Child support has leapt high on the family lawyer's agenda again, thanks to the recent white paper, Improving Child Support (1995 Cm 2745).

However, developments elsewhere in the field of child financial relief justify consideration first.-- Capital provision for childrenTwo recent decisions confirm that outright capital transfer for children is likely to remain rare.

In A v A (A Minor: Financial Provision) [1994] 1 FLR 657, Ward J (as he then was) held that only exceptional circumstances justify capital provision for a child or his carer parent.The circumstances in A v A were exceptional by most standards: a mendacious mother, an extremely wealthy foreign father, property in Belgravia and so on.

The duty of an absent parent was to maintain a child, which might include settlement during his dependency of property in which a child lived, and payment of school fees and other extras.

Outright transfer would rarely be appropriate.The mother in A v A may justify little sympathy.

By contrast T v S (Financial Provision for Children) [1994] 2 FLR 883 recalls the stark distinction between the rights of the married, as against the unmarried, parent.

Here, Johnson J transferred the balance of an unmarried couple's capital to trustees for the five children of the relationship to purchase a house for mother and children.

When the children all ceased tertiary education the property was to revert to the father outright.The judge stressed that Children Act 1989 sched 1 required the court only to provide for the children whilst they were dependents.

And as for the mother? When the last child finishes tertiary education she will be homeless and without capital after years of caring for the children.

Perhaps one child will grow up to be a permanent student.-- Child support - case lawIn three decisions Thorpe J has considered various aspects of child support maintenance.

Smith v McInerney [1994] 2 FLR 1077 confirms the court's ability to seek from a carer spouse an indemnity for future payments of child support maintenance, where she receives capital supposedly in full and final settlement of all financial claims including maintenance for children.

The husband's property adjustment application was adjourned generally for the sole purpose of enforcing the indemnity.This was a course recommended by many commentators at the time of the Child Support Act 1991, and it is helpful to see it judicially endorsed.

What the learned judge does not do, unfortunately, is explain how the indemnity can be capped when the amount overpaid by the husband in child support maintenance exceeds the value of what he has given to the wife.The Smith v McInerney scheme should be born in mind, even if the white paper recommendations are accepted to apply to 'clean break' settlements.

On that basis it is recommended that there be 'departures' from the formula only for pre-April 1993 settlements.Mawson v Mawson [1994] 2 FLR 985 is of particular significance in the light of the white paper.

Here, Thorpe J held that where child support maintenance was varied by political arrangements (as distinct from variations in the parties' means or index-linking on review by the CSA), then it was appropriate to increase inter-spousal periodical payments to bring the wife up to the level intended to be paid to her by the court which made the original order.In Mawson, as a result of the changes in February 1994, the amount payable to the wife dropped.

The district judge had awarded periodical payments to her on the basis of particular formula payments.

The loss suffered by the wife should be replaced by upward variation of her maintenance.If the white paper recommendations on amendment of the formula are accepted then many inter-spousal orders will find themselves looking a little thin.

Unless there is allowance for this in the legislation - and it is difficult to see how there could be - then this case should be relied on to seek a variation to make up the shortfall.The alternative from now on is to ask the district judge to fix spousal periodical payments as: 'Such figure as, with addition of child support (as varied from time to time) totals [the figure he seeks to have paid periodically to the wife] payable weekly/monthly until, etc'.-- Child support -- administrative lawFinally, in B v Secretary of State for Social Security (1995) The Times, 30 January Thorpe J explained that the proper way to challenge the secretary of state's alleged failure to take account of the welfare of all children concerned (s.2 of the Child Support Act 1991) when making a deduction from earnings order, was not by appealing to the justices by seeking judicial review of the secretary of state's decision.This exposes a common misconception about the Act harboured, not surprisingly, by a number of aggrieved absent parents - perhaps even by a few practising lawyers (B's counsel included?): namely, that to object that the secretary of state has failed to exercise a discretion can be considered by magistrates or, more commonly, by child support appeal tribunals.

These consider only questions within the decision-making remit of the child support officer.

Questions of the secretary of state's discretion can only be challenged on judicial review.-- Child support - the white paperThe following points are factors which practitioners should bear in mind.

References are to paragraph numbers in 1995 Cm 2745.(1) Departures from the formula - called 'discretion' by most of us - will be allowed in only a minority of cases, though for the lawyer this is likely to be as rich a hunting ground (where a client can afford lawyers' fees) as s.25 of the Matrimonial Causes Act 1973 has ever been.Meanwhile, it is necessary to warn the court of the impending changes where an absent parent pleads impending insolvency because of heavy matrimonial debts; this may change when such debts permit a 'departure' (paras 2.5(a) and 2.6(e)) - probably at some time during 1996/7 (para 2.17).(2) From April 1995 (para 7.1) there will be substantial changes to the formula.

In negotiation of spousal maintenance now it is important to no te that rates paid to parents with care will drop.

Practitioners are therefore urged to bear in mind Mawson v Mawson [1994] 2 FLR 985 and the formula for inter-spousal periodical payments orders proposed above.(3) Another euphemism for 'discretion' is the 'broad-brush provision for property or capital settlements' (paras 3.2 et seq).

Thus exempt income in the formula will include an allowance intended to recognise that a transfer has taken place: 'The applicant will be required to provide contemporaneous written evidence that a transfer occurred and evidence as to its value' (para 3.3).From this the following arise:(a) Evidence of value must be available.

A professional valuation of property in all cases would therefore seem prudent.(b) Most of us will have written evidence, but deals reached in oral negotiations must be confirmed in writing where court orders, separation deeds or transfer documents do not confirm the agreement.(c) Arrangements for destruction of matrimonial files should be reviewed.

All files containing evidence of agreements should be kept till the youngest child of the couple is 19 - the CSA could strike at any time up till then.-- Leave to appeal out of timeA trio of recent cases reminds us that to obtain leave to appeal out of time means a long, steep ascent, with little sustenance on the way.

Generally the courts adhere closely to the Barder principles (Barder v Barder (Caluori intervening) [1988] AC 20, [1987] 2 FLR 280, HL).Thus in Penrose v Penrose [1994] 2 FLR 621, the Court of Appeal rejected a husband's application where he had underestimated his tax liability at the original hearing.

The correct figure was not a 'new event' in Barder terms: with more effort H could have given a more accurate figure at the original hearing.In Worlock v Worlock [1994] 2 FLR 689, the Court of Appeal rejected a wife's application for leave to appeal based on grounds that her former husband had been given valuable shares by his mother two years after the order, especially as the gift of shares was known to be a possibility at the original hearing.And in Cornick v Cornick [1994] 2 FLR 530, Hale J held that a dramatic rise in the value of a husband's shares less than a year after the district judge's order was not a 'new event', even though the rise was unforeseeable at the time of the order.

Cornick is also noteworthy for the helpful review of many of the cases on this subject provided by Hale J's judgment.A rogue case is S v S (Financial provision) (Post-divorce Cohabitation) [1994] 2 FLR 228, in which Douglas Brown J held that a long post-divorce cohabitation (1977-1991) was a factor enabling a former wife - the couple had not remarried - to be granted leave to appeal out of time against a consent order made at the time of the divorce.

The original order was now unjust to the wife, and in the circumstances the Barder principles were satisfied even though 18 years had elapsed since the order.-- Costs - 'exceptional circumstances'In Re Children Act 1989 (Taxation of Costs) [1994] 2 FLR 934, Cazalet J, sitting with assessors, confirmed that membership of the Law Society's Children Panel was an exceptional circumstance justifying a taxing officer in awarding a higher amount, and this was so even though the solicitor was not representing a child.They set out a number of factors to be considered when assessing 'exceptional circumstances' under Legal Aid in Family Proceedings (Remuneration) Regulations 1991 reg 5(1) including:(1) Solicitor advocacy.

This is not of itself an exceptional circumstance; but advocacy by a panel member is an exceptional circumstance which may justify an enhancement.(2) Length of hearing - a hearing of more than two days might be expected to attract an enhancement.(3) Transfer upwards - this gives an indication of complexity.(4) Difficulties of communication with client.(5) Conflicts of expert evidence - conflict of detailed medical evidence or a proliferation of expert witnesses.(6) Sexual or other serious abuse - detailed contested allegations of serious sexual or other abuse.(7) Conflict between guardian ad litem and child.(8) Children with different needs.-- Specific identification to claim enhancementSpecific items to which an enhancement was claimed must be identified - a generalised mark-up was not sufficient.

(In this case different rates were allowed for: an interim care hearing (20%), a directions appointment (with negotiations, etc) (20%), perusals and preparation for the hearing (45%), attendances on a difficult client (40%) and solicitor advocacy at the final hearing (50%).)An explanation of any enhancement sought should be provided and should be applied separately to specific areas of work - for example a rate of £95 per hour for the final hearing was said not to be set in stone but might be thought a useful bench-mark.Costs draughtsmen will need to note this judgment carefully and to ensure that different types of work attract different up-lifts (if any).

How long it will be before this approach is applied to other bills remains to be seen.

Logically there seems to be every reason for applying a differential approach to all family bills from now on.