G v A [2009] EWHC 11 (Fam) (20 January 2009)

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England and Wales High Court (Family Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> G v A [2009] EWHC 11 (Fam) (20 January 2009)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2009/11.html
Cite as: [2009] 1 FCR 606, [2009] 1 FLR 1442, [2009] Fam Law 389, [2009] EWHC 11 (Fam), [2009] WLR 1621, [2009] 1 WLR 1621

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		Neutral Citation Number: [2009] EWHC 11 (Fam)
		Case No: FD03P02333

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)

Royal Courts of Justice
Strand, London, WC2A 2LL
Draft sent to the parties on 8 September 2008
Approved judgment sent to the parties on 6 January 2009

Handed Down In Public On 20 January 2009

B e f o r e :

MR JUSTICE MUNBY
____________________

Between:

	In the matter of N (A Child) In the matter of section 15 of and Schedule 1 to the Children Act 1989 G	Applicant
	- and -
	A	Respondent

____________________

On 12 November 2007
Mr Michael Cronshaw (instructed by Duncan Lewis & Co) for the Applicant G (the mother)
The Respondent A (the father) appeared in person assisted by his McKenzie friend Dr Michael Pelling
On 24 July 2008
The Applicant G appeared in person assisted by her McKenzie friend Mr David Holden
Dr Michael Pelling (of Bance Commercial Law) for the Respondent A
Hearing dates : 12 November 2007, 24 July 2008
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Mr Justice Munby :

These are proceedings brought by a mother pursuant to section 15 of and Schedule 1 to the Children Act 1989. The proceedings relate to N, who was born in March 2001. His parents were never married.

The forensic background

In order to understand exactly what jurisdictions I am being invited to exercise and the nature of the matters which are in controversy it is necessary to sketch out the somewhat unusual forensic background.

On 10 May 2005 District Judge Roberts, sitting in the Principal Registry of the Family Division, made an order which so far as material for present purposes was in the following terms:

"1 The Father shall pay to the Mother by 29^th July 2005 for the benefit of the Child N the sum of £20,000 absolutely.

2 The Father shall settle on the Mother by 27^th July 2005 for the benefit of the Child the sum of £220,000 which the Mother shall use to purchase a property to house herself and N until N reaches the age of 21 or completes tertiary education whichever is the later. The Father's interest in the property purchased shall be whatever percentage of the gross purchase price the sum of £220,000 represents."

The mother, in a statement dated 23 November 2007, has indicated her intention to contribute to the purchase of the property by raising money on mortgage.

That order was made in the absence of the father in circumstances to which I will return in due course.

The father sought to appeal against the order. On 9 August 2005 Baron J stayed the District Judge's order until 2 September 2005. Thereafter the stay was informally extended by agreement between the parties. The appeal came on for hearing before Sumner J on 8 December 2005. By paragraph 3 of the order he made on 9 December 2005 Sumner J directed so far as material that:

"Upon condition that the Appellant Father pays the sum of £38,000 to the Respondent Mother's solicitors by 20^th January 2006 as security for the Respondent Mother's costs of [certain proceedings] … the Appellant [sic] appeal against order of District Judge Roberts … be allowed and the application remitted to be re-heard by District Judge Roberts".

Paragraph 4 of Sumner J's order provided that

"If the father does not pay the £38,000 to the Respondent Mother's solicitors as provided for in paragraph 3 above, his appeal against the order of District Judge Roberts … shall be dismissed."

Save that in December 2006 he gave the mother a cheque for £20,000, which he then stopped before it had cleared, the father did not pay the £38,000 referred to in Sumner J's order (though the father did eventually pay the mother's costs in December 2006) and has never paid either of the sums of £20,000 and £220,000 referred to in the order of District Judge Roberts.

The father did not seek to appeal against Sumner J's order, so the District Judge's order stood in full force and effect. It became immediately binding and enforceable against the father on 20 January 2006 when he failed to make the payment of £38,000 required by Sumner J's order.

On 7 April 2006 the mother applied for a charging order against two properties allegedly owned by the father, with a view to enforcing what she said was the "judgment debt" of £240,000 arising under the District Judge's order. In fact, as an affidavit sworn by the mother's solicitor on 11 May 2006 makes clear, although the father is indeed the registered proprietor of one of the properties, the registered proprietor of the other property is a company all the shares in which are held by the father. The submission made by the solicitor in that affidavit, without any further elaboration, was that "accordingly" this property is "beneficially owned" by the father. An interim charging order was made by District Judge Redgrave on 2 May 2008, but limited to the property of which the father is the registered proprietor.

The mother's application that the interim charging order be made final came before me on 15 May 2006. Although this was not a point taken by the father, I indicated my scepticism as to whether in relation to the sum of £220,000 there was, as a matter of law, any judgment debt or other liability capable of being enforced by way of a charging order. I adjourned the matter to enable the parties – the mother in particular – to consider the position.

The matter came back in front of me on 26 April 2007, when it became apparent that neither party had complied with the directions I had previously given. I re-timetabled the matter and listed it for further directions before me on 4 July 2007.

By the time the matter returned before me on 4 July 2007 three further applications had been made:

i) On 10 May 2007 the mother issued a summons seeking the appointment of a receiver of the father's properties by way of equitable execution.

ii) Also on 10 May 2007 the mother issued an application as she put it "to implement" paragraph 2 of the order made by District Judge Roberts on 10 May 2005, "pursuant to an implied liberty to apply", by inserting after the words "The Father shall settle on the Mother by 27^th July 2005 for the benefit of the Child the sum of £220,000" the words "by paying the Mother the sum of £220,000".

iii) On 15 June 2007 the father issued an application seeking that paragraphs 1 and 2 of the order made by District Judge Roberts on 10 May 2005 be "amended" and that a "new" paragraph 5 be inserted. I set out the proposed amendments, which were lengthy, in Appendix 1 below. The father's application asserted that the District Judge had jurisdiction to make the orders sought, without recourse to appeal, by virtue of (a) the 'slip rule' (CCR 1981 Order 15, Rule 5) or (b) what was described as "the court's inherent power to carry out its own meaning and intention or to clarify and give expression to that meaning and intention and make it plain" or (c) what was described as "its general power to give directions and orders as [to] the implementation of its own substantive orders" or (d) the court's power (CCR 1981 Order 37, Rule 2) to set aside and rehear an order made in the absence of a party. This application was listed for directions before District Judge Roberts on 6 September 2007 and for hearing before District Judge Roberts on 26 September 2007.

On 4 July 2007 I gave directions for the hearing of the mother's three applications before me on 12 November 2007. I also directed that there should be a directions hearing before me on 16 October 2007, inter alia for the purpose of giving directions in any appeal there might be from the order to be made by the District Judge on the father's application. At a further directions hearing on 16 July 2007 I ordered that all proceedings in the Principal Registry under case number FD03P02333, including the pending financial proceedings, be "transferred forthwith to the High Court". As I understand it, it was because of this transfer to the High Court that when the father's application came before District Judge Roberts on 6 September 2007 for directions she was reluctant to exercise jurisdiction.

On 11 September 2007 the father wrote to the court indicating his preference that I rather than the District Judge deal with his application, and asserting that, because of the transfer to the High Court, I had jurisdiction to deal with the matter under RSC Order 35, Rule 2, with extension of time under RSC Order 3, Rule 5. The mother's solicitors objected to this in a letter to the court dated 21 September 2007, but District Judge Roberts vacated the hearing on 26 September 2007 shortly before it was due to commence.

On 12 October 2007 I gave final directions with a view to the hearing before me on 12 November 2007 of all four applications: the mother's three applications dated respectively 7 April 2006, 10 May 2007 and 10 May 2007, and the father's application dated 15 June 2007.

The hearing on 12 November 2007

The mother appeared represented, as previously, by Mr Michael Cronshaw of counsel. The father appeared in person assisted, as previously, by his McKenzie friend, Dr Michael Pelling. In the circumstances I permitted Dr Pelling to address me and to make legal and other submissions on behalf of the father.

The mother's case was set out in affidavits sworn by her on 7 April 2006, 10 May 2007 (two) and 29 June 2007 and, more particularly, in a case outline (exhibited to one of her affidavits sworn on 10 May 2007) and in Mr Cronshaw's written submissions dated 9 November 2007. The father's case was set out in witness statements by him dated 15 June 2007 and 19 October 2007 and, more particularly, in the helpfully detailed and very clear 'grounds' set out in his notice of application dated 15 June 2007. Amongst various other materials contained in the bundle were approved transcripts of the judgment delivered by District Judge Roberts on 10 May 2005 and by Sumner J on 9 December 2005: [2005] EWHC 3145 (Fam).

Because of listing pressures there was not time on 12 November 2007 to finish the argument. I adjourned on the basis that further written submissions would be lodged. Mr Cronshaw filed supplemental submissions dated 16 November 2007, the mother filed a further statement of her position dated 23 November 2007 and the father filed supplemental submissions in reply dated 26 November 2007.

The reasons for the delay in giving judgment

At all times since the separation of the father and the mother in 2002, and therefore since well before District Judge Roberts made the order on 10 May 2005, N had been living with the mother (the father having extensive court ordered contact). Immediately before making the order on 10 May 2005 with which I am directly concerned, District Judge Roberts had dismissed the father's application for residence and made a residence order in favour of the mother. The father's appeal against that order was dismissed by Sumner J on 9 December 2005. But the issue did not go away and eventually, on 16 July 2007, I made an order directing, inter alia, that the father's renewed application for a residence order be listed for hearing for 5 days on 4 February 2008. At the same time (and in accordance with advice from CAFCASS in a letter dated 3 July 2007) I directed that N be joined as a party to the section 8 proceedings and, pursuant to FPR 1991 Rule 9.5, that an officer of CAFCASS be appointed as his guardian.

It will be recalled that the fundamental basis of the order which District Judge Roberts had made on 10 May 2005 was that the sum of £220,000 to be provided by the father was to be, as the order expressed it, "use[d] to purchase a property to house [the mother] and N." Now that the whole question of residence was again in contention in the revived section 8 proceedings it seemed appropriate that I should defer giving judgment on the Schedule 1 matters until such time as the outcome of the hearing on 4 February 2008 – then less than three months away – was known. Unhappily, as matters turned out, the section 8 proceedings were not ready for hearing on 4 February 2008 and the hearing had to be re-fixed, as it happened before me, on 21 July 2008.

During the course of that hearing, on 24 July 2008, the mother (acting in person with the assistance of a McKenzie friend: see Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899) raised a point in respect of the relationship between the section 8 proceedings and the Schedule 1 proceedings. In the upshot I made an order requiring each party to file by the following day (25 July 2008) a written statement setting out (1) a list of the issues or topics, if any, that they believed remain to be argued in the Schedule 1 proceedings and (2) any further directions they sought with a view to concluding the Schedule 1 proceedings. Both parties filed statements to the effect that there were no issues or topics which required further argument in the Schedule 1 proceedings – both parties saying that the issues had been "fully argued" in November 2007 and that they were awaiting judgment – and that no directions were sought. The father, however, qualified his answer to (2) by adding the words "But [he] reserves the right to apply under liberty to apply, in the light of the judgment when received and possibly in the light of the conclusion of the current [section 8] proceedings."

This remained the position of the parties when, on 29 July 2008, the section 8 proceedings concluded with me pronouncing a consent order in terms which had been agreed in every detail by the parties and which were then embodied in a detailed order signed by both of them the same day.

There were then further delays after the father asserted that he had not in fact consented to one of the terms of the order. That issue was not resolved until 5 September 2008, when I handed down (in private) a judgment explaining why the father was bound by the order he had signed. (Even now that matter may not have been finally resolved, for, notwithstanding that the order had in fact been sealed on 5 September 2008, the father notified me on 2 October 2008 that he wished the court to "amend the consent order".)

The section 8 proceedings having thus concluded I now hand down in public (a draft having previously been sent to the parties on 8 September 2008) my judgment on the Schedule 1 issues.

The father's application

It is convenient to deal first with the father's application dated 15 June 2007.

The father in substance raises nine points. I take them in turn, though not in quite the same sequence as they are set out in his application. The first four relate to paragraph 1 of the order made by District Judge Roberts on 10 May 2005, all the others, with one exception, to paragraph 2 of that order.

(1) The first point is that the father seeks to defer his obligation to pay the sum of £20,000 until contracts have been exchanged for the purchase of the property acquired in accordance with paragraph 2 of the order. This amounts to an attempt to re-write the order made by District Judge Roberts in circumstances where I can see no justification for what the father seeks. I refuse to do so.

(2) Secondly, the father seeks the insertion of words in paragraph 1 spelling out that the sum of £20,000 is to be used for the costs of moving to and furnishing the property acquired in accordance with paragraph 2 of the order. He supports that submission by pointing to paragraph [15] of the District Judge's judgment, where District Judge Roberts said "I … accept that the Mother will need the sum of £20,000 absolutely for the cost of moving". So, he says, the intention of the District Judge as to the use of that sum is plain.

I see no disadvantage, if little real advantage, in spelling out explicitly what, it is clear from the judgment, was implicit in paragraph 1 of the order. Paragraph 1 will be amended accordingly.

(3) Thirdly, and linked in with the previous point, the father asserts that the mother should be required to account to him for the balance of any money not used for the specified purpose. He says that he is entitled to the return of any part of the £20,000 not properly spent within four months. He points to what Thorpe LJ said in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [52], though on this point it does not seem to me to assist him greatly.

In my judgment the father is entitled to this clarification, though I would substitute for the father's suggested reference to the fixed period of four months, reference to "a reasonable time". The general principle, perhaps more familiar in the Chancery Division than in the Family Division, is that money directed to be applied for a specified purpose is, to the extent that it is not so applied, held upon trust for the payor: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567. That principle, in my judgment, applies here. Paragraph 1 of the order will be amended accordingly. I propose to stipulate for repayment if and to the extent that the money has not been used within a reasonable time not to encourage delay on the part of the mother but simply in recognition of the reality that events beyond her control may mean that some of the bills remain payable somewhat longer than four months.

(4) Fourthly, the father seeks to impose upon the mother the obligation to account for her use of the £20,000 by providing receipts. He points to what Thorpe LJ said in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at paras [49], [52], [54], echoed by May LJ at para [75] and Bodey J at para [83]. Mr Cronshaw on behalf of the mother ripostes with a reference to District Judge Million's judgment in Re C (Financial Provision) [2007] 2 FLR 13 at para [84] and submits that the father's proposal is a recipe for endless further disputes and litigation. He says that every case must be decided on its own facts and that the approach of District Judge Million is appropriate – indeed, he suggests, particularly apposite in the circumstances of the present case. The mother's secondary position, he says, is that a single written statement (without receipts) a year after the property has been purchased will suffice to meet any concerns that her expenditure has been otherwise than for the purpose of moving to and furnishing the property – a proposal which the father in response describes as "plainly fatuous."

It needs to be borne in mind that the expenditure with which the court was concerned in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 was a sum of £100,000 and part of the father's concern in that case, echoed by Thorpe LJ, was that parts of those monies might be squirreled away by the mother for her own benefit. May LJ stressed, however, (at para [75]) that "in other cases where available resources are much more modest, … accounting for how exiguous payments are spent may be positively undesirable." District Judge Million went somewhat further in Re C (Financial Provision) [2007] 2 FLR 13, saying (at para [84]) that "it [is] almost always unhelpful and counterproductive to encourage a father to ask that the mother keep such accounts of her expenditure." But that, as the father points out, was concerned with the quite different question of accounting for the expenditure of periodical payments, and here I am concerned, says the father, with the question of accounting for the expenditure of a one-off sum and, moreover, a sum which was, unlike an award of periodical payments, awarded for and intended to be used for a specified purpose. In this context, he says, what is significant is not what District Judge Million said in Re C (Financial Provision) [2007] 2 FLR 13 but rather what Thorpe LJ said in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, in particular at para [52], where, with reference to the sum of £100,000 to be paid for finishing, furnishing and equipping a house, he said that "Of course the father is entitled to proof that the whole sum has been spent on the making of [the] home and that none of it has gone into the mother's pocket."

For the reasons given by the father I do not think that Re C (Financial Provision) [2007] 2 FLR 13 is, in the present case, of any real assistance. Much more in point, I agree, is Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, though in my judgment Thorpe LJ's observations have to be read with May LJ's caveat very much in mind. Where the sum is substantial, then, for the reasons given by Thorpe LJ, an appropriate accounting will be directed. The sum involved in the present case is significantly smaller than the sum with which Thorpe LJ was concerned, but it is not insubstantial, and although it approaches it does not, in my assessment, reach the level at which, applying May LJ's approach, accounting is inappropriate. The father, in my judgment, is in all the circumstances entitled to require the mother to provide a proper account of how the £20,000 has been applied, together with receipts for all items costing more than £10. Paragraph 1 of the order will be amended accordingly.

(5) Fifthly, and turning to paragraph 2 of the District Judge's order, the father says that it cannot conceivably have been intended by the District Judge that the mother should be sole trustee of a settlement under which the capital will revert to him at the end of the specified period. He submits that there should be two trustees, one nominated by the mother and the other by the father; that neither the mother nor the father should be a trustee – he say he knows of no reported case where the mother was made a trustee, asserts that it is plainly not the practice to make such an appointment and suggests that there are obvious general reasons why it is undesirable; that in order to avoid deadlock there should be a third trustee (to be selected by the court in such manner as it thinks fit if the mother and the father cannot agree who it should be); and that the trustees should be empowered to act by majority. In support of this general approach the father points to the observations of Ward J (as he then was) in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 663, and to what Thorpe LJ said in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at paras [45], [54]. He also referred to Re S (Unmarried Parents: Financial Provisions) [2006] EWCA Civ 479, [2006] 2 FLR 950, at para [4], but I do not find that of any particular assistance in this context. For good measure the father says that this particular mother is wholly unfit to be a trustee of a valuable settlement and says that in this particular case it would be desirable to have a third – professional – trustee who, he suggests, would, cost-effectively, only be involved to overcome a deadlock or to advise the lay trustees on legal matters if need be.

For her part the mother submits that there should be two trustees, herself and an independent professional trustee. She opposes the father being a trustee, or having the right to appoint a trustee, given the intense acrimony between the parties. She says her proposals should be preferred because the father will have the protection of knowing that the two trustees, one of them wholly independent, will have to act unanimously; it will limit the costs of administering the trust; and, since she will actually be living in the property, she will have a close personal interest in the proper administration of the trust. Insofar as the father seeks to impugn her ability to act as a trustee, she disputes that there is any validity in his complaints. Alternatively, if I am not prepared to accept her proposals she says that there should be two independent professional trustees – not lay trustees – or alternatively a trust corporation. This is because, as I understand Mr Cronshaw's submissions, were the parties to be left to appoint any person at their unfettered whim there is the very real danger that the conflict presently existing between the parties would continue via their proxies, with unhappy and expensive consequences. Moreover, the task of the (third) professional trustee would potentially become even more onerous and expensive.

In my judgment, there should be two trustees, one appointed by the father and the other by the mother; neither need be a professional person. Neither the father nor the mother should be eligible to be a trustee. My reasoning is simple: given the acrimony between the parties it is essential that the trusteeship should not be seen to be in any way 'slanted' either in favour of or against either parent, but at the same time, and for precisely the same reason, it is essential that the trusteeship be vested in persons other than the parents themselves. I have considered with care the suggestions that there should be professional trustees, either, as the mother suggests, that both trustees should be professional persons or, as the father suggests, that there should be a third, professional, trustee. I have decided, on balance, to reject both suggestions, essentially on grounds of cost, because I am somewhat sceptical as to the ability of the parties to find a professional person in private practice willing to take such a trusteeship in the circumstances of this particular case, and because I cannot think that it is going to be helpful to any of those involved – and one must not forget N in all this – if the affairs of this trust were to be managed either by a trust corporation or by the Public Trustee. An appropriate provision to this effect will accordingly be included in paragraph 2 of the order.

(6) Sixthly, the father says that it is for the mother, in the first instance, to draft the necessary Deed of Settlement and at her own cost. And given what he says is the history of the mother's unreasonable failure in this respect she should now be required to do so within a reasonable time – six months – on the basis that if she fails to do so the order should immediately cease to have effect. He says that he should not be required to pay over the £220,000 until execution of the Deed, at which point he will have the security of paying it to the trustees; he should not, he says, be required to pay it over to the mother. For this reason he strongly resists the mother's application to vary the District Judge's order so as to provide for payment to her of the £220,000. The mother takes issue with the suggested 'cut-off' date and further says that the costs of preparing the Deed should either be shared equally between the parties or that the parties should each be left to bear their own costs. However, if it becomes necessary to appoint conveyancing counsel pursuant to paragraph 13 of Schedule 1, those costs should, she says, be borne equally by the parties.

There is a squabble between the parties as to who had the responsibility of proposing the terms of the settlement and preparing a draft Deed and as to who is to blame for the delays in moving matters forward since the dismissal by Sumner J of the father's appeal. Each seeks to throw both the responsibility and the blame on to the other. I do not propose to become involved in this unedifying history save to observe that the father seems to have been far too willing to delay matters and avoid his responsibilities and that the mother in large part has only herself to blame for not having taken a more pro-active and prompt stance in seeking to give effect to, and if need be enforce by compulsive means, the terms of the order made by District Judge Roberts. She says that it was incumbent on the father to make proposals as to the terms of the settlement, and complains that he did not do so until he made his application on 15 June 2007. I decline to take up time debating the technical issue as to who, in strict legal theory, had the obligation to make the first move; I observe only that the mother could have taken the initiative in formulating the terms of the settlement and producing a draft Deed at a much earlier stage and, in that sense, has in large part only herself to blame.

I agree with the father that he should not be required to pay over the £220,000 until the relevant trust deed has been executed, at which point there will be trustees able to give a good receipt and who will be accountable to him as settlor. I therefore dismiss the mother's application dated 10 May 2007 for the variation of paragraph 2 of the order. But I see no reason why there should be some arbitrary 'cut-off' date, after which the order simply ceases to have effect. The appropriate protection for the father against any undue delay by the mother is a liberty to apply. The costs hitherto incurred by the parties in and about the drafting of the Deed will, in the circumstances, be left to lie where they fall. Neither party, in my judgment, is so clearly in the right or has so clearly misconducted themselves as to justify throwing these costs onto one rather than the other. I will give the parties a short period – I propose one month – during which they can (each at their own expense) seek to reach agreement as to the drafting of a suitable Deed, after which I will direct that the Deed is to be settled by conveyancing counsel at the joint and equal expense of the father and the mother. Appropriate provisions to this effect will accordingly be included in paragraph 2 of the order. Counsel will, no doubt, be alert to the fiscal problems identified (at least in part – there may for all I know be other tax matters to be considered) by Tod and Ellis, Tax Implications: Schedule 1 Trusts, [2007] Fam Law 708.

(7) Seventhly, the father says that until such time as the trustees actually purchase a property the interest on the £220,000 should be payable to him, and that if no property has been bought within twelve months the order should immediately cease to have effect and the £220,000 should be repaid to him together with any accrued interest. The mother agrees that the interest in the interim should be paid to the father but again takes issue with the suggested 'cut-off'date.

For reasons already explained, I decline to impose a 'cut-off' date, but the father is, as the mother accepts, entitled to the interest he claims. An appropriate provision to this effect will accordingly be included in paragraph 2 of the order.

(8) Finally, in relation to paragraph 2, the father raises a point of substance on the terms of the District Judge's order which I need to deal with in some detail. I shall defer doing so until I have dealt with all the other matters in contention.

(9) The father's final point relates to his proposal that a new paragraph 5 should be inserted in the order giving liberty to apply as to "implementation" of the order. For her part the mother suggests that the liberty to apply (which she agrees) should be as to "implementation and timing."

There will be a liberty to apply as to both "implementation and timing", this being, as it seems to me, as much a safeguard for the father as for the mother and, given that I am not prepared to impose at this stage the 'cut-off' dates the father seeks, an important and valuable safeguard for the father. I should spell out what I have in mind. Quite apart from any express provision in the Deed, if it is ever executed, the father is entitled to the benefit of the Quistclose principle in relation to both the £20,000 and the £220,000, so that if the monies are not applied in accordance with the specified purposes they will revert to him under the Quistclose trust. I see no reason why, in a case of this kind, the court should not in appropriate circumstances, and in particular if the mother is unreasonably 'dragging her feet', have power to impose a time limit after which the monies are to revert unconditionally to the father or (if they have not yet been paid) where any obligation to pay them is to cease. And I see no reason why, in an appropriate case, that power cannot be exercised pursuant to a liberty to apply of the kind which I have in mind here. In my judgment it would not be appropriate to impose a 'cut-off' date at this stage, but it is not impossible that the time may come when it will be appropriate; at which time the court will have power to do so under the liberty to apply.

The mother's applications

I have set out much of the mother's position in the course of considering the father's application. The mother in substance raises five other points. I take them in turn. The first two relate to paragraph 1 of the order made by District Judge Roberts on 10 May 2005, all the others to paragraph 2 of that order.

(A) Mr Cronshaw says that, following the father's failure to make the payment required by Sumner J's order, his obligation to pay the £20,000 became immediately enforceable and therefore carries interest at the judgment rate of 8% since that date. Dr Pelling helpfully points out, correctly, that interest at judgment rate runs from 29 July 2005. A stay of execution does not operate to suspend interest so, when the stay ends, the full interest falls to be paid.

I agree. So interest on the sum of £20,000, at the judgment rate, runs from 29 July 2005.

(B) Whatever the position in relation to the £220,000, Mr Cronshaw says that there is no reason why, at least in relation to the £20,000, the interim charging order should not be made a full charging order. It is not, he says, open to the father now to seek to impose unilateral conditions on payment of a sum where the obligation on his part to make that payment has now arisen on an unqualified basis. He abandons any claim for a charging order in respect of the other property registered in the name of the father's company. The father says that, quite apart from any application he is making in relation to the £20,000, the application for a charging order is misconceived and premature because the cost of moving, which the payment is directed to, is not even on the horizon.

That, in my judgment, is not a reason for not making the charging order final, though it is, in the circumstances, a good reason for postponing the mother's right to enforce the charging order until such time as, having found a property in accordance with paragraph 2 of the order, she actually needs the £20,000 for use in the specified ways. Appropriate provisions to this effect will accordingly be included in paragraph 2 of the order.

(C) The mother, as Mr Cronshaw put it in his submissions dated 9 November 2007, "seeks the determination from the court in respect of the terms on which the £220,000 should be settled on trust." She has somewhat belatedly, as an exhibit to the affidavit she swore on 2 July 2007, produced a draft Declaration of Trust. In addition to the various other provisions for which she contends and to which I have already referred, the draft provides for the mother to have the right to buy out the father's interest in the property, at a price to be agreed or determined by an independent joint valuation, either during the life of the settlement or at its conclusion.

That would seem to be acceptable in principle and appropriate having regard to the future housing needs of the mother and, it may be, also of N. The father will not be prejudiced so long as he is protected from being bought out at anything other than the full market price or at a time when the market is depressed. Appropriate provisions to this effect will accordingly be included in paragraph 2 of the order.

(D) The mother, as I have indicated, also says that the costs of preparing the Deed should either be shared equally between the parties or that the parties should each be left to bear their own costs, but that if it becomes necessary to appoint conveyancing counsel pursuant to paragraph 13 of Schedule 1, those costs should, she says, be borne equally by the parties. I have already dealt with that. She goes on to say that the costs of thereafter administering the trust, and any tax consequences, should be borne by the parties in proportion to their contributions to the settlement. She makes clear, however, that she reserves the right to apply for further lump sums from the father pursuant to paragraph 1(2)(c) of Schedule 1 to meet any 'periodic' payment and 'exit' tax payment. The father says that he strongly objects to the idea that he should be compelled to fund such taxes by means of applications for further lump sums and puts down a marker indicating his likely stance in the event that any such application is made.

In principle, in my judgment, the mother is right in contending that the costs of administering the trust, and any tax consequences, should be borne by the parties in proportion to their contributions to the settlement. Appropriate provisions to this effect will accordingly be included in paragraph 2 of the order. So far as concerns the question of possible future applications I note what the parties say. I propose to say nothing save that I should not be taken as in any way assenting to or encouraging the mother proceeding as she indicates, just as I should not be taken as in any way assenting to or encouraging the father proceeding as he indicates. Both must take their own advice.

(E) So far as concerns her applications for a full charging order and a receiver in respect of the £220,000, the mother says she is prepared to postpone her applications so long as the father is prepared to comply with whatever order I make and in order to give him the opportunity of doing so. She would, however, seek security in the interim, either by way of a continuation of the interim charging order made by District Judge Redgrave or by an order restraining the father from dealing with the property.

In my judgment, the mother is not entitled to a charging order nor would it, in the circumstances, be appropriate to appoint a receiver – something that will serve only to soak up more resources. She is, however, entitled to security until such time as the father has to pay over the £220,000, and that, in the circumstances, is, in my judgment, best provided by my granting her an injunction restraining him dealing with the property in the meantime.

In relation to a charging order, the short and conclusive point remains that which I identified at the hearing on 15 May 2006. So far as concerns the sum of £220,000 the order made by District Judge Roberts was not, within the meaning of section 1(1) of the Charging Orders Act 1979, an order "where … a person … is required to pay a sum of money to another person". The order did not require the father to pay £220,000 to the mother – indeed, that is, no doubt, the very reason why the mother has applied to have the words "by paying the Mother the sum of £220,000" inserted in the order. It was an order that the father "settle" that sum "on the Mother … for the benefit of the Child". Such an order is not, in my judgment, an order of the kind to which alone section 1(1) applies. Mr Cronshaw was not able to point to any statutory provision or other authority in support of his argument and I am not aware of any. Section 1(1) is quite precise in its terms. It does not apply to all forms of order requiring someone to pay or provide a sum of money and it does not, in my judgment, apply to an order of the kind which I am concerned with here.

I will therefore set aside the interim charging order so far as it relates to the £220,000 and substitute an injunction in the usual form.

A point of principle

I return to the one outstanding matter, which according to the father raises an important point of principle. I need to deal with it in some detail.

The father says that it is well established on authority that, save in exceptional circumstances (such as disability), children are not entitled under Schedule 1 to provision except during their dependency and for their education: see Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at paras [37], [41], approving what Hale J (as she then was) had said in J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 155. In the light of that principle, the normal order, he says, is a settlement until the age of 18 or the end of tertiary education – which for this purpose he would define as being confined to a first degree course (the mother agrees that tertiary education should be defined in this way). And to prevent undue delay in embarking upon a degree course, he says that there should be a long-stop date which he suggests should here be 31 July 2023, when N will be 22. The father puts the point in trenchant terms. What "cannot be done", he says, is to provide as the District Judge did here, for a settlement until 21 or the completion of tertiary education whichever is the later, for if the child does not in fact progress to tertiary education "he obtains an illegal windfall benefit for 3 adult years."

The mother's riposte to this was to point to what Hale J had said in J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 163:

"It has become quite common practice for capital settlements of this nature to be limited until the child reaches the age of 21 or finishes full-time education, whichever is the later, and, indeed, the sensible provision was made in at least one of these cases for it to be 6 months after the end of full-time education. In my view that would be the sensible provision in this case."

The reference appears to be to what Ward J had said in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 663.

Referring also to other authorities (Phillips v Peace [1996] 2 FLR 230, which I do not find of any real assistance on this point, and Re R (Child), an unreported decision of the Court of Appeal (May LJ, Hale LJ and Lord Lloyd of Berwick) on 21 October 1999), Mr Cronshaw submits that the approach taken by District Judge Roberts was one which has been taken in various reported cases and which is well within the proper ambit of the court's discretion, particularly having regard to the factors listed in paragraph 4(1) of Schedule 1 and having regard to the concept of the child's welfare as elucidated by Hale J in J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 156 (cited with approval by Thorpe LJ in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [38]) and elaborated by Thorpe LJ in Re P at para [44].

Mr Cronshaw develops his submissions by saying that 'dependency' is not a black and white concept and that it is now apt to continue for a significant period beyond 18 even if the child is not in formal full-time education – which I take to be an allusion to the increasing modern phenomenon of adult children who refuse to fly the parental nest, what have been called KIPPERS (kids in parents' pockets eroding retirement savings). Pointing to what Thorpe LJ said in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [44], Mr Cronshaw submits that in the circumstances of the present case, where the parents have become alienated and combative, the provision of a secure home for a period of time beyond the age of 18 is, so far as money and property can achieve these ends, a way of protecting the child against adult irresponsibility and selfishness; and that, adopting Thorpe LJ's concept (Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [44]) of the child's welfare as "a constant influence on the discretionary outcome," should incline the court to err towards not potentially removing N from his permanent home soon after reaching the age of 18. Moreover, he says, the father has not demonstrated a pressing need to receive his capital when N reaches 18 rather 21.

The father's rejoinder was vehement. In his written submissions dated 26 November 2007 he referred to J v C (Child: Financial Provision) [1999] 1 FLR 152 as a "maverick precedent" which is not binding on me. Getting into his stride, he submitted that:

"Hale J's pernicious judicial activism should not be followed. It is pernicious because it is typical of the Family Division's exploitation of the welfare principle … to justify replacing law by sentiment and to justify disposing of other people's property to suit judicial fashion or the moral opinions of the judiciary."

Responding to Mr Cronshaw's specific points, the father submits that it is illogical and contrary to the plain intention of Parliament to rely upon the child's welfare in relation to a period after the child has reached majority and thereupon ceased to be a child for the purposes of paragraph 1 of Schedule 1 (see section 105(1) of the Act and contrast paragraph 16 of Schedule 1 which, as the father points out, does not apply to an application for capital or other provision under paragraph 1). This is also, he says, the answer to the argument that the child is entitled, once he has become an adult, to be protected against his parents' irresponsibility or selfishness, for Thorpe LJ's observations cannot, he says, be construed as going beyond the legitimate protection of children from bad parents during their years of dependency and education. And his response to Mr Cronshaw's suggestion that dependency is now apt to continue for a significant period beyond 18 whether or not the child is in education is one of indignation and scorn.

"One wonders why it is apt now or in 1997 when it was not apt in 1993? This approach is to replace law by palm tree justice – yesterday 18, today 21, tomorrow, who knows (cf Italy) 25 or 30?"

Dependency, he says, is well recognised as being, in general, coterminous with minority. He ventures the view that Thorpe LJ would be surprised to hear that protecting children against adult irresponsibility or selfishness now means, for example, that a child who completes education by leaving school at 16 and then goes into employment is entitled to be provided for his accommodation by his father until he is aged 21.

No doubt in order to stiffen my resolve the father exhorts me to "take the firm stance of applying the non-Hale case law."

I have referred to the father's submissions. No doubt he was more than happy to associate himself with everything in the document, which in fact he signed, but I cannot help wondering whether we do not here, as indeed in the details of the 'grounds' set out in the father's application of 15 June 2007, see the pen of Dr Pelling at work. For I rather doubt that the father, highly educated man as he is, would have the detailed knowledge of the various rules and authorities referred to in those two documents which, in contrast, Dr Pelling so conspicuously displays or, indeed, either the time or the inclination to carry out the necessary research in what for him must be terra incognita.

The position is not in fact as clear cut as the father would have me accept. There is no doubt that the general principle, long established, is that, "special" or "exceptional" circumstances apart, children are not entitled under Schedule 1 to provision except during their dependency or for their education. That was made clear both by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 and indeed, as have seen, by Hale J herself in J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 155. And it has subsequently been reiterated by the Court of Appeal in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865. Moreover, as both Ward J and Hale J recognised, this is not some recent development: see their references to such well-known cases as Chamberlain v Chamberlain [1973] 1 WLR 1557, Lord Lilford v Glynn [1979] 1 WLR 78 and Kiely v Kiely [1988] 1 FLR 248.

"Special circumstances" was the phrase used by Scarman LJ in Chamberlain v Chamberlain [1973] 1 WLR 1557 at page 1564 and by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at pages 661, 663. "Exceptional circumstances" was the phrase used by Hale J in J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 155 in the passage endorsed by Thorpe LJ in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at paras [37], [41]. I do not take up time debating whether there is some distinction in this context between circumstances which are "special" and those which are "exceptional", though I very much doubt it. Both phrases are surely seeking to capture an underlying concept which is clear enough whichever phrase is used. Indeed, I note that, on one reading of his judgment, Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 seems at page 661 to have treated the phrases as interchangeable. "Special circumstances", I might add, is also, significantly, the phase used in paragraphs 2(1)(b), 3(2)(b) and 6(6)(b) of Schedule 1.

But it is important to note that there is no absolute rule that the relevant age is 18 rather than 21. As the father himself accepts, Schedule 1 does not in terms preclude a settlement extending into adult years. And the case-law is not rigid.

Taking the authorities to which I was referred in chronological sequence, in T v S (Financial Provision for Children) [1994] 2 FLR 883 at pages 890-891, Johnson J, varying the order of a District Judge on appeal in a case where there were five children, directed a settlement until the youngest child attained 21 or all the children had completed their full-time education, whether secondary or tertiary.

In A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 663 Ward J directed the settlement to terminate 6 months after the child attained the age of 18 or 6 months after completion of full-time, including tertiary, education, whichever was latest. (At page 661 he remarked that there was a "distinct trend" against making provision "in favour of adult children who have ceased their full-time education" and commented that in Kiely v Kiely [1988] 1 FLR 248 there had been no evidence to show that the children were placed in "special circumstances which made a lump sum payable when the younger child attained the age of 18 either necessary or appropriate", a theme to which he returned at page 663.)

In J v C (Child: Financial Provision) [1999] 1 FLR 152 at page 163, Hale J directed a settlement until the child reached the age of 21 or until 6 months after the child finished full-time education whichever was the later. In Re R (Child), unreported, 21 October 1999, the Court of Appeal dismissed an appeal against an order, itself made on appeal, which had provided for a settlement until 6 months after the child reached the age of 21 or ceased full-time (including tertiary) education.

In contrast, in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [45], Thorpe LJ observed that "ordinarily" the home will be required "during the child's minority". Bodey J expressed similar views at para [76] ("generally … settled for the duration of the child's minority"). The settlement in that case (see at para [67]) seems to have been until the child reached her majority or completed her education. Finally, in Re S (Unmarried Parents: Financial Provisions) [2006] EWCA Civ 479, [2006] 2 FLR 950, the property had been settled (see at para [4]) during the child's minority.

There is, as it seems to me, considerable force in the father's argument insofar as it is based both upon the specific provisions of Schedule 1 and upon the legislative policy which Schedule 1 appears to enshrine. Parliament, after all, has been careful in paragraphs 2, 3, and 6 of Schedule 1 to define narrow circumstances in which orders for financial provision can be made to extend beyond a child's eighteenth birthday or, indeed, be made on application by a person who has already reached the age of 18. As Ward J pointed out in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 661, paragraph 2 (which alone of those provisions relates to capital provision – see paragraph 2(2)(b) – the others relating only to orders for periodical payments) does not confer any power to make a form of property adjustment. So, as he observed, "That restriction serves to confirm that property adjustment orders should not ordinarily be made to provide benefits for the child after he has attained his independence."

Support for the father's approach is also to be derived from paragraph 4(1)(c) of Schedule 1, which requires the court to have regard to "the financial needs of the child" (emphasis added). As Ward J observed in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 663, "it is noticeable that they are the financial needs of 'the child', which again suggests that adult needs are not ordinarily relevant."

Finally, I note in this context that what Bodey J in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, at para [76], identified as being "a very relevant consideration" was "the welfare of the child while a minor" (emphasis added).

But there is also a wider context. By section 1(1) of the Family Law Reform Act 1969, Parliament reduced the age of majority from 21 to 18. That policy decision, which resulted as is well known from one of the recommendations of the 1967 Report of the Committee on the Age of Majority (Cmnd 3342) chaired by Sir John Latey (Latey J), must be respected and is not to be whittled away by the judges unless Parliament has elsewhere legislated to that effect. Nor in this context is there any justification for importing from the equitable principles of undue influence the doctrine of emancipation subsequent to majority (see Lancashire Loans Ltd v Black [1934] 1 KB 380 and Re Pauling's Settlement Trusts, Younghusband v Coutts & Co [1964] Ch 303) or, from Scots law, the concept of forisfamiliation. Whatever may be the position in relation to child maintenance (periodical payments) after the age of 18, there is, in the context of capital provision, no justification, in my judgment, for disregarding either the general statutory principle that a child attains majority at the age of 18 or the more specific statutory principles which are to be found in Schedule 1.

It follows, in my judgment, that there is considerable force in the father's complaint that the District Judge erred in principle in directing that the property was to be settled until N reached the age of 21. In my judgment, "special" or "exceptional" cases apart, 'dependency' ceases at majority. So, "special" or "exceptional" cases apart, any capital settlement under Schedule 1 should be expressed as terminating upon the child attaining the age of eighteen or completing tertiary education.

Nor does the matter end there, for as the approach adopted by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at pages 661, 663, demonstrates, the evidence must establish the "special" or "exceptional" circumstances relied upon if the court is to be justified making provision beyond the end of dependency or education, dependency for this purpose meaning majority. So if it is to be said that, in the event of the child not pursuing education beyond attaining majority, capital provision should nonetheless extend beyond the child's eighteenth birthday, what has to be shown is that there are special circumstances justifying the view that the child's dependency will indeed extend beyond majority. And it is not enough, as it seems to me, simply to have regard to the fact, if fact it be, that increasing numbers of legally emancipated adults are continuing to live at home rent free with their parents, or that, absent such special circumstances as disability – no doubt widely defined for this purpose – the particular child in question is likely for whatever reason to go on living after majority with one or other parent. It is not for the courts to impose legally binding obligations on unwilling parents merely because some parents choose, for whatever reason, voluntarily to assume a financial burden which the law of England does not, generally speaking, impose upon the parent of an adult child with legal capacity.

Now it has to be noted that District Judge Roberts seems simply not to have addressed the point at all. She did not consider whether the appropriate age was 18 or 21. She did not describe the case as having any "special" or "exceptional" features, nor did she refer in her judgment to any circumstance which was capable, in my judgment, of amounting in law to something "special" or "exceptional." Indeed, quite manifestly, in my judgment, this case did not and does not involve any such feature. It follows, in my judgment, that the District Judge was plainly wrong to make the order she did. The order should have identified 18 as being the relevant age. I shall accordingly substitute "18" for "21" in paragraph 2 of the order.

I turn to the question of the longstop. I quite take the point that a parent is entitled to be protected against the child's prolonged or indefinite deferral of attendance at university, but one has to bear in mind that in modern conditions an aspiring undergraduate may choose, or if he has to reapply may be compelled, to have a gap year between school and university or, if he has not had a gap year between school and university, may choose to have a gap year between university and starting employment. In principle, it will often be appropriate in cases such as this to provide that the settlement should at the latest conclude at the point at which the child has had a gap year (whether after school or after university) and finished any first degree course. This was, for example, the approach adopted both by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at page 663 ("a reasonable gap between completing her school education and embarking upon her further education") and by Johnson J in Phillips v Peace [1996] 2 FLR 230 at page 238. It is the proper approach to adopt in this case. Appropriate provisions to this effect will accordingly be included in paragraph 2 of the order.

Jurisdiction

I plainly have jurisdiction to deal with the mother's applications for a charging order and for the appointment of a receiver. And I did not understand either party to dispute, and in any event I am satisfied, that with only one exception I have jurisdiction to deal with each of the matters canvassed before me on the father's application, as part of the court's inherent power to give directions and make orders as to the clarification and implementation of its own orders – I use those words descriptively and without taking time to explore or define the precise ambit of the court's powers. But the father disputes that I have any power to make the order sought by the mother (in her application dated 10 May 2007) to insert words in paragraph 2 of the order made by District Judge Roberts, and the mother for her part disputes that I have any power to make the order sought by the father substituting the age of 18 for the age of 21 in the same paragraph of that order.

I need not consider any further the question of whether I would have had jurisdiction to do what the mother wants, for, as I have already explained, I am not in any event prepared to make the order she seeks.

The father suggests, but without much enthusiasm, that I can properly make the order he seeks under the 'slip rule', though conceding that it is arguable that there was no 'slip' by District Judge Roberts. His real argument, on the contrary, is that District Judge Roberts erred in law and in the exercise of discretion. He says that I can properly, and that I therefore should, grant him relief under RSC Order 35, Rule 2 (the High Court equivalent of CCR 1981 Order 37, Rule 2) – though only he stresses to that limited extent – because the hearing before the District Judge proceeded and the order was made in his absence. (Rule 2 cannot avail the mother, he says, because she was present at and took part in the hearing before District Judge Roberts.)

Mr Cronshaw submits, correctly in my judgment, that the father cannot succeed on this point under the 'slip rule'. After all, the precise terms of the order are set out in paragraph [18] of the approved transcript of the judgment of District Judge Roberts. More controversially he submits that the father cannot bring himself within RSC Order 35, Rule 2 (just as, he says, the father could not have brought himself within CCR 1981 Order 37, Rule 2, whilst the matter remained in the Registry). In support of this contention he points to the following matters: (1) what he says is the father's significant history of non-compliance with the court's orders prior to 10 May 2005 for production of financial evidence; (2) the fact that the father failed to appear at the hearing on 10 May 2005 without even applying for an adjournment despite the fact that both Wilson J (as he then was) on 26 April 2005 and Bracewell J on 5 May 2005 had indicated that the case should go ahead, being seemingly unimpressed with the medical evidence the father had presented; and (3) the fact that the father has already sought to appeal the order. In support of points (1) and (2) Mr Cronshaw points to what Sumner J said when giving judgment on the appeal on 9 December 2005 (see in particular paragraphs [4], [84]-[88], [92] of his judgment).

The father's response displays in equal measure insouciance, arrogance and disdain for the court and its procedures. In his written submissions dated 26 November 2007 he says "it is not attractive to see learned counsel taking petty procedural points in order to prevent the court exercising jurisdiction on a narrow but important point of law – whether or not Schedule 1 settlements can or should run to age 21 when the child's education has ceased by age 18." He characterises as "with hindsight" an "error of judgment" that he did not apply for an adjournment but blithely asserts that that is not the issue today. He says that it is, if anything, to his credit that he chose not to exercise the right to a full rehearing granted by Sumner J conditional on payment of costs (which costs, together with certain other costs, totalling in all £44,000 have in fact since been paid), choosing not to contest the principle that he should pay both the £20,000 and the £220,000 and thus obviating the necessity for a full scale and expensive rehearing.

In these circumstances, and given what he asserts is the importance of the point and the general desirability of the courts correctly applying the law, the father says that discretion should be exercised in his favour to permit him to reargue the one – narrow – point in issue. And, he says, there is no rule of law which requires a litigant to proceed by way of appeal rather than by way of rehearing when both options are legally available – that may be but it does not meet Mr Cronshaw's point which is not that the father should have appealed rather than sought a rehearing but rather that, having elected to pursue his remedy by way of appeal, albeit he elected not to avail himself of the remedy given him by the appellate court in its judgment on the appeal, it was no longer open to him to pursue what is properly to be regard as an alternative rather than an additional remedy.

In his statement dated 19 October 2007 the father sets out at some length his case that he was medically wholly unfit to take part at the hearing on 10 May 2005. Mr Cronshaw says that this is nothing more than an attempt to reargue yet again a proposition which found no more favour with Sumner J on 9 December 2005 than it had previously in various contexts with Wilson J on 26 April 2005, with Bracewell J on 5 May 2005, or with Wall LJ on 6 May 2005 and again on 8 June 2005. The father disputes that any of those judges was in fact ruling on the specific point with which I am concerned, namely his medical fitness to appear before District Judge Roberts in May 2005.

To my mind the more important factor is not whether the father was or was not medically fit to appear before District Judge Roberts but rather the combination of the two other more important factors: his failure even to ask for an adjournment and his election in the first instance to pursue his remedy by way of appeal rather than by application for a rehearing. Let it be assumed that the father was too ill to go to court even for the limited purpose of seeking an adjournment. It is clear from the father's own account in his statement of 19 October 2007 that the problem had not, as it were, blown up just the day before the hearing. So he could have written to the court seeking an adjournment or, as Sumner J pointed out in his judgment (paragraph [87]), asked Dr Pelling to attend for that purpose or instructed a solicitor. He did none of these things but simply did not turn up. The fact is, as he himself admits, that he decided quite deliberately to act in this way because, as he puts it in his statement, although

"with the benefit of hindsight it may have been better to have formally applied for an adjournment … it was felt to be a futile exercise given that every judge at every level was evidently doggedly bent on saving the 5-day trial fixture."

As if his meaning was not clear enough, the father felt the need to add the observation that "I trust that a more rational and detached approach can now be taken to the medical circumstances that existed at the time."

If what the father had been seeking was a general re-opening of the matters decided by District Judge Roberts, I would in these circumstances have unhesitatingly refused to exercise discretion in his favour. Having chosen simply to stay away from the hearing, having elected to pursue a remedy by way of appeal, and having then chosen not to satisfy the condition imposed by the Sumner J as the price to be paid for achieving his objective, the court would be entitled to say, 'Enough is enough. The father has only himself to blame for the predicament in which he now finds himself. There must be an end to this litigation.' But that is not, of course, what the father is seeking. Wisely, he has chosen to proceed on a much narrower front. Not without misgivings, I have to confess, I have decided that it is possible and appropriate to exercise discretion in his favour, because (a) he confines his endeavour to a single ground of challenge and (b) he has demonstrated, as I have found, that on this point the District Judge was plainly wrong. In my judgment, it would not be just or right to allow this error to remain uncorrected.

Accordingly, there is, in my judgment, no jurisdictional bar to my making the various orders which I have indicated I propose to make.

Conclusion

I invite the father (no doubt acting by Dr Pelling for this purpose) to draft an order to give effect to this judgment. That draft should then be sent (at the same time) to the mother's advisers and to me. If the parties are unable to reach agreement as to the appropriate form of the order, I shall settle it myself.

Publication and anonymisation

This judgment deals with at least one point of some general importance. It seems to me appropriate that the judgment should be handed down in public, which is what I propose to do. I have considered whether the judgment should be handed down in anonymised form. For very much the same reasons as commended themselves to me in Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899, at paras [53]-[56], I take the view that, although this judgment should be handed down in public, the parties should remain anonymous.

The parties' responses to the draft judgment

The draft of paragraphs [1]-[93] of this judgment was sent to the parties on 8 September 2008 (in fact it was sent on 6 September 2008 but that was a Saturday and the first working day thereafter was 8 September 2008). The draft was accompanied by the usual rubric inviting lists of "typing corrections and other obvious errors." It also, as appears from paragraph [92], invited the father to draft an order to give effect to the judgment. The parties' responses to these entirely routine and unexceptionable requests were unusual and unhelpful and have caused yet further delay.

On 10 September 2008, Mr Cronshaw responded to the effect that he had no observations to make in respect of the draft judgment.

On 16 September 2008 I was sent a six page "submission" by the father explicitly inviting me to "reconsider" my decision as set out in paragraph [26].

On 18 September 2008 I was sent a further six page document by Dr Pelling entitled "corrections/amendments of the draft judgment … as proposed by Dr Pelling". At the same time Dr Pelling sent me a message saying that he

"would prefer, if that is acceptable, to have the judgment returned with any revisions in the light of the parties' proposals before drafting the order."

I responded on 22 September 2008 saying that:

"I would prefer to have a draft order at this stage, as I asked, and without waiting for the judgment to be finalised."

On 25 September 2008 Dr Pelling submitted a draft order.

On 29 September 2008 (by which date there had still been no response of any kind from the mother) I sent the parties a message saying that I would like to hear as soon as possible from the mother and those representing her with (i) any corrections to the draft judgment, (ii) any comments they might wish to make on the various, corrections, alterations and additions to the judgment proposed by the father and Dr Pelling and (iii) any comments they might have on the draft order prepared by Dr Pelling. On 7 October 2008 the mother responded, indicating that she wished to have a further seven days to comment. That further period having passed without any further communication from the mother, my Clerk sent a 'chaser' on 20 October 2008. This prompted a response from the mother on 24 October 2008 indicating that she would be in a position to finalise her comments "within the next week." In the event it was not until 5 November 2008 that I received the mother's comments and 8 November 2008 that I received her proposed amendments to the order as drafted by Dr Pelling.

Corrections

The father and Dr Pelling raised a number of points which, on any view, went far beyond the "corrections" contemplated by the rubric.

So far as the matters raised by the parties were within the proper ambit of the corrections contemplated by the rubric I have considered them and, where appropriate, have, in the usual way, incorporated them silently in the relevant places in paragraphs [1]-[93] above. I say nothing more about them, except to point out that it is neither the obligation nor the practice of judges to explain why they have or (as the case may be) have not incorporated all the suggested "corrections" in the final approved judgment and to observe that what a litigant perceives as some "error" requiring "correction" may well, in the judge's mind, be no such thing.

So far as concerns paragraph [39], Dr Pelling suggested, and the mother agreed, that the period which the parties should have to reach agreement as to the drafting of the Deed ought to be three months rather than the one month I had suggested. I am content with this. Dr Pelling also suggested, and again the mother agreed, that rather than necessarily involving conveyancing counsel in the event of any disagreement, however minor, provision should be made to enable the parties to request the court to settle any outstanding points of dispute if the Deed was otherwise "substantially agreed." Again, I am content with this. Paragraph [39] should accordingly be read with these adjustments in mind. I emphasise, however, that I envisage the court's role as being confined to the resolution of narrow points of detail within the context of a draft Deed which is otherwise in substantially its final form. Litigants are not entitled to expect the court to embark upon tasks more appropriate to conveyancing counsel.

In this connection I should record that the mother, in her comments dated 5 November 2008, said that she was prepared to draft the Deed but added that, in the light of the tax benefits or advantages that Dr Pelling had raised on behalf of the father, it might be more appropriate for the father to prepare the draft Deed so that he is able to take advantage of those benefits. No doubt the father will indicate whether he would wish to avail himself of the opportunity to prepare the draft Deed or whether he would prefer the mother to do so as she has offered.

It will be recalled that in paragraphs [40]-[41] I considered the father's claim, conceded by the mother, that interest accruing on the £220,000 should be payable to him. There was no corresponding claim to interest in relation to the other sum of £20,000, but Dr Pelling seeks the insertion in the order of such a provision, seemingly on the basis, as the father put it in his "submission", that "under the Quistclose principle interest earned on it would belong to me". The mother, in her response, concedes the general point but raises her concern that the interest may be rather difficult to calculate when monies are deposited in a current account which does not provide for interest, and may involve interest calculations on small sums of money for very short periods of time. She adds "I can deposit the sum in an interest bearing account, but I will need to transfer sums to a current account, from time to time, which do not attract interest." There will, in my judgment, be no difficulty if any sums placed in a current account are kept there for the shortest possible periods, consistent with the mother's ability to deploy the monies in the manner contemplated by the order. Her obligation is to account, in the manner prescribed by the order, for "any interest that may have accrued"; her obligation to keep the unspent monies in an interest-bearing account does not require that every penny has at all times to be kept in such an account if the practicalities of applying the monies require the use, for short periods and in relation to small sums, of a non interest-bearing current account.

So far so good.

But so far as concerns the other matters raised by the father and by Dr Pelling the position is very different and, in my judgment, most unsatisfactory. With only one exception, none of them involved any matter which it was said I had not covered or which it was said amounted to a material omission; nor was it suggested that there was any alleged deficiency in my reasoning process or any genuine query, ambiguity or lack of clarity arising on the judgment: see Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531, at para [50], and Re M (Children), ZM v JM [2008] EWCA Civ 1261 at paras [37]-[38]. What, quite nakedly, I was being asked to do was to reconsider my judgment on various points, and in circumstances, moreover, where there was, in my judgment, no proper basis for the request.

In this connection I wish to draw attention to the observations of Smith LJ in Egan v Motor Services (Bath) Ltd (Note) [2007] EWCA Civ 1002, [2008] 1 WLR 1589, at paras [49]-[51], observations which, in my judgment, are as much applicable to cases in family courts as to cases in other courts:

"[49] I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgment has been provided, to ask him to reconsider his conclusions. It is a growing practice and in my view it should happen only in exceptional circumstances.

[50] The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge's eye. It is also to give the parties the opportunity to attempt to reach agreement on costs and to consider whether they wish to appeal. Consideration of such matters before hand down can save costs. Circulation of the draft is not intended to provide counsel with an opportunity to reargue the issues in the case.

[51] Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance. Those circumstances might be, for example, where counsel feels that the judge had not given adequate reasons for some aspect of his/her decision. Then it may be appropriate to send a courteous note to the judge asking him/her to explain the reasons more fully. By way of further example, if the judge has decided the case on a point which was not properly argued or has relied on an authority which was not considered, the appropriate course will be to ask him/her either to reconvene for further argument or to receive written submissions from both sides. Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent."

The exceptional circumstances referred to by Smith LJ do not, in my judgment, exist here.

Amendments proposed by the father or Dr Pelling

The "amendments" proposed by the father or Dr Pelling (I use Dr Pelling's expression) fall into four groups: the first relating to paragraphs [6] and [86], the second to paragraph [38], the third to paragraphs [26] and [48]-[49], and the fourth to paragraph [55]. To the extent that it is appropriate to deal with them I shall do so in turn. But my conclusion, at the end of the day, is that there is nothing in any of these matters which either justifies let alone requires me to change any of my views as I had set them out in the draft judgment. To repeat, the exceptional circumstances referred to by Smith LJ do not, in my judgment, exist here. The father and Dr Pelling are simply seeking, impermissibly, to reargue certain issues; they are doing what, as Smith LJ has pointed out, should not be done.

Amendments proposed by the father or Dr Pelling: paragraphs [6] and [86]

Dr Pelling objects to the way in which I have expressed myself in paragraph [6] and to some of the words I have chosen to employ in paragraph [86].

In relation to paragraph [6] of the judgment Dr Pelling says:

"In fairness to [the father] I would ask the reason why the cheque was stopped be stated. It was stopped on Dr Pelling's advice who drew [the father's] attention to the stated purpose of the £20000, for the mother's cost of moving, … , and pointed out that no move of the mother was on the horizon and that of course the problems of the settlement deed etc had not been resolved so the move was not going to take place in the near future. It was not reasonable to pay under those circumstances, especially as the Order made no provision for what would happen to the money if the move was not taking place, and on the mother's record there was real concern it would just be spent improperly and dissipated. It is not fair to [the father] as a businessman of probity to damn him in a judgment as a person who stops cheques when he owes money, which prima facie does not enhance reputation. [The father] cannot publicly reply to such aspersions because of the anonymisation (which does not guarantee that [he] will not become known to some people as the A in question)."

I am content to record Dr Pelling's comments but they hardly seem to assist the father. The facts as I set them out in paragraph [6] are not disputed; nor could they be. The fact is that the father stopped the cheque in December 2006, at a time when his appeal against the District Judge's order stood dismissed, when the stay had long since been lifted and long before he made his application to the court on 15 June 2007. The fact is that when he stopped the cheque he owed the money. The fact, as now appears, that the father acted on the advice of Dr Pelling can hardly assist him; it merely throws an interesting light on Dr Pelling's approach to orders of the court.

In relation to paragraph [86] Dr Pelling says:

"Bearing in mind §66 I should be grateful if the words "arrogant" and perhaps also "disdain" could be removed, since the written submissions were drafted by me with some input and final approval by [the father]. My personal approach to procedure is normally to take a strict view of applying the rules of court, which some FD judges have little respect for [I shall not name names but I have heard at least 2 judges boast how they can get round the rules]. So I do not disdain the court and its procedures and I do not accept my approach is one of arrogance. It was rather polemical against Mr Cronshaw but qua advocate I like to make points forcefully. Here, the rules of court (as in fact Munby J now holds) did not prevent exercise of jurisdiction and the issue was one of discretion. I always knew and accepted that to invoke CCR O.37 R.2 or RSC O.35 R.2 in the way we did here was pushing it, knowing the sort of situation where the power under those Rules would normally be exercised. But I felt that the 21-18 point was so important, especially with the case law in apparent conflict, that it was wrong not to allow the Court to decide it. I don't think in general that one should prevent development of the law and prevent judgment being given on interesting and important points of law, by invoking procedural points when the point is one of discretion and not strictly prevented by a rule of court. I don't find it attractive when members of the legal profession behave like that since, and I suppose this has something to do with my academic background, one would hope that they should rather honour the Law and welcome its development, and work to remove uncertainty and inconsistency. I am sorry if my approach appeared arrogant or disdainful; I can only say that was not intended and that normally I would not attempt to exploit CCR O.37 R.2 etc in the way done here (eg. to get a complete rehearing)."

I gave careful thought to my choice of words when preparing the draft judgment and nothing said by Dr Pelling gives the slightest reason for changing them. I remain of the view that the father's conduct was as I described it. And if and to the extent that the father acted on Dr Pelling's advice, and if in those circumstances the words are understood by Dr Pelling as reflecting on his own conduct, then so be it.

Amendments proposed by the father or Dr Pelling: paragraph [38]

In relation to paragraph [38] Dr Pelling says:

"I do not consider this ostensibly even-handed approach is fair to [the father] on the evidence, bearing in mind his undisputed evidence" – reference then being made to the father's witness statement of 15 June 2007 – "If [the father] is correct as a matter of strict legal theory in maintaining that the mother should have drafted a deed first then the blame is plainly at the mother's door for not doing so, and ignoring an express request to her Solicitors so to do. This has considerable bearing on costs (which [the father] intends to apply for on the occasion of handing down, and submissions will be made on that occasion in the light of the Judgment) and I would respectfully suggest that as part of the judicial duty to make relevant findings of fact and law, Munby J must decide the "technical issue as to who, in strict legal theory, had the obligation to make the first move". I do so ask."

I see no reason to alter anything I said. My findings, to the extent that I felt it either necessary or appropriate to make findings, were based on the totality of the evidence before me. I saw no need in the circumstances, and still see no need, to decide what I deliberately described as a "technical issue", the resolution to which was not, in my judgment, necessary in order either to do justice between the parties or to determine the proper way forward. I do not accept that what Dr Pelling calls "the judicial duty to make relevant findings of fact and law" (emphasis added) obliges a judge to decide each and every point raised by one or other of the parties irrespective of its relevance to the outcome. I do not accept that I "must", as Dr Pelling asserts, decide this particular issue, which, to repeat, was an issue which I took the view – and I remain of this view – it was not necessary to decide either to do justice between the parties or to determine the proper way forward.

Amendments proposed by the father or Dr Pelling: paragraphs [26] and [48]-[49]

The father, as I have said, has sent a six page "submission" explicitly inviting me to "reconsider" my decision as set out in paragraph [26]. I say "the father", because that is the source of the document, but again, as it seems to me, it bears all the signs of Dr Pelling's hand.

It would wholly defeat the principles underlying what Smith LJ said in Egan if I were to set out the whole of this document or to deal in detail with all the points made by the father. I shall focus on what appear to the salient points. The father asserts that my approach as set out in paragraph [26], and in particular my reference to his "attempt to re-write the order", indicates that I was treating time as being of the essence of the order and that I was therefore treating any variation of the date as a substantive variation going to the heart of the order. He submits that time was plainly not of the essence and therefore in the light of authority (reference being made to the Supreme Court Practice 1999, to the County Court Practice 1997, to two different editions of Duckworth's Matrimonial Property & Finance, and to Masefield v Alexander [1995] 1 FLR 100) I had inherent jurisdiction to enlarge time. Therefore, he submitted, I had discretion to enlarge time.

Acknowledging that how that discretion should be exercised depends on all the facts and circumstances, the father asserts that:

"There plainly is justification for deferring the original date because, firstly, the purpose of the £20000 was for the cost of moving to the settlement property, but it has been accepted that the latter is now deferred long past the original date of 27 July 2005 for payment of the settlement monies. Judgment §39 accepts that I am not required to pay the £220000 until execution of the trust deed. The two limbs of DJ Roberts Order plainly went together in time (the respective dates are 29 July 2005 and 27 July 2005 for Paras.1 and 2).

Further, the Judge has clearly accepted that the delay in implementing Para.2 of DJ Roberts's Order is very much at the Mother's door (Judgment §38)."

He continues:

"There is no rational reason why my £20000 should be paid at a time when it could not have been used or cannot be used. Under the Act it must be a payment to the Mother for the benefit of the child. DJ Roberts herself said at §18 of her judgment and in the wording of her Order that the money was to be paid "for the benefit of the child". Had I paid on 29 July 2005 it would have been of no benefit whatsoever to N to the present day: for the Judgment [Munby J] accepts that the money must be utilised with receipts for the specific purpose of moving, and not for any other purpose. If the money can only benefit the child at a future date, contingent on a future event, then logically, and I suggest as a legal requirement under the Act, the money should only be required to be paid at that date or very near it.

… . If the money were paid over now, what does the Court expect to be done with it, what guarantee is there that it would be sensibly invested () and what is there to stop the Mother dissipating it long before moving? Why should I be deprived of the use of my capital for a lengthy period during which it is not required for the purpose stated by the Court? Danger of dissipation is real: see my Witness Statement No.12 of 19 October 2007 concerning the Mother's financial reliability, trustworthiness etc – and if the money were dissipated then why should I (and indirectly N, who is nearly always aware of litigation) be burdened with litigating to recover under Quistclose? I accept that the Mother will most likely use the money for its proper purpose if it is paid at the proper time, when the Settlement is effective and she actually moves."

Conceding that if the court changes the date at which payment falls due then statutory judgment interest will only run from that date, and that it might be considered unjust if when the £20,000 was eventually paid for the proper purpose, its value had been eroded by inflation, but asserting that if the mother remains entitled to £20,000 plus interest at the judgment rate since 29 July 2005 she will receive a considerable windfall benefit well over the rate of inflation, the father accordingly suggests what he calls a just solution: the £20,000 should be made payable when contracts are exchanged in furtherance of paragraph 2 of the order, but enhanced by index-linking to the General Index of Retail Prices (All Items) so as to preserve its July 2005 value in real terms, this being, he says, more favourable to the mother and N than use of the Consumer Price Index.

I see no reason to change anything I said. I was not treating time as being of the essence of the order. I was merely deciding, to repeat, that "in the circumstances" I could see "no justification for what the father seeks." That was my view and, despite everything now said by the father, remains my view.

In relation to paragraphs [48]-[49] Dr Pelling wrote:

"If the Judge accedes in whole or part to the separate submission made by [the father] in relation to the date of payment of the £20000, then it would appropriate to reconsider the charging order issue and [the father] would wish to make submissions accordingly. Further, it seems implicit in the current §49 that the Judge is not actually expecting or ordering [the father] to pay the £20000 over now, long prior to the mother actually moving and needing the money, otherwise he would not postpone the mother's right to enforce payment. But that amounts to giving her a form of security for the payment when there is not a scrap of evidence that [the father] is unable or unwilling to pay the £20000 when the time comes for the mother to move. As explained supra he was even going to pay in December 2006 when on my advice he stopped payment precisely, and only, for that reason – that the mother was not moving and did not have any need of the money then for its specified purpose.

There is no general principle that the payee in Schedule 1 is entitled to security long in advance of payment being appropriate. There would have to be evidence of risk that the payor would default. There is none in this case. I would respectfully ask that if the charging order is going to stand then the Judgment should explain the evidential basis that justifies this security. It should be noted that District Judge Roberts did not see fit to order security."

Dr Pelling added:

"That [the father] has paid his obligations in costs, and why he did not pay the £20000 at the time, is important on the issue of whether the mother is entitled to security now, when major changes have been approved to the original DJ Roberts Order, and payment is now not yet due."

Having rejected the father's submissions in relation to paragraph [26], there is little I need to add. The fact is that the father has not paid a sum which was to be paid as long ago as 29 July 2005, just as it is the fact that he stopped the cheque in payment of the money in December 2006. The mother is entitled in principle to a charging order; the fact that I am persuaded that enforcement of the charging order should be postponed is no reason for denying her that remedy and the security it provides.

Amendments proposed by the father or Dr Pelling: paragraph [55]

In relation to paragraph [55] Dr Pelling wrote:

"No, she is NOT entitled to security until such time as the father has to pay over the £220000, save there be proper evidence that justifies the court ordering such security. District Judge Roberts did not order such security, nor was it asked for then. The father's stance over payment of the £220000 has been wholly vindicated, now that it has been ruled that it is not to be paid to the mother but to trustees after or on execution of the appropriate trust deed. There is, once again, not a scrap of evidence that [the father] would default. [The father] has paid all legal obligations by way of maintenance to N, and has settled by agreement all costs orders in favour of the mother … He has paid and continues to pay all obligations in respect of his 3 older children. He acted on reasonable (and now vindicated) advice that he should not pay over the £220000 without the proper mechanisms and security in place. It would be wrong in law, and unprincipled, to order security by way of injunction "just to be on the safe side".

Further, the property in question is currently let on assured shorthold tenancies, so the proposed injunction is too wide and would prevent the further granting of such leases, thereby depriving the father of his income."

Save as to the last point, with which the mother agrees, and which I am content to see reflected in the order, I do not agree with what Dr Pelling says. This is a case, it must be remembered, where the father has defaulted at least in relation to the £20,000 and where, as I recognised in paragraph [55], the mother, although not entitled to a charging order in relation to the £220,000, in principle was entitled to seek the appointment of a receiver, albeit that was not something which in the circumstances seemed to me to be "appropriate" given that it would serve only to soak up more resources. In the circumstances it seemed to me, and it still seems to me, that the appropriate mechanism, best holding the balance between the father and the mother, was an injunction.

The order

Dr Pelling, as I have said, produced a draft order on 25 September 2008. The mother responded with some minor drafting points on 8 November 2008 in addition to the points which she had earlier raised on 5 November 2008. I am grateful to both of them for their assistance. The order in the form in which I have settled it, making some adjustments to ensure that it gives effect to my intentions, and as it will now be sealed by the court, is set out in Appendix 2 below. It will be dated 6 January 2009.

APPENDIX 1 – the father's proposed amendments to the order of District Judge Roberts:

"1. Clause 1 of the Order of 10 May 2005 be amended to read as follows:-

"1. Within 14 days of exchange of contracts on the purchase of the property referred to in Clause 2 of this Order the Father shall pay to the Mother for the benefit of the Child N the sum of £20000 to be used for the costs of moving to and furnishing of the said property. The Mother shall account to the Father for the use of this sum and any amount used for purposes other than those specified in this Clause of this Order, or not spent or not duly accounted for by authentic receipts within 4 months from the date of payment of the sum, shall be returned forthwith to the Father."

2. Clause 2 of the Order of 10 May 2005 be amended to read as follows:-

"2. The Father shall settle or cause to be settled on trustees for the benefit of the Child N the sum of £220000 which the trustees shall use to purchase a property to house the said Child and the Applicant Mother until the Child attains the age of 18 or completes full-time education including tertiary education to first degree level, whichever be later, saving that in any event the Termination Date of the settlement (that is, when the obligation to house ceases) shall absolutely be not later than 31 July 2022 {amend to 2023}. The following supplementary provisions shall apply:-

(a) The Settlor Father's interest in the property purchased shall be whatever percentage of the gross purchase price the sum of £220,000 represents.

(b) On the Termination Date of the settlement the property shall be sold forthwith on the open market at the best price reasonably obtainable and the Father's interest in the proceeds of sale paid to him forthwith by the trustees.

(c) The Deed of Settlement shall be drawn up by the Applicant Mother at her own cost and the terms thereof shall be agreed if possible by the Parties, with Liberty to Apply to the Court. If the Mother does not provide a Deed to the Respondent Father within 6 months of the date of the Order, then this Order shall cease absolutely to have effect and no extension of time shall be permitted.

(d) Within 1 month of the date of execution of the Deed of Settlement, the Settlor Father shall pay or cause to be paid to the trustees the aforesaid sum of £220,000. Pending purchase of a property the trustees shall immediately on receipt deposit the sum in a suitable account to earn interest and the interest shall belong to the Settlor absolutely and be repaid to him monthly on all funds not yet utilised for property purchase.

(e) If a property is not purchased within 12 months of the payment of the said sum of £220000 to the trustees then the Settlement shall absolutely terminate and the sum of £220000 with all interest accrued shall be repaid forthwith to the Settlor Father.

(f) There shall be 3 trustees, one chosen by the Father, one by the Mother, and one to be agreed or in default of agreement the Court shall select the third trustee in such manner as it thinks fit. The trustees need not act unanimously but may act by a majority.

(g) Subject to (a) supra the Applicant Mother may augment the £220,000 to be provided by the Settlor Father by providing additional funds to the trustees so that a property of greater value may be purchased. Such additional funds must be paid to the trustees within 1 month of the date of execution of the deed of Settlement. Her interest in the property shall be whatever percentage of the gross purchase price her contribution represents.

(h) For the avoidance of doubt, neither the Applicant Mother nor the Settlor Father shall be trustees of the Settlement."

3. A new Clause 5 be added to the Order of 10 May 2005 as follows:-

"5. Liberty to Apply as to the implementation of this Order.""

APPENDIX 2 – the order made on 6 January 2009:

"IT IS ORDERED THAT:

Schedule 1 Children Act 1989

1. The Order of District Judge Roberts made on 10 May 2005 be amended in Clauses 1 and 2 and a new Clause 5 (liberty to apply) added, to read as follows:

1. The Respondent Father shall pay to the Applicant Mother by 29 July 2005 for the benefit of the child N the sum of £20000 for the cost of moving to the settlement property referred to in Paragraph 2 of this Order. The Mother shall provide a proper account of how the £20000 has been applied together with receipts for all items and services purchased therewith costing more than £10, and any balance not so accounted for within a reasonable time, for the cost of moving, shall be returned to the Father together with any interest that may have accrued following the payment of the sum of £20000 to her.

2. The Father shall settle or cause to be settled on trustees for the benefit of the child N the sum of £220000 which shall be used to purchase a property to house N and his Mother until N reaches the age of 18 or completes tertiary education to 1st degree level (which shall include a single gap year if taken, either between completion of secondary education and commencing university or between completion of 1st degree and taking up employment), whichever is the later. The Father's interest in the property purchased shall be whatever percentage of the gross purchase price the sum of £220000 represents. The following supplementary provisions shall apply:-

(a) There shall be 2 trustees, one appointed by the Father and one by the Mother. The trustees need not be professional persons. Neither the Father nor the Mother shall be a trustee.

(b) The Deed of Settlement ["the Deed"] shall be agreed if possible between the Parties within a period of 3 months from the date of this Order. If the Deed is not agreed within that period then either Party may request the Court either:

i) if the Deed is substantially agreed, to settle the outstanding points of dispute which should be set out in a schedule accompanying the request; or

ii) to direct that the matter be referred to one of the conveyancing counsel of the Court to settle a proper instrument to be executed by all necessary parties.

Each Party shall bear his or her own costs specifically incurred in relation to the drafting of the Deed, including any costs already incurred, save that if the matter is referred to conveyancing counsel of the Court then each Party shall pay half of the costs of that conveyancing counsel.

(c) The obligation of the Father to pay over the sum of £220000 shall not arise before the execution of the Deed and shall otherwise be in accordance with the terms of the Deed. After payment and pending application of the sum for the purchase of the property, interest earned on the sum shall belong to the Father.

(d) The Deed shall include provision for the Mother to buy out the Father's interest in the settlement property at a price to be agreed or determined by independent joint valuation, either during the term of the Settlement or at its conclusion, but subject to appropriate protection to the Father from being bought out at anything other than the full market price or at a time when the market is depressed.

(e) The cost of administering the Settlement, including costs and expenses properly incurred by the trustees, and any taxes arising during the term of the Settlement or at its conclusion, shall be borne by the Parties in proportion to their respective contribution monies paid to the trustees to establish the Settlement and purchase the settlement property.

5. Liberty to Apply as to both implementation and timing of the above Order.

2. The Applicant Mother's application for a variation of Paragraph 2 of the Order of District Judge Roberts dated 10 May 2005 is hereby dismissed.

Charging Orders Act 1979

3. The Applicant Mother's application for a charging order in relation to … is dismissed.

4. The Applicant Mother's application for a charging order in relation to … is granted to the extent of securing the payment of the sum of £20000 ordered by Clause 1 of District Judge Roberts's Order of 10 May 2005 (as now amended) but dismissed in relation to securing the sum of £220000 referred to in Clause 2 of that Order, and accordingly the interim charging order made by District Judge Redgrave on 2 May 2006 is hereby made final to the extent of the sum of £20000 only, and set aside in relation to the sum of £220000, and therefore:-

IT IS ORDERED that the beneficial interest of [the father] in … do stand charged with the payment of £20000 and any judgment interest due pursuant to Clause 1 of the Order of District Judge Roberts made on 10 May 2005 (as amended).

5. The Charging Order made in Clause 4 of this Order shall not be enforced by the Applicant Mother prior to the exchange of contracts on the purchase of the property under the Settlement ordered by District Judge Roberts by Clause 2 of her Order of 10 May 2005 (as amended).

Receiver

6. The Applicant Mother's summons for the appointment of a Receiver by way of equitable execution is dismissed.

Injunction Order

7. The Respondent Father is prohibited, until further Order, from dealing with the land situate at … saving that he may grant and terminate assured shorthold tenancies (within the meaning of the Housing Act 1988 as amended) thereof.

Other

8. All financial matters, including by way of implementation timing and enforcement, in and within Case No.FD03P02333, shall be reserved to Mr Justice Munby if available, and he shall not be treated as being unavailable if on circuit or sitting in another Division of the High Court.

Costs

9. All questions of costs are reserved to Mr Justice Munby to be dealt with in accordance with the following directions:

(i) The Applicant Mother and the Respondent Father shall each by 4pm on 16 January 2009 file and serve (and at the same time send to Mr Justice Munby by email to … ) a succinct statement (not exceeding four sides of A4 paper) setting out (a) precisely what order for costs (if any) they are seeking and (b) the reasons why they say such order should be made;

(ii) The judge will decide what order(s) for costs should be made following such brief oral submissions as either party may wish to make at a hearing before the judge at 10am on 20 January 2009."

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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> G v A [2009] EWHC 11 (Fam) (20 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2009/11.html Cite as: [2009] 1 FCR 606, [2009] 1 FLR 1442, [2009] Fam Law 389, [2009] EWHC 11 (Fam), [2009] WLR 1621, [2009] 1 WLR 1621

		Royal Courts of Justice Strand, London, WC2A 2LL Draft sent to the parties on 8 September 2008 Approved judgment sent to the parties on 6 January 2009
		Handed Down In Public On 20 January 2009