Parents' agreement must be in child's best interests to be upheld
06 March 2017
In this case, a provision prohibiting a child's future relocation during her primary school years was ruled to be irreconcilable with the child's best interests so, disapplying the general principle established in the case of Xydhias, the judge amended the wording of the draft order.
This case involved a financial application brought by a mother, under Schedule 1 of the Children Act 1989, which had been settled at a roundtable meeting attended by the parents and their very experienced lawyers, resulting in signed Heads of Agreement ("HoA").
Under the general principle established in the case of Xydhias v Xydhias , ordinarily HoA signed by the parties, or a clear exchange of solicitors' letters setting out the terms of an agreement, will establish a consensus to which the parties should be bound.
The unmarried parents had a relationship from 2013 until 2015. They had one daughter, L, born in June 2014, who was 2 ½ at the time of proceedings. The mother ("M") then aged 40 was a Swedish national, living in Chelsea, who had been employed as an airline pilot by BA since 2001, flying long haul since 2007. She had continued to work part-time since L's birth, out of Heathrow, and was required to work away overnight and for days at a time. She had an income of about £35,000 per annum and savings of about £76,000.
The father ("F") then aged 38 was a very wealthy US national, of Swedish origin, based in Switzerland, where he rented two properties. He did not work, being the sole beneficiary of two very substantial trusts, from which he had received net annual income of about £2.75 million in 2015. M claimed that F and his siblings had also received a substantial inheritance from their late father, in the region of £350 million.
There was also another trust, established by F's late brother, who had recently died, for the benefit of his nephews and nieces, including L. F enjoyed an international jet-set lifestyle and spent much of his time sailing competitively. He was described by M's leading counsel as a "scion of one of the best-known and wealthiest families in Sweden." Consequently, F raised the "millionaire's defence" to M's financial claim on behalf of L (accepting that he could meet any order that the Court might make), which meant that he provided minimal financial disclosure.
The parents had signed Heads of Agreement at a roundtable meeting in December 2016, involving F paying: a housing fund of 2.1 million, which would revert to F; £50,000 kitting out fund; £50,000 for a car (every four years); carer's allowance and child maintenance of £160,000 per year CPI linked (£87,000 general, £73,000 to cover nannies); nursery and school fees; private health cover; and some historic legal fees.
A clause in the draft order, following the HoA, prevented M from obtaining a replacement property outside England & Wales, in any circumstances, before L had completed her primary education (originally F had wanted to prevent such a move until L had completed full-time tertiary education). F pressed for such a restriction, believing that it would guarantee L stability until she was 11. M submitted that the restriction was inappropriate in principle and that the court should not insert a term which removed all discretion from the court, when making any future decisions about L's welfare. M stated that she might well need to change her employment and move home to a different jurisdiction at some time in the future.
Accordingly that issue and some other issues concerning the drafting of the order were listed for hearing for determination by a High Court Judge, Mr Justice Hayden.
Mr Justice Hayden held that where a court determines that an agreement between the parties is irreconcilable with the best interests of the subject child, then Xydhias principles should be disapplied.
The judge referred to M's Swedish nationality and that her entire extended family and hence her primary support network were based in Sweden. Moreover, the nature of M's employment meant that there was a distinct possibility that she would need to relocate, whereas F had no real connection with the UK. He also held that F had conflated the laudable aims of stability and security for L, with the need for a settled address in the UK, when the two concepts were very different.
Accordingly, he amended the wording of the order to provide that M could not relocate to another jurisdiction with L without F's agreement, or the permission of the court; also that, in the event of such a move, the court would have jurisdiction to review the housing and maintenance provisions in the order. He also included wording, requested by F, recording that M had no present intention of seeking a further lump sum, words which would have no legal effect but which were important to F and helpful to the parents in achieving a settlement.
G v S  EWHC 365 (Fam) Mr Justice Hayden
Maeve O'Higgins Family Law Partner, Burlingtons Legal |
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