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

Where a court has made a financial order for a child’s benefit, the court may impose a fixed date for payment to secure effective implementation. A trust mechanism is subordinate to the objective of performing the order and does not permit indefinite delay. The court may give further compulsory directions and, if necessary, use its powers under the Trusts of Land and Appointment of Trustees Act 1996 or its inherent jurisdiction to secure performance. The court should adopt a pragmatic and proportionate approach, while recognising the responsibilities of trustees and the need to preserve the substance of the original order.

The mother sought enforcement of an order made in 2005 requiring the father to pay £240,000. The order comprised £20,000 payable absolutely and £220,000 to fund property held on trust for the parties’ child under Schedule 1 proceedings. Implementation had been delayed through prolonged litigation, appeals, negotiations and disagreement about the trust deed.

The trust deed had finally been agreed, but the father maintained that it could not be executed until he had assembled the required funds. The mother sought directions enabling the property purchase to proceed and requiring payment within a fixed period. The central issue was whether the court could and should impose such a binding timetable to secure performance of the existing order.

1. Enforcement order. The court ordered the father to pay £220,000 to the trustees, subject to the mother contributing £130,000 by noon on 21 March 2011. The £20,000 remained payable under the mechanism previously prescribed by the Court of Appeal.
2. The court rejected the submission that it lacked power, or should not exercise power, to impose a fixed payment obligation. Without a fixed date there was a substantial risk of further drift. Further delay was unconscionable, detrimental to the child’s welfare and inconsistent with the court’s duty to ensure that its orders were performed.
3. The fact that the trust deed was ready to be executed did not prevent the court from fixing the father’s payment obligation. The court rejected the suggested circularity that the deed could not be executed until payment had been made. The deed was to be signed forthwith and the trustees’ joint account opened to receive the funds.
4. The primary obligation was performance of the order made for the child’s benefit. The trust was a mechanism for achieving that objective, rather than an end in itself. If unreasonable delay or obstruction continued, the court could consider directions under the Trusts of Land and Appointment of Trustees Act 1996 or exercise its inherent powers to secure performance.
5. The court declined, at that stage, to direct the more radical measures sought by the mother, including processing the proposed purchase or authorising execution by another court officer. It indicated that such measures might be reconsidered if obstruction continued. It also did not exclude a future adjustment to the lump sum if necessary to achieve the effect of the original order.

Not an appeal. The judgment records earlier orders and appellate adjustments in the same litigation, but no appeal from the present decision.