Can a Schedule 1 Children Act Application be Barred by Reason of the Issue Having Been Covered in the Earlier Financial Remedy Final Order?

I recently had a hybrid Child Arrangements Order, Specific Issue Order (Schools) and Schedule 1 Children Act case where the Husband/Father argued that because the Financial Remedy final order had referred to the issue of school fees in the preamble, recording that the Wife would endeavour to pay half and that the parties would review affordability every 12 months, the Court could not now consider a later Schedule 1 Children Act application seeking an order for payment of school fees by the Wife/Mother.

My gut reaction was that H’s argument was obviously wrong:  Because it’s about children of course you can always make a Schedule 1 application, can’t you?   But, it turns out it’s not quite as straight forward as that; almost, but not quite and, there is some rather tortuous case law on the subject:

MB v KB [2007] EWHC 789

PK v BC [2012] EWHC 1382, [2012] 2 FLR 1426

MG v FG [2016] EWHC 1964

In short, the point made by the husband would only have some relevance if there had been a determination or order in respect of school fees, which there had not.  As above, the only provision relating to school fees in the financial remedy order was in the preamble, recording the wife endeavouring to pay half and the parties agreeing to review the situation.  If there had been a specific order determining the issue then, there is some authority for the idea that a Schedule 1 application on the same issue might have to overcome an extra hurdle of showing the case to be “exceptional”.  There is nothing in Schedule 1 to that effect but that might be what the case law is saying:

(i)      MB v KB establishes the jurisdiction to entertain a Schedule 1 application following concluded financial proceedings and, MG v FG says as much [para 26].

(ii)     It is the ratio of MB v KB that no adult compromise could oust the court’s jurisdiction relating to claims on behalf of the child.  Indeed, it is surely trite law and practice that Schedule 1 is the remedy where the likes of school fees are concerned post settlement.

(iii)    PK v BC expressly follows MB v KB.

(iv)    PK v BC related to a wife’s further claim for housing and a car where those issues had been determined between the parties in the final financial remedy order.  It was not said that such a claim could not be made under Schedule 1 but that “it is in my view, a very high hurdle that has to be overcome for a mother to then bring a further application for financial provision by way of housing.”  So, in that context, of W looking to make a further claim for housing and a car (not the normal stuff of Schedule 1 applications) PK v BC talks of the circumstances having to be exceptional to reopen an issue under Schedule 1 that has already been determined between the parties.   The fact that this was said, not in the context of direct provision for a child in the form of school fees or otherwise, makes an obvious point to distinguish and, it would be very surprising if this first instance decision purported to change the application of Schedule 1 to its obvious purpose of provision directly for the benefit of a child, contrary to MB v KB.

(v)     MG v FG is strictly a case dealing with summary dismissal and estoppel and its ratio is therefore arguably confined to that issue and, like PK v BC it involves a claim for housing but, despite a previous enforceable agreement and multiple previous attempts by W to pursue her claims, W’s Schedule 1 application was not in fact struck out.  Insofar as it touches on PK v BC, arguably it waters it down further, emphasising the danger of focusing on the particular language so as to obstruct the proper exercise of the judicial discretion and talking purely in terms of cases in which “a second bite” would be permitted as few and far between [para 28]. However,  it does perpetuate the concept  of having to justify a Schedule 1 application that seeks to look again at issues that have been dealt with in the FR proceedings, although again specifically in respect of housing.

Thus, in my case, there was no determination or order in respect of school fees, and therefore no ‘first bite’ but what if there had been?  Arguably, the case law requires the Schedule 1 applicant to show that the case is “exceptional” but, it is equally arguable that that reasoning has so far only been applied where the issue was housing rather than the typical Schedule 1 application directly for the benefit of a child, of which school fees is perhaps the most obvious example.  There is clearly plenty of room for further debate.