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TW v PL [2013] EWHC 3078 (Fam)

Judgment approving agreement compromising an application for financial provision under Sch 1 to the Children Act 1989 notwithstanding the mother's breach of a term of the agreement.

Neutral Citation Number: [2013] EWHC 3078 (Fam)

Case No: FD12D02833

Royal Courts of Justice
Strand, London, WC2A 2LL

21 August 2013



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MS SARAH PHIPPS (instructed by Jeffrey Green Russell Limited) appeared on behalf of the Applicant

MS ANTONIA MEE (of Burgess Mee) appeared on behalf of the Respondent

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Approved Judgment
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12 Folios
853 Words

The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people, places and companies.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

1. In this matter there were proceedings between TW who is the mother of NW who was born on 23 December 2011.  The father of NW is PL.  He has played no real part in NW's life and denied he was her father until a DNA test undertaken last year established that he was the father.

2. I understand from both parties, and accept, that there has been a very difficult history to this matter involving testy litigation and publicity sought by the mother which has caused the father, to put it mildly, some grievance.

3. The mother made an application under Schedule 1 of the Children Act 1989 for financial provision in respect of NW.  That was due to come on for a five day contested hearing.  Shortly before that hearing was to take place the parties reached an agreement that the father would pay £1,600 per month for the maintenance of NW.  A draft order was produced by the solicitor on behalf of the father which was signed by the mother on 5 August.

4. After that date the mother gave an interview to a popular magazine in which she made reference to the father, PL, and to his approach towards NW.

5. The father accordingly on Monday of this week sought to withdraw his consent to the agreement, on the basis that it is asserted on his behalf that the interview given by the mother to the magazine was in breach of various undertakings that the parties had agreed should be incorporated into the agreement between them.

6. It may well be that the mother was misguided, to put it mildly, into giving that interview to the magazine and making reference to PL when she was fully aware of the terms of the undertaking that were comprised in the agreement.  However, that agreement had not been signed by the father and, most importantly, had not been approved by the court.  Accordingly, there is no question of any formal breach of those undertakings having been made by the mother.

7. I have been referred to the cases  of  Xydias v. Xydias [1999] 1 FLR 683 and Edgar v Edgar.[1980] 1 WLR 1410. The decision for me is whether the parties reached a concluded  agreement to which they should be bound or whether there has been a vitiating factor which entitles the court to set aside the agreement.

8. There is in my judgment no halfway house.  I know of no authority which entitles me to find that there is a concluded agreement, but then to impose on one or other of the parties different terms from those which have been incorporated within the agreement. Accordingly, I have to consider whether there are circumstances which vitiate that agreement and I take account of the decision in Edgar v Edgar that there must  be good and substantial grounds that there will be an injustice caused if parties were held to the agreement.

9. The substantive nature of the agreement was in relation to a financial provision made for NW.  It  was an agreement which was reached by both the parties taking a sensible and commercial look at the matter.  I am not satisfied that there are any vitiating circumstances which would lead to the father suffering any injustice if he were held to this agreement.  Accordingly, the father has no grounds for seeking to renege on the agreement concluded between the parties having had the benefit of solicitors and experts and advice.

10. I would propose to approve that agreement and to make it a court order.  I do so not without some sympathy for the father in relation to the antics of the mother.  She must fully understand this agreement now having been made a court order, those undertakings that she has given are binding upon her and are enforceable and if in further course a court finds that she is in breach of one or more of those undertakings, then she exposes herself and will be liable to punishment by the court either by way of a financial penalty or, at the extreme, by way of imprisonment.  That is all I propose to say.