G v A (No 4) (Schedule 1 settlement of property)

Where conduct by trustees or others foreseeably obstructs implementation of an existing child-maintenance property order, the court may make practical directions to secure completion without further delay. Those directions may authorise a sole trustee to act, protect good-faith acts by indemnity, regulate communications with relevant third parties, and provide a mechanism for urgent signatures or further directions. In unusual circumstances, the court may also require agreement on the appointment of a replacement trustee and determine the issue if agreement is not reached. A parent’s objections to the suitability of a proposed property may cease to be determinative where continued intervention has impeded implementation and the court considers that the responsible trustee’s and resident parent’s views should prevail.

This was the fourth judgment concerning implementation of a 2005 order requiring the purchase of a trust property for a child to live in. Earlier orders made on 19 and 22 September 2011 were followed by an unsuccessful application by the father and one trustee for permission to appeal; the Court of Appeal refused permission on 18 November 2011.

The mother identified a further property. The remaining trustee considered it suitable, but communications by the father and the other trustee with the trust’s solicitors, estate agents and bank created uncertainty about who could give effective instructions. The court was asked to make orders enabling the purchase to proceed, to address the trustees’ positions, and to regulate further interference.

1. Orders facilitating implementation. The court determined that a property should be purchased for the child without further delay. Conduct by the father and Dr Pelling, whether intentional or not, could foreseeably deter the smooth completion of the purchase. Orders assisting Mr Swycher were therefore necessary.
2. Sole trustee. Mr Swycher was authorised to act alone and to take all necessary and incidental steps to complete the purchase. The bank, solicitors and HM Land Registry were authorised to accept his instructions alone. The trust was required to indemnify him and persons acting on his instructions against liability for acts carried out in good faith.
3. Urgent implementation and communications. Provision was made for the District Judge of the Day to sign documents urgently if required, and Mr Swycher was given liberty to seek further directions. The father and Dr Pelling were prohibited from communicating with the seller, agents, trust solicitors or bank concerning the proposed property, subject to the father remaining free to communicate with Mr Swycher as trustee.
4. Property suitability and trusteeship. The father had, in effect, lost the right to have a determining view on the property. In the circumstances, the views of the mother and Mr Swycher were to prevail. After purchase, the parties were to agree whether a second trustee should be appointed; failing agreement, the court would determine the issue, because any replacement trustee would need to act consistently with the trust’s objectives.
5. Dr Pelling was discharged as a party. The father and Dr Pelling were ordered to pay £215.20 costs, and the trust was to reimburse Dr Pelling £118.45 after those costs had been paid.

1. Court of Appeal: on 18 November 2011 refused the father’s and Dr Pelling’s application for permission to appeal the orders made on 19 and 22 September 2011.
2. High Court (Family Division): made further orders authorising the remaining trustee to act alone and facilitating completion of the trust-property purchase.