Family Law

Family analysis: In Re C (A Child) (Schedule 1 Children Act Variation) [2018] Lexis Citation 63, [2018] All ER (D) 32 (Aug) the Family Court examined the power of a court to vary or revoke an order for the settlement of property that had already been made. Charlotte Sanders, associate at Stewarts, discusses the outcome of the case.

What are the practical implications of this case?

The issues raised by this appeal were:

• Can a court vary or revoke an order for a settlement of property order that has already been made?; if so
• Whether and how should the court exercise its discretion to do so?

The court held that it had a power, pursuant to s 31(F)(6) of the Matrimonial and Family Proceedings Act 1984, which is given procedural effect by r 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955), to vary or revoke an order of the court. The court considered the authorities on the issue, which confirm that the power ‘is not unbounded’ (CS v ACS (Consent Order: Non-Disclosure: Correct Procedure) [2015] EWHC 1005 (Fam), [2016] 1 FLR 131)) and that there should be a ‘principled curtailment of an otherwise apparently open discretion’ to factor in considerations of finality, the undesirability of allowing litigations to have two bites of the cherry and the need to avoid undermining the concept of appeal (Tibbles v SIG plc (Trading as Asphaltic Roofing Supplies) [2012] All ER (D) 134 (Apr), [2012] EWCA Civ 518). Tibbles set down firm guidance that the primary circumstances in which the discretion may be exercised are as follows (albeit clarified that it would be dangerous to treat these primary circumstances as though they were a statute):

• where there has been a material change of circumstances since the order was made
• where the facts on which the original decision was made were (innocently or otherwise) misstated

The principle that a final order can be varied was also confirmed in Karim v Musa [2012] All ER (D) 379 (Jul), [2012] EWCA Civ 1332, and the Supreme Court cases of Sharland v Sharland [2016] 1 All ER 671, [2015] UKSC 60 and Gohil v Gohil [2016] 1 All ER 685, [2015] UKSC 61 in cases where there had been material non-disclosure.

Having established the jurisdiction, the court considered whether and on what basis an order should be revoked or varied.

The court in this case discharged the maintenance element of the original order and varied the settlement of a property element based on a significant change in circumstances, namely that the parent the child lived with had changed to the father from the mother.

It is interesting to see the court varying an order for a settlement of property under Schedule 1 of the Children Act 1989 (ChA 1989), despite the fact that this is not expressly variable under ChA 1989, Sch 1 (whereas periodical payments are expressly variable). A further point of interest is that despite the original order being varied, the court still provided for a settlement of property in which the mother could live (and the child when he was with her) during the child’s minority, despite the fact that the child did not live with the mother and only spent time with her.