BSA v NVT

Factual and Procedural Background

The Appellant father and Respondent mother have two minor children who reside with the mother in the former family home, while the father lives abroad. In 2018, the mother initiated proceedings under Schedule 1 to the Children Act 1989, which concluded with a consent order in December 2018 approved by DDJ O'Leary following a Financial Dispute Resolution (FDR) hearing. The order included an agreement for the father to provide a housing fund of £2.75 million for the purchase of a new home for the mother and children, along with provisions for periodical payments, capital sums, and costs. A subsequent order in February 2019 detailed the implementation mechanics after the father sought specialist tax advice.

The father failed to provide the housing fund, prompting the mother to apply for enforcement in July 2019. The father then initiated section 8 Children Act proceedings, leading to consolidation of both matters. The mother applied for legal costs assistance and a variation of periodical payments in September 2019. The father failed to provide financial disclosure as ordered, resulting in a judgment summons application and a hearing before HHJ Oliver in October 2019, who ordered financial disclosure, endorsed the December 2018 order with a penal notice, granted a costs allowance to the mother, and scheduled a further hearing.

The father appealed the judge's order, obtaining a stay pending permission to appeal. Subsequent procedural steps included refusals of permission to appeal, multiple adjournments, applications to admit further evidence and amend grounds of appeal, and requests for disclosure regarding the mother's legal funding. The hearing of these applications was eventually listed before the presiding judge, who also considered the substantive appeal.

Legal Issues Presented

1. Whether enforcement or committal proceedings were properly allowed for breaches of agreements incorporated as recitals rather than explicit terms of the court order.
2. Whether the agreements allegedly breached fell outside the scope of permissible orders under Schedule 1 of the Children Act 1989, thus affecting enforceability.
3. Whether the costs allowance order was rightly made, considering alleged inequality of arms, adequacy of financial disclosure by the mother, attempts to secure alternative funding, and prior offers by the father to advance funds for legal costs.
4. Whether permission should be granted to admit fresh evidence and amend the Grounds of Appeal based on alleged non-disclosure and other matters.

Arguments of the Parties

Appellant's Arguments

• The judge erred in allowing enforcement or committal for breaches of agreements that were recitals and not enforceable court orders, contending these were contractual and not subject to family court enforcement.
• The breached agreements extended beyond what the court could order under Schedule 1 proceedings, rendering enforcement impermissible.
• The costs allowance order was made without proper consideration of inequality of arms, given the mother's alleged receipt of substantial weekly payments, lump sums, and asset sales not accounted for.
• The mother failed to provide full and frank financial disclosure supporting her claim to poverty, undermining the basis for the costs allowance order.
• The mother did not genuinely attempt to obtain litigation funding, as prior lender refusals negated the genuineness of her applications.
• The father had offered to advance funds for the mother’s legal costs, negating the need for a costs allowance order.
• The father sought to admit fresh evidence alleging the mother’s non-disclosure of financial resources and substance misuse, and to amend grounds of appeal accordingly.

Respondent's Arguments

• All relevant financial information was available to the father if reasonable diligence had been exercised; no prior disclosure applications were made.
• The mother’s statement regarding account balances was not untruthful but contained minor errors not material to the costs allowance decision.
• The mother’s payments to solicitors were consistent with her financial position and did not contradict her inability to meet full legal costs.
• The apparent loan from the mother’s partner was properly disclosed, and the transactions interpreted by the father as deceit were explained by bank statement errors.
• The mother had commenced a business but derived no income from it, remaining financially dependent on the father.
• Evidence of the mother’s substance misuse was irrelevant to the costs allowance application and was a live issue in separate child arrangements proceedings.
• The mother’s attempts to obtain litigation funding were genuine, and the judge was entitled to accept her evidence on this point.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DN-v-UD [2020] EWHC (Fam) 627	Long lease arrangements are not orders the court can make.	Relied upon to assess the enforceability of the February 2019 order providing for a long lease mechanism.
Royal Bank of Scotland v Carlyle [2015] UKSC 13	Grounds for appellate intervention include conclusions on facts not open on evidence.	Referenced for appellate standards regarding factual conclusions.
B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602	Appellate court may intervene if judge gives undue or insufficient weight to matters.	Used to frame the standard of review for the judge’s discretion.
Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136	Procedural irregularity and unfairness may render a decision unjust.	Considered in assessing procedural fairness of the proceedings.
G v G (Minors: Custody Appeal) [1985] FLR 894	Discretion must be exercised within reasonable parameters.	Referenced regarding the exercise of judicial discretion.
Re F (Children) [2016] EWCA Civ 546	Approach to appeals: sufficiency of reasons and substance over semantics.	Guided the court’s approach to reviewing the lower court’s judgment.
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal.	Applied in deciding whether to admit additional evidence and disclosure.
Sharland v Sharland [2015] UKSC 60	Court’s power to set aside orders based on non-disclosure.	Invoked to consider the possibility of setting aside the costs allowance order.
H v H (Financial Provision) [1993] 2 FLR 35	Recitals can be enforced as if part of the court order.	Supported the enforceability of recitals in the December 2018 consent order.
Atkinson and another v Castan and another (1991) The Times, April 17	Recitals in court orders have enforceable status.	Used to support the legal effect of recitals in family court orders.
Piglowska v Piglowski [1999] 1 WLR 1360	Appellate review should focus on substance, not narrow textual analysis.	Guided the appellate court’s approach to interpreting the lower court’s judgment.
Gillingham v Gillingham [2001] EWCA Civ 906	Confirmed continuing relevance of Ladd v Marshall criteria.	Referenced in relation to the admission of fresh evidence.

Court's Reasoning and Analysis

The court carefully examined the nature of the December 2018 consent order and the subsequent February 2019 order, focusing on the enforceability of the agreements contained therein. It found that the December 2018 order, including its recitals, was intended to be legally enforceable and that the penal notice attached to it was appropriate. The court rejected the father's argument that the recitals were merely contractual and unenforceable by committal, citing authority that recitals incorporated into court orders may be enforced as if they were orders themselves.

The court distinguished the February 2019 order (which involved a long lease mechanism) from the December 2018 order and noted that the penal notice was attached only to the latter. Consequently, the father’s challenge to enforcement based on the February 2019 order was not persuasive in this appeal.

Regarding the costs allowance order, the court found that the judge applied the correct legal test and had sufficient evidence of the mother’s financial need, especially given the father’s failure to provide financial disclosure. The court accepted that the mother had made genuine attempts to secure funding and that the father’s offer to advance funds was not intended to cover the mother’s legal costs in the relevant proceedings.

On the applications to admit fresh evidence and amend the grounds of appeal, the court applied the Ladd v Marshall criteria and found that the evidence was either available with reasonable diligence or would not have an important influence on the outcome. The court also held that evidence relating to the mother’s alleged substance misuse was irrelevant to the costs allowance application and that the appeal should not be used to revisit interlocutory orders based on subsequent developments.

Overall, the court concluded that the father had not demonstrated a realistic prospect of success or any compelling reason to grant permission to appeal and dismissed all related applications.

Holding and Implications

The court REFUSED PERMISSION TO APPEAL and dismissed all associated applications, including those to admit fresh evidence, amend the grounds of appeal, and compel disclosure of the mother's legal funding. The stay on the enforcement order was lifted.

The direct effect is that the December 2018 consent order, including its recitals and penal notice, remains enforceable by the family court. The costs allowance order in favor of the mother stands, reflecting the court’s recognition of her financial need and the father's failure to comply with disclosure obligations. No new legal precedent was established; the decision reaffirms established principles on enforcement of consent orders, costs allowances, and appellate review standards.

The court also ordered the father to pay the mother’s costs of the appeal and associated applications, summarily assessed at £25,500 payable within 14 days, reflecting the procedural complexities and non-compliance by the father.