G v A (No 2) (Schedule 1 settlement of property)

In proceedings under Schedule 1 to the Children Act 1989, the court must act compatibly with the child’s Convention rights and give effective priority to securing the child’s welfare within the statutory scheme. Where payment ordered for the child’s housing is overdue, the court may set a specific payment date, preserve assets, order disclosure of means and, where justified, retain or require surrender of a passport in aid of enforcement. Those powers must be exercised proportionately and by reference to the course most likely to secure the child’s housing. A passport must not be detained indefinitely as a free-standing enforcement measure.

The mother applied for financial provision for the parties’ child under Schedule 1 to the Children Act 1989. In 2003 the father had been ordered to provide £220,000 towards a property for the child, but implementation was repeatedly delayed. A later order required payment by noon on 21 March 2011. The father sought further time, the setting aside of that payment date, the return of his passport and other relief. The mother sought enforcement measures, including freezing and disclosure orders. The central issues were whether the payment obligation had arisen, whether the court could grant the proposed enforcement orders, and what approach best protected the child’s housing interests.

1. Default and payment date. The father was in default because the obligation to provide £220,000 arose at noon on 21 March 2011 under the order of 11 February 2011. The court had power, in the circumstances of prolonged and unsatisfactory delay and an identified purchase, to specify that payment date. The application to set aside that part of the order was refused.
2. Enforcement powers. The court had power to make a freezing order and to require disclosure of the father’s means. Payment was overdue, assets needed to be preserved for enforcement, and the mother was entitled to know what assets were available. Existing and proposed charging orders were insufficient because they might not be readily realisable within the child’s timescale.
3. Passport. The decision in B v B (Injunction: Restraint On Leaving Jurisdiction) [1997] 2 FLR 148 established that the court could require a person to remain within the jurisdiction in aid of established procedures for disposing of proceedings and enforcing judgment. The power under s.37(1) of the Senior Courts Act 1981 had to be read in the context of the Human Rights Act 1998 and the Convention rights of all concerned. The court could not detain the father indefinitely as a free-standing enforcement procedure.
4. Discretionary response. The appropriate approach was the one most likely to produce the funds required for the child’s housing. Although the passport had initially been seized, its temporary release was sanctioned because continued retention was likely to reduce the prospect of voluntary payment by the revised date. A limited freezing order, disclosure order and penal notice were made, and the matter was adjourned to 13 April 2011.
5. The father’s application for time in lieu of contact was refused. His application concerning the child’s passport was not determined because no formal application had been made. Costs were reserved. The judge also identified serious potential conflicts in the trustee’s dual role as trustee and advocate and reserved the question whether that position remained tenable.

The judgment records earlier proceedings and orders in the same litigation, including decisions of the High Court and Court of Appeal. No appeal from the order of 11 February 2011 had been lodged. The present judgment determined the mother’s enforcement applications and the father’s applications for further time and related relief.