16 June 2025

When Child Maintenance Crosses Borders : CA v UK

In CA v UK [2025] EWFC 117 (B), His Honour Judge Watkins delivered a sharp, thoughtful decision on an increasingly familiar scenario: how and where to resolve international child maintenance disputes when parents, assets, and court orders span multiple continents. At the heart of this case was an issue that’s rarely litigated but often debated: can a parent apply under Schedule 1 of the Children Act 1989 to make an order against themselves?

Spoiler: no—but not for the obvious reasons.

The Background: From New York to Nottingham via California

The mother and father, both British nationals, divorced in New York. That court ordered the father to pay around £3,800 per month in child support. The mother and children later relocated to the UK, where the children became habitually resident. Meanwhile, the father moved to California.

This geographic triangle gave rise to a jurisdictional dilemma:

  • The mother initiated enforcement proceedings in New York, which eventually ceded jurisdiction.
  • The father then applied under Schedule 1 in England, not to resist maintenance, but (unusually) to formalise an English-based child support order—presumably to simplify the arrangements and reflect his current earnings.

The mother objected, arguing that:

  1. California was the more appropriate forum, especially as she had now registered the New York order there.
  2. The father's Schedule 1 application was procedurally flawed, since a parent cannot, under the plain wording of the statute, apply for an order against themselves.

Key Legal Issues and What the Court Decided

  1. Forum Conveniens

Following Spiliada Maritime v Cansulex, the judge asked: is there another more appropriate forum for resolving this dispute?

Yes—California.

  • The father’s income was generated there.
  • Child maintenance calculations in California are formulaic and tailored to local tax structures.
  • Proceedings were already underway there.
  • Any English order would still require registration and enforcement in California, with associated risk and delay.
  • Multiple proceedings across jurisdictions risked fragmented and inefficient litigation.

The court therefore stayed the father's Schedule 1 application.

  1. Can You Apply Against Yourself under Schedule 1?

The father’s application sought an order requiring himself to pay child maintenance—presumably into the UK court framework. This was procedurally innovative, perhaps even well-meaning, but ultimately misconceived.

Judge Watkins concluded that Schedule 1 does not permit a parent to apply for an order against themselves. The statutory language is clear: an order must be made to the applicant, or directly to the child. Legal gymnastics were suggested to get around this—such as the court making an order to the mother or the children—but the judge rejected these as inconsistent with the legislation.

This rare ruling may close the door on a growing workaround sometimes used in cross-border support cases.

Why This Matters for Practitioners

  • International enforcement is not just a technicality. Even cooperative parties may face difficulties when orders must be enforced abroad, particularly when defaulting parties live in the US or elsewhere.
  • Schedule 1 has limits. The statute wasn’t designed for mutual applications or administrative regularisation. Lawyers should resist the temptation to stretch its wording for convenience.
  • The child's habitual residence is important—but not always determinative. Even where children live in England, enforcement and variation of child support may best be resolved where the paying parent resides.
  • Think strategically about forum. Enforcement, taxation, and evidence all favour the payer’s jurisdiction in some cases, especially where courts apply fixed child support guidelines, as in California.

Final Thought

CA v UK offers more than a tidy lesson in forum conveniens—it’s a reminder that statutory frameworks must be respected, even in creative international family law scenarios. As cross-border parenting becomes increasingly common, clarity about what the English courts can—and cannot—do under Schedule 1 becomes all the more important.

For practitioners handling international cases, the takeaway is clear: pick your forum wisely, and don’t ask the court to order what it has no power to give—even if it sounds fair.

14 May 2025

Tying Up Loose Ends: THR v WAT and the Realities of High-Net-Worth Divorce

In THR v WAT [2025] EWHC 1125 (Fam), His Honour Judge Hess was faced with the unenviable task of transforming a multi-million-pound Xydhias agreement into a final financial remedy order—navigating disputed terms, hidden costs, forgotten interest, and inflated child maintenance schedules. The judgment offers practitioners a rare insight into the pitfalls of rushed settlements and the court’s insistence that “a deal is a deal”—even if you think you left something out.

The Context: A Quick Settlement in a Heavyweight Case

This was a “big money” case with substantial assets on both sides. The parties had six bundles of documents and a 10-day final hearing listed, but they reached an agreement on day one—what both sides called a binding Xydhias agreement. The problem? Not everything was spelled out clearly.

Over the next few days, the drafting revealed five points of contention:

  1. Whether a company loan should reduce the wife's lump sum.
  2. Whether estimated legal fees should be adjusted post-settlement.
  3. Whether the lump sums should attract interest.
  4. Whether the wife should receive additional security.
  5. What level of child periodical payments (CMS top-up) the husband should pay.

Xydhias Means Finality, Not Flexibility

The husband had agreed to pay the wife £36 million, less “what she already had”—a sum which his own documents put at £2.09 million. But he later argued this was a mistake, particularly because it didn’t reflect the (supposed) value of the wife’s interest in a company called X Ltd or her reduced legal fees.

The court disagreed.

Judge Hess reminded both parties that once they reached a Xydhias agreement, the court’s role was not to re-write the deal unless there had been fraud or clear mistake. The husband, having made a firm offer based on £2.09 million, was held to it. His Honour was clear:

“There was time to raise this if it was important... a deal is a deal.”

No Interest Means... No Interest

The wife’s team attempted to insert a clause for interest on the deferred lump sums—months after the deal was struck. Judge Hess ruled this was an afterthought, not part of the agreed terms. Despite being asked to add 3.75% interest on unpaid instalments, he refused:

“If the wife’s team wanted those to be an essential part of the deal, there was plenty of time... They did not.”

Security Provisions: Reasonable, Not Total

The husband offered partial security against the lump sums, which the wife wanted increased to 100%. The judge declined, noting the husband had already paid £5 million early and was not shown to be a flight risk or unwilling to comply. The court endorsed the principle that perfect security is not always necessary where trustworthiness is evident.

Top-Up Maintenance in the HNW World

Both parties agreed the case warranted a CMS top-up order under section 8(6) of the Child Support Act 1991. But the figures were miles apart:

  • Wife’s position: £50,000 per child, per annum (£150,000 total).
  • Husband’s position: £20,000 per child, per annum (£60,000 total).

Judge Hess landed in the middle at £25,000 per child—totalling £75,000 per year—and made some trenchant comments about the inflated and unrealistic budget put forward by the wife. Among the claims: £120,000 on holidays, £6,000 for children’s computers, and £2,000 on Christmas gifts.

We are dealing with children aged six, six, and three... the needs of children must be finite whatever the payer’s income.”

This aligns with the James v Seymour approach—where top-up maintenance is assessed from first principles (s.25 MCA 1973) rather than simply applying a cap or CMS formula.

Key Lessons for Practitioners

  • Don’t leave “loose ends” in a Xydhias deal—spell out issues like interest, security, and assumptions about asset values at the time of agreement.
  • Final means final—the court won’t revisit a deal just because one side gets buyer’s remorse.
  • Avoid “aspirational” budgets—top-up child maintenance claims must be grounded in actual need, even in ultra-wealthy families.
  • Security must be proportionate—perfect cover isn’t always required if the payer has a history of compliance.

Final Word

THR v WAT is a textbook example of the messiness that can follow an expensive, high-stakes settlement reached too quickly. For those dealing with big numbers and complex structures, it’s a reminder: if you want clarity, earn it at the drafting table—not by asking the court to fix what you forgot to ask for.

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