unsuccessful at first instance and in the Court of Appeal in pointing to the fact that in Michigan - the real seat of the parties' marriage save for its very end - she would have received - pre White - a sum larger by a considerable multiple than in this jurisdiction in the then prevailing application of the reasonable needs cap. Mr Cayford QC refers me to Moor J's application of the fundamental rule that an English Court will decide on domestic principles in the recent case of Z v Z (No 2) [2012] 1 FLR 1100 @ 1108 and the general rule from which it is derived as set out in Dicey, Morris and Collins, Conflict of Laws 14 th edition vol 2 rule 91 (7). I am clear that the several references made direct by Mr TW and incorporated in Mr Francis' submissions to what he has spent in support of his mother by monthly support, housing provision and fitting out are not strictly relevant comparators. They tell me what can be provided at a modest level and stand as no more than a further reminder that African relative costs especially for housing lie in a different range. But I am enjoined by statute and authority to have general regard, albeit not exclusively and not to replicate, to the father's general standards and resources and not those of his mother. Considerable research and industry was also applied to put before me and to analyse and introduce on the one hand and attempt to refute on the other broad studies of income distribution in this modern African country. The father's legal advisers commissioned work from Mr TT, a senior economist in a prominent consultancy, who has since died. He analysed data on household income and expenditure collated by the African statistical service based on information collected in 2005 – 2006 breaking down the population into five bands or quintiles. It is suggested that this establishes that the maintenance figure of 15,000 LC per month proposed by the mother would put her in the top 1% of households. Mr EM, accountant and not academic or economist, vigorously responded by pointing out that the series was (a) out of date and (b) derived from the African country's Department of Statistics a unit he described as a notoriously unreliable official source: that I cannot judge precisely though I do note that the figures are fed into the government's obligation to upgrade outgoings such as pay and pensions in some degree so that there is plausibility to the suggestion that a moderate reading would be acceptable. Though headed as a 2008 table, the data series, he pointed out was collated in 2005-6 and now out of date. Mr EM for his part introduced what he said were other more up to date and reliable sources to construct a suggested table of expenditure for an affluent but not top tier household which is appended to the outline statement he brought to court. It totals LC 180,812. Mr Francis QC, in an impressive demonstration of forensic skill, engaged in a productive and intelligent dialogue with Mr EM who with equally engaging candour conceded that some of the inputs in his table, for example tax and housing costs which appeared to relate to capital acquisition and repayment costs, did not apply to the scenario before us. The exercise led Mr EM to reduce his headline figure by LC 97,651 to LC 83,161 per month (£5,950) or c1m LC (£71,280) pa. In what the authorities prescribe as a broad brush exercise, I have been materially assisted by, to repeat the phrase, the broad brush sociological survey exercised conducted by Mr EM as forensically scrutinised by Mr Francis. It has helped define the landscape and context in which any order will take effect. But Mr Francis QC in closing submissions adeptly constructed an argument based on adoption of Mr EM's figures as adjusted in that discussion which, he said, provided a baseline which I should follow but with a further major adjustment. Ms PG belonged, he submitted, in a further refined lower category of the emerging affluent or upper middle class, not in Mr EM's higher bracket of the affluent whose membership on Mr EM's data were the top 97,000 families in the African country. Adjusting tables for her smaller 2 person household from the statistical norm of 3.3 produced, he calculated, in the lower band £46,800 per annum LC equivalent. Alternatively, one further step down the income distribution pyramid to upper middle took the new net to £42,000 and after adjustment for a family size of two rather than 3.3 to £30,000. That suggested, he said, that the father, who pitched his offer to produce an income of £40,000 made up of £36,000 plus her earnings, had got it right. I am not persuaded by this further application of survey data whose true impetus, I consider, was to achieve a serendipitous re-alignment of the EM-modified table with his own offer. Mr Cayford QC robustly submitted an approach that combined Mr EM's budget and a benchmark figure he identified as emerging from the reported cases of wealthy fathers in this jurisdiction. I pointed out that the internationally accepted comparative Cost of Living table published by the Economist and summarised in At a Glance places the African country's CoL costs at 74% of the UK figure. So his suggested Order of £9,000 a month as in the open offer UK equivalent or £108,000 a year becomes 108,000/.74=£146,000 Findings and Orders I adopt the sequence suggested in Re P although given lower African housing costs and the relatively narrow gap between the parties, targeting an appropriate property does not readily define the level of other financial support. Housing: The father has suggested as recently as his July statement that it is appropriate for her to continue to live with her family and she does now. Alternatively, if she moves they will move with her, a forecast advanced as his justification for imposing an occupation rent in his letter of offer. I entirely reject that approach. I have no evidence that I can begin to accept that it is the norm for aspirational families in the African country to live communally with their older generation or that it makes a reasonable comparison with the father's circumstances to deprive her of an independent home for herself and her child for the period within my jurisdiction. That approach, happily, was abandoned by the father's September open offer and not revived in the hearing before me. Purchase Price Despite the third and last pair of Internet property particulars brought in on behalf of the father on the penultimate day of the hearing in the range 2.3 million -- 2.8 5 million LC as I note above, in his closing written submissions Mr Francis QC reverted to the 2.1 million LC or £150,000 figure adopted earlier in the week. In my judgement, the mother's suggested price bracket with which the case was opened and closed and upon the basis of which she described the location, quality and security of property in which she wished to live is reasonable and appropriate. The figure of 4,200,000 LC or £300,000 is a £95,000 step down from her offer letter and represents, I consider, a serious attempt at compromise which ought to have been accepted. It is the figure I order. I have no information on African legal and other purchase costs so that the appropriate course is to order that these be met by the father direct. Mr Francis QC's suggestion that housing should be provided by way of settlement order is accepted by Mr Cayford QC and follows the guidance of Ward J in A v A (above) endorsed by Thorpe LJ in Re P at [45]. There is no reasoned basis for the limitation in the father's offer to age 18. Mr Francis QC rightly made no attempt to justify the 18 year cap in closing submissions These are responsible parents who both want the best for their daughter described as bright and responsive by her mother. The modern world will continue to offer significantly smaller chances for those who do not develop and enhance their skills. The appropriate Order is to end of tertiary education with liberty to apply. Budget Both Counsel have engaged in the ritualised budget skirmishing between generosity and parsimony discussed by Thorpe LJ and Bodey J in Re P . Steering a broad course with some assistance from Mr EM as modified in cross-examination, in my judgement the appropriate figure is 67,500 LC per month (£4,821) 810,000 LC pa (£57,850), index linked and stepped between mother and daughter when she reaches University. Both Counsel have entirely appropriately, I consider, addressed me on the total budget figure for expenditure within the mother's household. Neither have submitted a suggested quantification of a carer's allowance within that figure. The concept of a carer's allowance has its origin or is at least sanctioned by the decision in Haroutunian v Jennings (1980) 1 FLR 62. It is reported as decided in the family division by Sir George Baker P Balcombe J. But it came before the court by way of case stated from the justices under the Affiliation Act 1957 as amended. The device of a carer's allowance enabled a mother to obtain a more realistic sum than had hitherto been the practice in the restrictive application of the Magistrates' Court jurisdiction. The 1989 Act enacted a wholesale reform in the footsteps of a similarly wide reform of matrimonial law 2 decades before. In Re P , Thorpe LJ astutely observed that a carer's allowance was perhaps the most emotive element in the periodical payments assessment. The Court also observed that the analogy of the Fatal Accidents Act suggested by Balcombe J was restrictive and not to be followed. So here, Mr TW told me that he objected to the concept although I do not think that he fully grasped the subtlety of its application. The reality is a single household and my task is to fix an appropriate level of support within it sufficient to reflect in some degree the father's circumstances without a profit element for mother. I respectfully suggest that the concept of a carer's allowance is past its utility. Mr Francis QC helpfully concedes he has no problem with carers allowance and pps being, in his phrase, lumped together as a single amount. I agree and record only that my figure acknowledges and takes into account the mother's modest income and the need for back up child care and housekeeping to enable her to work without anxiety during the day, through inevitable childhood illnesses and school holidays. Private medical care for Z should also be provided which is not, as I understand it, contentious. Education Private day education is now a shared objective. Mr TW wishes to have a voice in the choice of school. Ms PG does not object. I have urged the parties to agree a suitable formula and even nomination of the school on the basis of an agreed enquiry whether full time school starts January 2013 or 2014. I do not yet know the outcome of any discussion but I assume appropriate drafting will now follow. Fitting Out Navigating once more between the wholly unrealistic figure of £15,000 advanced by Mr TW by reference to the objectively irrelevant sums spent on his mother and the overenthusiastic EM schedule, my figure is £50,000 sterling equivalent or 700,000 LC . Car In his oral evidence, Mr TW prudently distanced himself from his offer of a bottom of the range one year old saloon car such as a Ford Fiesta or Toyota Yaris . His pride in his own collection of expensive and desirable cars did not, as he recognised, place him in any strong position to qualify let alone criticise the mother's choice. In his opening note, Mr Cayford QC suggests an initial purchase of a BMW series 1 at £25,000 equivalent and a rolling trade in/renewal at 3 yearly intervals requiring £87,500 to age 21 – which I take for this purpose to equate to end tertiary education - as commended in by Thorpe LJ in Re P at [46]. His proposal has the practical advantage of eliminating recurrent negotiation and I adopt it. Costs Mr Cayford QC told me in opening that mother's all in costs stood at £487,000 with no VAT payable. Allowing for costs already ordered, £175,000 (£174,988) was outstanding for her London costs. £135,410 was due and owing to her African lawyers for their services and that of Mr EM including his London attendance before me. African litigation costs: These are recoverable if at all as a debt and not by the process of English rules and taxation. Paragraph 5(1) of the Schedule provides jurisdiction to order payment of a lump sum to meet any liability or expense reasonably incurred before the making of the Order. Her African costs exist as a debt owed by a mother with no resources whatsoever. Without provision, she is exposed to recovery which might bankrupt her. In Hill v Morgan the judge's provision for debt made on the welfare basis notwithstanding his apparent conclusion that she was in part responsible for her own difficult situation was reduced but not eliminated on appeal. Nor is there given the property values in contention any margin properly to adjust the housing provision if I thought that the mother had conducted that litigation unreasonably. Mr Francis QC raised a preliminary point that the African costs of about £70,000 are irrecoverable under African domestic law. They are, he suggested contrary to the local statute prohibiting contingent fees in family or allied matters. The submission on a little examination proved without merit. Although his letter of engagement by Mr HS, the mother's African attorney, could have been more happily worded, Mr EM assured me he charged out on a time basis without reference to result. Nor did he pitch his hourly rate to allow for the possibility of a bad debt. The letter was understood by him to advise that there was a risk of default in payment, no more. I have no hesitation in accepting Mr EM's explanation. A jotted memorandum from Mr HS shown to mother was on pre-printed paper used for accident work and the like in which reference to contingent recovery was crossed out. That I find is clear evidence that the engagement was not on the illegal basis. Mr Francis' third suggestion that I should scrutinise the referral arrangements between the London lawyers and Mr HS was shot down with impeccable integrity by a direct intervention by Mr Martin, his own solicitor, from the front row. The 10% introduction fee he told me ate into Mr Brookman's profit costs without being passed on to the lay client. From the perspective of a London judge, I do not find any substance in the suggestion that the African litigation was unreasonably conducted in financial terms, although service on the father in the middle of a football fixture was unfortunate in method. Ms PG faced the formidable resources of a wealthy father who as late as December 2011, no doubt on advice, declined to put his financial profile even in outline before the African judge. Faced with the want of direct jurisdiction to provide capital, Ms PG was advised by one set of lawyers to apply indirectly by way of breach of promise and by another that was a long shot too far. Given the scale of her needs and without more information on the state of the local law I cannot conclude that crossed the line to the unreasonable. Mr HS on her behalf realised that an application in this jurisdiction required the careful assembly of professionally assistance. He set about his task methodically. I have not followed Mr EM's figures in total but neither Mr Francis QC nor I have rejected his methodology. That was an expense properly incurred to meet her need for an Order. 124. The December 2011 proceedings in which the father notwithstanding the by then well established claim in this Court was pursued by Mr TW's African team in what from English perspective I can only describe as tactical opportunism. With due respect to Judge M, he gave noticeably little regard to the stage the London litigation had reached. It is telling that he produced a result which did not lead to Theis J to resile from exercising jurisdiction in an important decision which although interlocutory was a critical step in enabling the mother to bring her full claim before the Court. Mr Francis QC did not invite me to hold back from exercising my Schedule 1 jurisdiction. To the contrary, he invited me to make Orders of a scale and extent wholly out with the contemplation or exercise African jurisdiction. In my judgment all the African litigation debt requires to be met by Mr TW with one qualification: it is agreed that if allowed he may act in place of the mother by subrogation in any taxation on the indemnity basis still outstanding in Africa to challenge specific items as he may be advised and at his own expense. London Litigation Costs The 2010 FPR modification of CPR 1998 44.3 does not apply. While Mr Francis's preferred position was no order for costs, his substantive argument was for costs against the father to be on the standard rather than indemnity basis. The essential difference from the mother's perspective, is that she is exposed to recovery for the difference between standard costs and those actually incurred but in reality has no exposure to any sum above assessed cost on the indemnity basis. Mr Francis QC submits that I have been dealing with an extravagant claim unreasonably pursued. He points to the initial high bid for housing provision and the continuing high level of the claim for fitting out and budget. There is some force in Mr Francis' submission, which adopts a theme repeated in correspondence and statements from the outset on the father's behalf. But even if it was, that is only one factor in my discretion. Mr Francis' point is substantially dissipated by the failure of his client to put forward any reasonable counter offer at any stage or any offer at all until a late stage. In the retrospective view of the end of the case, the conduct of the litigation by the father has been a steady abandonment of one defensive position after another. The African proceedings were erected as a barrier until a late stage as I have described. Resistance was announced on grounds never advanced to the conversion of the mother's application to bring it into line with the change in the governing law. It is hard to conceive what basis might have existed. Mr TW's statement was unhelpfully late and took objection to the carer's allowance, the entitlement to be housed away from her family and even queried private education for his daughter. His disclosure was only brought up to an acceptable standard at the hearing itself. His offer, sent only days before the hearing, was not only as I have found manifestly too low under all heads. It contained three restrictive provisions that not only lacked imaginative generosity but made litigation at that late stage inevitable. I refer to the cap on housing to 18, the claim to an occupation rent and, small but significant, the offer of a car at the bottom of the saloon range precisely defined as one year old. In my judgment, these factors cumulatively justify an indemnity costs order. I give leave to report the judgment of Theis J suitably anonymised. Security Mr Cayford QC invites me to order security against a potentially overseas payer and prays in aid the strenuous opposition the mother has faced in two jurisdictions. The father may at the end of his English career be a manager in a foreign jurisdiction or, if back in Africa, resort again to the local Court. Mr Francis QC describes the claim as a spurious and disguised claim for the mother's holy grail – capital. Between these strenuously opposed submissions there lies to my mind a third concern. The father in his letter of offer makes it clear that he regards these proceedings as ancillary to the African proceedings in which judgment was delivered in April 2012. I regard the co-existence of these claims as unsatisfactory. The Orders I have set out should, in my judgment, take over and replace the African proceedings which should be discharged by a consent dismissal. If that step is taken, the force of Mr Cayford's application for security is abated. If Mr TW declines to do so I would be inclined to order security whether on a commuted amortised basis as Mr Cayford suggests or otherwise appropriate to be determined in a short supplementary hearing before me. Pending that clarification, the application for security is adjourned. 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