England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th February 2011

His Honour Judge Horowitz QC (sitting as a Judge of the High Court) :

1. This is my judgment in a series of applications brought by the Applicant mother to enforce effective payment and implementation of an Order for £240,000 made against the respondent father in consolidated s8 and Schedule 1 proceedings heard together by District Judge Roberts at the PRFD in May 2005.
2. The litigation between the parents is now in its 8^th year still displaying the intensity and continuity on which Wilson LJ remarked on 10^th November 2009 at [2009] EWCA Civ 1249 para 3.
3. My own involvement dates from 9 December 2010 when I spent a court day as s9 Judge at the RCJ steering agreement and adjudication on the intended final form of the Trust Deed to give effect to the settlement Order of the District Judge. Having been made aware of various queries raised in regard to my cut and paste consolidation of the travelling draft Deed, I took the opportunity of an existing 5 day fixture in my diary at the PRFD to direct a 1 hour hearing before me on 7 February 2011. I circulated an accompanying Note stating my intention to put this litigation to an end if at all possible.
4. On 3^rd February 2011, the mother appeared before me ex parte at the Milton Keynes County Court to advise me of certain developments since the December hearing. She asked for summary Orders to put into the hands of her camp the purchase of a property she had found which met the parties' agreed criteria including price and location. The father and Dr Pelling, his continuing representative on paper and now nominated presumptive Trustee were, she said, dragging their feet in putting in place everything required to buy the property on the Trust terms ordered by the Court.
5. She had commissioned a survey which described the house as an excellent buy and had a solicitor lined up to act. The vendors who had extended time for a decision were now at the point of losing patience. I considered that it would be unprincipled to make an Order without hearing the father and adjourned over to 7^th, February. I drafted a short Order putting the father and Dr Pelling on notice of what was sought. Both he and father were already well aware of the purchase proposal, the property having been identified to them on 17^th January. A copy of the survey was already in their hands and Dr Pelling, as I was told, had made his own plans to visit that very day.
6. Mother and her litigation adviser appeared before me on 7^th February. The father kept an existing appointment in connection with a charitable activity in Poland. He sent in a note composed the night before but was represented as he has been since July 2005 by his McKenzie friend Dr Pelling. About 2 hours was taken up in further discussion. I considered that the issues raised required the attendance of the father to put his case fully and provide up to date information and so adjourned the application to Friday 11^th. The providential collapse of my list allowed that hearing to extend from 10 am to 3.30 pm sitting through the lunch adjournment.
7. Although I have not taken evidence, in the sequence of hearings I have described, I have had the opportunity to observe both parties through two full court days and hear extended representation on their behalf. I have read their own statements including two full recent memos from the father. Additionally, at both full hearings I acceded to the father's request to address me direct on what he said were the merits of his case and the demerits of that of his former partner.
8. After the parties left Court I spent about 2 hours reading through documents in the box files. I have now downloaded and read a number – but not every one – of the Family Division Judgments of Munby J and Munby LJ, Wall J and Wilson LJ as well as the foundation pair of judgments given by DJ Roberts on 10 May 2005.
9. I have, as I told the parties I intended to do, drafted this judgment over the weekend after giving further full and anxious consideration to this vexing case. My reasons are set out in full and I fear at length because I consider my intensive exposure to the case is not only the most up to date but of sufficient depth to match my own assessment of the parties with that reached by judges in the past, not least Munby LJ. I wish the parties to have as full an explanation as possible of my analysis and where it guides me which may be of further use if the matter returns to be considered by another judge of the Division and, of course, if either party is minded to take my Order to the Court of Appeal.
10. In addition, I feel bound to express my serious concern that this case remains alive and unresolved. The s8 CA proceedings are capped by Munby J's 4 year s91(14) filter imposed on the parents on 25 November 2009 [2009] EWHC 3055 (Fam). I am troubled as a Family Judge that the family justice system has remained unable so far to deliver implementation of this straightforward small/medium schedule 1 Order made the benefit of N for 6 years.
11. Full histories of the litigation to 2009 can be found in the judgment of Munby J [2009] EWHC 1807 (Fam) in the s8 proceedings heard in May 2009 (also reported in the FLR series) and in the schedule 1 proceedings at [2009] EWHC 11 (Fam) decided January 2009. I set out in summary the history relevant to the issues before me between those dates and afterwards:

Background

12. The parties began their relationship in 1996 separating in 2002 when the mother and N went to live with her parents. Father has 3 children by his former marriage. N is the only child of the mother who has never married. N was born in 2001 so he is nearly 10 and would have about a year old when his parents separated.
13. The mother's schedule 1 application was issued on 17 October 2003. The parties also cross applied for residence orders, the father alternatively seeking a shared residence order. 6 days was set aside but the father's non-attendance reduced the hearing to 2 days.
14. Prior to the hearing the father failed to persuade Bracewell J and Wilson J and, it seems, Ward LJ that an operation fixed for 4^th April prevented his presence at the hearing or preparation for it by the filing of up to date evidence. The father declined to file his final evidence for the DJ or indeed communicate at all with the PRFD.
15. The District Judge dismissed the father's application for a residence Order and/or shared residence, directing that N was to live with the mother and enjoy extensive contact including staying contact to the father. That pattern continues. Shared residence was not recommended by the Cafcass officer who reported that the mother was worn down by disputes with the father and the litigation. The DJ referred to documentation put before the Family Division Judge(s) in his application for adjournment which she said contained misrepresentations of the law, was unnecessarily lengthy and repetitive and was full of "uncorroborated and extremely nasty statements" all of which led her to conclude that a shared residence order would be unworkable and by putting the mother under even more stress be detrimental to N' welfare.
16. Presumably following the judgment, the father instructed a psychotherapist, Ms S, who wrote a report dated 15 August 2005 based on sight of the papers, without permission of the Court or without reference or notice to the mother which she considered entitled her to refer the case to Social Services having formed the view without seeing mother or N that she was an imminent and potentially violent danger to her child and, therefore, should not receive prior warning of her referral. This utterly unprofessional and luridly expressed report (which I have read) unsurprisingly led to a complaint to her professional body as Dr M, later the jointly instructed psychiatrist, records, with what result I do not know.
17. Repeated litigation in the High Court from summer 2005 until the s91(14) Order 4 years' later has not disturbed the basic structure by which N spends about 40% of his time with his father and the balance with his mother. Both parents live within travelling distance of N's school.
18. In the financial proceedings begun on the mother's application on 17 October 2003, to provide accommodation for their son, the District Judge renewed existing FLA 1996 non-molestation Orders in favour of the mother, dismissing a cross-application by the father as without merit.
19. In the financial application proper, the DJ found that the father (who was not present and who failed to file further evidence) had failed to make full disclosure including his interest in 2 industrial buildings and was sceptical about the true ownership of a Spanish property he attributed to his father.
20. The mother sought £220,000 on trust to add to her modest savings and I assume a modest mortgage to buy a 2 bedroom flat with garden at a target price of £300,000. As is clear law, such provision can only extend for N's minority or further education or training if so directed. The mother also asked for £20,000 absolutely for the cost of moving.
21. Describing the mother's request as reasonable and necessary on the evidence, the DJ ordered £20,000 to be paid absolutely and the father to settle £220,000 for the purchase of a property to be held to 21 or cesser of tertiary education. No order was made for periodical payments to the mother or for N, the latter head being covered by a £40 assessment by the CSA. Father was also required to pay 50% of N's school fees.
22. It is pertinent to note that although there has been technical adjustment to the form of the Order including the choreography between the lump sum absolute and the trust order in the High Court and amendment of that Order in the Court of Appeal, there has never been an effective challenge to the quantum of payment which remains unpaid in its entirety.
23. The effect is three-fold: first the father has had had the continuing use and benefit of £240,000. Second, when he pays it will be in deprecated currency. Even using the table in 2009 -2010 At a Glance available to me at home, the movement on the Retail Prices Index between January 2006 and April 2009 is from 193.4 to 211.5. Correlatively, from the mother's perspective, the Nationwide house price survey available on line shows a 15% increase so that a property worth £300,000 at January 2006 is valued at December 2010 at £346,000 (346,089) in line with the mother's intended purchase at £340,000 part financed by mortgage – the additional financing cost on her shoulders.
24. The father promptly appealed. A cheque in part payment of the £38,000 he was ordered to pay by Sumner J on 9 December 2005 for security for costs failed to clear. Under that Order, the stay on the DJ's order lapsed and it became due binding and enforceable against the father on 20 January 2006.
25. The father nonetheless achieved an indirect appeal. In April 2006, the mother applied for a charging Order to secure the £240,000. The father cross-applied to amend under the slip rule. Munby J dealt with the proceedings by transfer to himself, the parties were both in delay in complying with directions. Together with Court availability the final hearing was set for November 2007.
26. The case did not conclude, Munby J requiring further submissions. But in the meantime, the father resurrected his application for a residence Order which was only compromised in July 2008, also before Munby J. That compromise which in 16 pages retained the core structure of the 2005 with elaborate provisions for holidays, religious festivals etc was attacked by the father who asserted his disagreement to one term of the Order, a challenge which was rejected in September 2008.
27. In a judgment handed down provisionally for corrections in September 2008, the Court made these changes to the 2005 Order:

i) Munby J refused to defer payment of £20,000 to exchange of contract but for the avoidance of doubt declared that the sum was to be used for moving and furnishing, the mother being further required to account by receipts for all expenditure above £10.

ii) The father succeeded against the mother's opposition in a requirement for two trustees, one per parent, neither necessarily a professional.

iii) £220,000 not to be payable until the Deed was executed: father to receive interest until application in purchase of a property with fall back proviso for repayment if no property purchased within one year.

iv) Liberty to apply as to both implementation and timing.

v) Mother to have interest at judgment rate from 29 July 2005 on £20,000 due unpaid.

vi) Interim charging order against father's property discharged to be replaced by an injunction against the same property – which remains in force.

vii) The duration of the Trust was adjusted to attaining 18 or tertiary education – not 21 – on the father's application and consideration of the authorities .

viii) Liberty to apply for the Trust Deed to be settled by conveyancing counsel absent agreement. Alternatively, if the Deed is substantially but not wholly agreed either party may request the Court to settle outstanding points in dispute.

28. The father responded to the draft judgment with a fusillade of suggestions which Munby J firmly rejected in 17 paragraphs – no doubt the substantial cause of the 4 month delay in finalising the judgment in January 2009. Save for clarification of the definition of the father's entitlement to interest on the £20,000 deposited (and yet unpaid) all were rejected as well outwith the parameters of purely factual and typographical corrections.
29. The father's appeal to the Court of Appeal achieved a small adjustment to the mechanism of the timing of the lump sum effectively by consent on 29 April 2009: £20,000 was to be paid after exchange rather than deemed due as from 20 July 2005.
30. Munby LJ's expectation that the Deed should be agreed within 1 month was not achieved. In April 2010, Mr Stephen Cobb QC approved a consent adjournment to enable the parties to continue negotiating terms. The negotiation was inchoate when the matter came before me on an application by the mother in December 2010. Thankfully, both parties acceded to my proposal to utilise the day as for directions for the court to resolve outstanding points under paragraph 2(b) ii) of Munby J's Order of 6 January 2009. Small points remained still unresolved until the parties in a ray of light in an otherwise fractious day on 7 February told me that the Deed was now agreed in its entirely and it has now been typed up by Dr Pelling for whose administrative help I am very grateful.
31. My justification for the necessity of setting out this saga is as follows: 1) It is a necessary foundation for the exercise of any power of the court to interpose a compulsive direction to enforce its order or possibly under TOLATA to have a firm sense of where obstruction to progress or assistance lies. 2) The father has robustly alleged that the mother is the effective cause of delay, not he or Dr Pelling. His note to me of 6 February in lieu of appearance accuses her of recent lies and misrepresentation. She did nothing, he said, between 2005 and 2007 to move the case forward in a period in which she was suffering from what he says includes "mental breakdown" and living with N at her parents' home. This abrasive document, if true, has to be taken into account.
32. The relentless extended nature of the proceedings has attracted trenchant judicial criticism from, inter alios, Munby J and Wilson J and Wilson LJ. Of the father, Munby J said at [2009] EWHC 1807 (Fam) para 83 "Sadly, the father is simply deaf to any message but his own. His reaction to the guardian's wise words …. is a depressing and revealing commentary on his whole approach … his animus against anyone who does not agree with him … his relentless determination to pursue the litigation, as long as it takes, and, by pressing every point, however trivial, technical or pettifogging, until he eventually has his way."
33. That is entirely consistent with the father's presentation before me in his written statements, his emails and the two statements he made to me in December and February. He was prompt – as was Dr Pelling with even less justification - to accuse the mother and Mr Holden of lies – the accusation appears twice in the 6^th December document. Both he and Dr Pelling ended the afternoon alleging that the mother – whose affect before me was tearful and almost too distressed to be able to listen – actually wanted to impose further delay.
34. I have recorded that the Court process has led to its own delays. But it must be kept in mind that the Court process was the function of the father's repeated applications. In his skeleton submitted in the Schedule 1 hearing in 2009, mother's counsel Mr Cronshaw counted 80 applications before 20 judges of which, Mr Cronshaw said, she made no more than 5-6. I have noted how the s8 proceedings were compromised by consent order made on 29 July 2008 drafted with the assistance of the parties' present McKenzie advisers and requiring 16 printed pages to set out. The father was back in court seeking a review within 3 weeks and seeking to make a complaint to the professional body regulating the instructed psychiatrist in November 2008, next turning his attention to a committal application against the Guardian and Solicitor for their technical breach in disclosure of Reports, an action found by the President to be benign and unwitting.
35. It is right that at paragraph 38 of his judgment of January 2009, Munby J considered the delay to date in drafting the deed. He found that the father was "far too willing to delay maters and avoid his responsibilities" but that the mother was largely to blame for not taking the initiative and seeking compulsive measures. The Deed should, the learned Judge considered, be capable of agreement within 1 month.
36. For my part I would respectfully temper that observation, and with perhaps with greater confidence for the period January 2009 to date, ie the last 2 years, by giving greater recognition of the mother's vulnerability, her sense of being worn down by the litigation – as indeed noted in 2005 by the Cafcass Officer and the District Judge. I note that Wilson LJ with, if I may say so respectfully, characteristic insight, anticipated me by making precisely that point in referring to the father's imposition of extreme stress (on the mother) by "his protracted use or abuse of the forensic process" in dismissing the father's appeal from Munby J's affirmation of the s8 Consent Order; [2009] EWCA Civ 1249 at para [5].
37. The father's very recent intemperate note seems to echo Ms S in 2005 in its wide ranging attack on the mother's mental stability. But I have also read Dr M's report of April 2008. Dr M is a consultant psychiatrist. While he found it difficult to access the mother's history, he noted her history of post-natal depression (for which she was prescribed antidepressants by another psychiatrist) which abated on the separation. He diagnosed varying episodes of anxiety of long standing but neither a sustained nor a generalized anxiety disorder. While noting the presence of histrionic and impulsive traits he detected no personality disorder within the DSM IV Manual classification. She was not a risk. Her personality traits and vulnerability interacted unhelpfully with traits he observed in the father. She was more fragile than average and more sensitive to criticism and adversity. The effect of the proceedings he noted (in 2008) was to reduce her sense of stability.
38. Dr M found it difficult over 3 months to elicit clear and concise histories from the father. He digressed to detailed explanations of such topics as contact. But he similarly excluded a personality disorder. Again he noted the combination of his personality traits with those of the mother accentuated the difficulties between them in the breakdown of their relationship.
39. I have seen that the father has made a complaint about Dr M to his professional body. But I found it a perceptive report wholly consistent with observations made in the course of the proceedings by others and with the presentation of the parties before me. Together with other material it effectively refutes in my judgment the father's intemperate criticisms of the mother in this litigation.
40. There are other factors in play. The mother has the assistance of Mr David Holden, a businessman and family friend. The father has the services of Dr Pelling since 2005. I am not privy to any remuneration or reimbursement arrangements although Dr Pelling has told me that he does not propose to charge a fee as Trustee. It is fortunate that neither of them have had to fund this endless litigation by paying barristers and solicitors. That would have imposed a discipline and brake wholly absent from the history I have described.
41. There is a further aspect of their entrenched representation. Mr Holden is so far as I can judge an amiable businessman looking for pragmatic solutions. He is not a family lawyer, nor a conveyancer or chancery practitioner. Dr Pelling has a national reputation in representation across the board. He is neither lawyer nor conveyancer nor Trust specialist.
42. But these were the two people engaged in drafting this Deed. It left the PRFD expressed in one paragraph, albeit susceptible to technical correction. It emerged from the Order of 6 January 2009 embryonically fit to be sent to conveyancing counsel. I am sure that Munby J could not have intended that the result of the travelling negotiation would be as prolix and elaborate in its provision for any conceivable contingency and more as the 18 page document put before me. I venture to suggest that an Order properly drawn by the Court is sufficient and indeed preferable method to define a Trust in a case of this simplicity and in most s1 cases where modest provision for a small house or flat is made. I note that the well established and respected Resolution Precedents Handbook now in its 8^th edition in 2009 has precedent no 48 along just such lines.
43. It does not stop there. Dr Pelling is meticulous. He is generally courteous in his presentation in Court. He was helpful on both extended hearings to make adjustments to his day to remain available for longer than he anticipated. His familiarity with the White Book I am well aware exceeds my own. But his qualities of meticulous attention to detail when allied with the obsessive sense of detail in the father crisply observed by Munby J are largely responsible, I believe, for the over-elaboration, the determination to nail down unnecessary minutiae using precedents from conveyancing handbooks, combined with a marked disinclination to take a flexible view to proposals from the other side. From these causes came 6 months of endless cross fire in drafting but not agreeing the Deed between two amateur draftsmen. Dr Pelling says it was the fault and neglect of Mr Holden and the mother. But Mr Holden was outgunned by the intensity and elaboration of his opposite number and nothing brought to my attention demonstrated his own want of good will to settle and finalise the work endlessly in progress.
44. As I read the variant drafts and listened to the points being made to me on 9 December, I was wistfully put in mind of the scene in I think Duck Soup in which Groucho Marx shreds a contract set out in a billowing scroll page by page to a running commentary of "whereas the party of the first part and the party of the second part and .." to the alarm of Margaret Dumont.
45. Unlike the late Mr Marx I felt it would be wrong given my remit and the agreement sometimes in principle but so rarely achieved in the detail to delete too much. I refused to accept a marriage/cohabitation clause as wrong in principle. I struck out an any time inspection clause as abrasive. I was uncomfortable with a provision agreed in substance to discharge the Trust if the mother came into a significance inheritance but left it in at a threshold nearly midway between the rival figures.
46. I have to refer to another element which was both of concern to me and which impeded progress. While neither party is free from the charge of easy accusation of bad faith, it is undoubtedly the case that a larger proportion of attacks on truthfulness and candour came from the father and I regret to say Dr Pelling. That got in the way of agreement and I am satisfied brought the mother somewhere near to despair.
47. To take an example. Mother who is entitled under the Deed to select a property – she will after all live in it – approached the agents of the small house at [No. 38] as a purchaser. They showed her round. Misrepresentation says the husband at paragraph 4 of his 6 December memorandum. Liar said Dr Pelling to me in express terms. Nonsense was my reply. She used shorthand to an agent for a viewing and for the purpose of making an offer, the complexity and precise form of the transaction to be left to legal formalities. Nothing suggested that these sellers placed any weight on the precise identity of the purchaser. In any event as the agreement now is that she will contribute £130/350 to buy a property to be held proportionately to her use in what sense is it wrong in shorthand to call her the purchaser at the initial stage at least? Dr Pelling vehemently refused my request to withdraw the charge.
48. I found that troubling. The right to appear as advocate in any form for another in Court is a privilege which carries with it responsibility. Dr Pelling is the McKenzie friend of the father to assist and advise. In my judgment he exceeds his licence when he attacks the honesty of another party particularly the mother of the child with whom the Court is concerned. It is an excess of zeal verging on abuse of the privilege conferred on him. Similarly, it was no part of his role to say as he did without foundation at the close of Friday's hearing that the mother could not be trusted to carry through processing the transaction.

Issues following 9 December 2010

49. The mother has found a 3 bedroom house at No. 38 which is on the market at £350,000. She made an offer on January 14^th. She instructed a surveyor, for a fee of £700, who has reported that subject to roof works which are not urgent, it is an excellent buy. She has a documented mortgage offer of £134,000 in place on her own property to refinance the existing borrowing and provide £90,000 towards the purchase, her parents will provide the balance of her contribution. She has found her Trustee, a local accountant known to her, Mr Swycher. She and Mr Holden have a quotation from a local solicitor. She will pay herself the £800 he charges in excess of a licensed conveyancer, if necessary.
50. Dr Pelling will have none of this. He is strongly against any of these steps being taken. Together with his client he stands foursquare behind the Deed. The Deed must be executed and a joint bank account opened to receive the father's payment. The Trust must instruct the surveyor. Only then can a property be approved and the Trustees proceed to exchange.
51. This insistence on form while at the same time delaying implementation of the Deed alarmed the wife who points out that the sellers had given a deadline for last Friday, at the hearing before me stretched as a final gesture to Friday 18^th February at the negotiation of Mr Holden. He asked me to direct the instruction of his selected solicitor, declare the purchase to be a proper performance of the Court's Order, give conduct of the purchase to the wife or to her Trustee and adopted a suggestion I informed the parties was in my mind that the Court be authorised to sign any documents on behalf of any defaulting party.
52. At the Monday hearing, Dr Pelling argued that although the Deed was now bedded down, it could not be executed until the father put it in funds - see the Whereas recital at B that he has done so and that the mother has put in her contribution. While unpersuaded as a matter of construction that that was correct, I was interested to know what interval was relied upon.
53. Dr Pelling said his client had instructed him that he needed a month or four weeks and that he would be relying in part on family assistance. I pointed out that no such time lag had ever been suggested at any stage. While I now note that DJ Roberts provided payment from the absent payer party 19 weeks after her Order that was 6 years ago. This newly declared interval seemed inconsistent with the father's vigorous complaint on 9 December 2010 of what he said was the mother's intolerable delay in lining up mortgage finance so that the Order could be implemented.
54. On Friday 11 February father told me he needed 6 weeks not 4. I asked so that I could understand his case and evaluate what I considered an indulgence sought from the Court, how the money was to be found. Dr Pelling interjected to say I had no authority to pursue such line of inquiry. I said – I consider correctly – that I had. Father became visibly agitated and said he would give no details. Mr Holden asked me to examine the father on oath or have him cross-examined. I declined – my unspoken reason being chiefly that without disclosure and documentation the exercise was almost pointless.
55. I asked whether it was conceded that the property was apparently suitable. At the end of the hearing, Dr Pelling carefully acknowledged that in principle it was but subject to the Trustees carrying out their duties and a report from the roofer whose inspection the previous Friday had been aborted through illness. I asked whether Dr Pelling was minded to adopt the surveyor's report. I received no clear answer.
56. I asked the father whether he had been to see the property whose identity he had known of since 17^th January 2011. He again became visibly agitated, charged me with pressuring him and asked for a break, which I granted. I never received an answer.
57. On his return father addressed me for about 10 minutes. He said I needed to understand the dynamics of parenting and he would send me an American paper by a leading psychiatrist which I told him I would read with interest. He then told me that all he wanted was proper procedure while the mother had told lies and jumped outside the Deed unforgivably. He assured me the money would be available in 6 weeks without allowing any further particulars. Neither he nor Dr Pelling on his behalf were prepared to take urgent steps to keep the purchase.
58. I invited Dr Pelling's observations. He said he required an undertaking or assurance that Mr Holden would not interfere in Trust business or pursue the instruction of his selected solicitor. I said Mr Holden could not be prevented from advising the wife but declined to enjoin. Dr Pelling pointed out that a direction under s39 of 1990 Act bound him as if he had signed so that he would be contractually liable together with his co-trustee in the event of default in providing money by his own client or by the mother or both.
59. I invited father's response to an Order that he do pay £220,000 within 6 weeks or by 25^th March when the mother's mortgage offer expires. Dr Pelling submitted I could not make such an Order or that it would be wrong to do so.
60. Mr Holden invited me to make directions outside the Trust having regard to the delay and to pre-empt more detail, new objection or plain obstruction. Further, I should direct £220,000 to be paid on or before 18^th February to enable exchange without risk of default. Third I should direct execution in default by the Senior District Judge.

Order

61. I have great sympathy for the wife's position. I am satisfied that she wishes to be shot of the intolerable burden of these proceedings and be decently housed as the Court has long and consistently intended. I am satisfied that she has no wish to delay or default and that she has lined up her finance at least until March 2011.
62. I do not find the father's position attractive. His propensity to accuse and deny any responsibility for the position the parties find themselves in is as unattractive as it is unsupported evidentially. He and Dr Pelling need to curb their default resort to accusations of bad faith and be open to pragmatic suggestions to resolve and implement the Court Order.
63. I note that the Trust is ready to be executed. The Deed should be signed forthwith and the joint account opened in the name of the Trustees ready to receive funds due from each party..
64. On the basis that the mother has assured me she will make her contribution of £130,000 on or before noon Monday 21^st March 2011, I order the respondent to pay or cause to be paid to the Trustees Mr Swycher and Dr Pelling the sum of £220,000, £20,000 remains due and payable under the formula prescribed by the Court of Appeal on 29^th April 2009.
65. I reject the contention of Dr Pelling that I have no power or alternatively should not exercise my discretion to order payment. In my judgment, unless the father's obligation is anchored to a fixed obligation in time, there is every risk of drift. Further delay is in my judgment unconscionable, detrimental to N' welfare and would be a breach of the duty of the Court to ensure that its Orders are performed. A fixed date avoids what I can describe as Dr Pelling's chicken/egg suggestion that the Deed cannot be executed until the money is in. I am not prepared to countenance anything less than a binding obligation which will provide a platform if necessary for enforcement or, if necessary, exercise of the Court's powers under TOLATA to ensure performance of this Trust.
66. I have declined the more radical surgery urged on me by Mr Holden, at this stage. For the present at least I acknowledge the liability point made by Dr Pelling and I do not have the assent of Mr Swycher in any event. I regret that I cannot surely process the purchase of No. 38 although the possibility may revive if the vendors drop their own plans to move out.
67. However, I wish to make it clear that if there is unreasonable further delay or obstruction by either party the Court must consider more radical surgery including Orders under TOLATA directing performance of the Trust as the Court thinks fit or otherwise under its inherent powers. In my judgment, the primary obligation is the performance of an Order made for the benefit of the child and the mechanism of the Trust in the form of this Deed is in the last analysis only a device for the performance of the Court's objective. I do not exclude the possibility that a court may come to the view if appropriate that adjustment may have to be made to the quantum of the lump sum to have the same effect as the Order made in May 2005.
68. I have sent this judgment and Order to the Clerk of the Rules to send out to the parties. As I will be sitting in Milton Keynes for the near future and to avoid inconvenient travel for the parties, I pre-emptively refuse permission to Appeal. I rely on the reasons set out in this Judgment and the Certificate refusing permission I drafted and sent to the parties on 9^th December 2010.

Michael Horowitz QC

14^th February 2011