News: Rare birds and capitalising child maintenance payments

In this news piece, FLiP Director James Pirrie analyses the recent case of AZ v FM [2021] EWFC 2 in which child maintenance payments were replaced by a capital sum. 

On a day when a sparrow hawk pulled a pigeon to pieces on our lawn for twenty minutes, another rare bird was announced by Mostyn J. Indeed he described it as “a very rare bird indeed”.

Mostyn J confirmed that there is jurisdiction to make an order that capitalises and replaces future payments of periodical payments in favour of a child. He called it a “commutation lump sum.”

The unique conditions were spotted by counsel Helen Williams and adopted by the judge in AZ v FM [2021] EWFC 2 and are now confirmed as follows:

1. Incessant litigation between the parties (one suspects assisted by the fact that the objecting paying parent had not cut an attractive figure in the litigation and had run up massive costs – but this factor if it was present was not specified as a pre-condition);
2. Repeated defaults by the paying parent;
3. The fact that the child was older (aged nineteen) and it was not long before the support would end anyway. This meant that the likelihood of change to undermine the appropriateness of the provision was limited; and
4. The fact that the jurisdiction of the CMS would not get in the way of such an award (here not only because of the age of the child but also because the paying parent was habitually resident abroad).

So it is a first that I have heard of (or indeed much more worthy of note that Mostyn J had heard of). However, we all know that once a bridgehead is established, the great variety of family circumstances can lead to the proliferation of orders, however novel they appear at first.

So perhaps there are more rare birds to come – I will hope to spot my first Montagu’s harrier before the year is out.