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Cite as: [2011] EWHC 968 (Fam)

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G v A (No 2): the judge has granted permission for this judgment to be published

Neutral Citation Number: [2011] EWHC 968 (Fam)
Case No: FD 03P02333

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989, SCHEDULE 1
AND IN THE MATTER OF N (A CHILD)

Royal Courts of Justice
Strand, London, WC2A 2LL
23/3/2011

B e f o r e :

THE HONOURABLE MR JUSTICE PETER JACKSON
____________________

Between:
G (mother)
- and -
A (father)

____________________

Mr David Holden (appearing with the permission of the court under the Legal Services Act 2007) for the Applicant
Dr Michael Pelling (appearing with the permission of the court under the Legal Services Act 2007) for the Respondent
Hearing dates: 21 and 22 March 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    JUDGMENT: G v A (No 2)

    Mr Justice Peter Jackson:

  1. The nature of this litigation declares itself in the information appearing on the cover page of this judgment. In the first place, these are proceedings under the Children Act for the benefit of N, a child. Secondly, the case number reveals that the proceedings have been on foot since 2003. Thirdly, the main part of the hearing took place on the day of N's 10th birthday, the parents having spent the morning preparing and the afternoon in court. They had been offered a hearing two days later, but for their own reasons they both preferred a hearing on that day.
  2. N is not represented in these proceedings. When he was 18 months old his mother applied for financial support for him, and when he was 3 years old the court made an order that his father should put up funds towards the purchase of a home for him and his mother. He is now 10, and that purchase has not yet happened. In the meantime, the parents have been locked in continuous conflict about this and other matters. The abuse of litigation in this case is a scandal.
  3. In applying the law to the applications now before the court, I remind myself that primary and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. Like previous courts, I have heard a great deal about the rights of the parents, but in the father's case little or nothing about the rights of N. These include N's rights to a fair hearing and to respect for his family life. So far he has lived with his mother and grandparents, and with his mother in rented accommodation, when it has long ago been his entitlement to live in a settled address. Likewise, he is being brought up by parents who have lived in a state of perpetual litigation (including welfare litigation leading in 2009 to a 4 year restriction on applications under s.91(14)). I consider that the impermanence of his home and the perpetual litigation offend N's rights, and that in exercising such powers as it properly possesses the court is under an obligation to act in a manner that brings both anomalies to an immediate end. To the extent this impacts upon any rights of the parents, it is overwhelmingly justified to protect the rights of this child, whose minority is elapsing all the while.
  4. As I propose to make interim orders, I will not overload this judgment with a lengthy survey of the history, or of the deep and repeated concerns expressed by previous courts. Recent examples are to be found at G v A [2009] EWHC 11 (Fam) (Munby J), A (a child [2009] EWCA Civ 1249 (Wilson LJ) and in the judgment of HHJ Horowitz QC, sitting as a Judge of the High Court, of 14 February 2011.
  5. I will also refrain from giving full expression to some observations that could be made about the conduct of this matter in the hope that it will not be necessary to do so on a future occasion.
  6. In short, the parents began their relationship in 1996 and separated in 2002. They never married and N is their only child. There is a residence order in favour of the mother and the father has substantial contact. On 17 October 2003 an order was made requiring the father (who did not attend the hearing) to settle 220,000 for the purchase of a property to be held on trust for N until the age of 21 or the end of his tertiary education. The sum of 20,000 was to be paid to the mother for the cost of moving.
  7. The achievement of this simple project has been confounded by a combination of circumstances. The father made applications in relation to the wording and implementation of the order, and substantial time was lost as a result of protracted residence proceedings. The matter came before Munby J in May 2006, April 2007, July 2007, November 2007 and July 2008, leading to a judgment that was publicly handed down on 6 January 2009. This made detailed provision for the implementation of the 2005 order. An injunction was granted, prohibiting the father from dealing with a particular property, except by letting it on shorthold tenancy, and a charging order made over that property to secure the sum of 20,000. The father appealed what was described as "a tiny part" of the judgment (see the observation of Thorpe LJ on 18 March 2009). In November 2009 Wilson LJ refused the father permission to appeal in relation to the residence arrangements.
  8. Another two years have passed since Munby J's decision. Following at least three interlocutory hearings before other judges, the matter came before HHJ Horowitz QC on 9 December 2010 and 3, 7 and 11 February 2011. Judgment was given on 14 February.
  9. In his judgment, the judge concisely describes the effect of the order of Munby J (see paragraph 27). In particular, he focused on the difficulties in settling the trust deed. In January 2009, Munby J had expected that to be done within a month, but it was not until 7 February 2011 that the deed was, with Judge Horowitz's assistance, settled in its entirety.
  10. In the meantime, in January 2011 the mother had identified an apparently suitable property, which I will describe as No. 38. It is a modest three-bedroom property. A favourable professional survey of 20 January 2011 describes it as being in an excellent condition, apart from some insignificant items requiring attention). "It should prove to be a worthwhile investment and a comfortable and pleasant residence." The mother is in a position to raise funds to supplement the father's contribution. She has a mortgage offer which expires this week. Paragraph 49 of Judge Horowitz's judgment sets out the mother's proposal in detail.
  11. Paragraphs 50-59 of the judgment set out the father's response. He raised a variety of objections to producing the funds within the mother's timescale. The deed had not been executed. A bank account had not been opened. The deed could not be executed until the funds had been received. The property had not been approved by his trustee (Dr Pelling). Conditions should be attached to Mr Holden's actions.
  12. Judge Horowitz asked whether the father had himself been to see the property proposed for his son's home. This question precipitated agitation in the father, who gave no answer. The judge records "He assured me the money would be available in six weeks without allowing any further particulars. Neither he nor Dr Pelling on his behalf were prepared to take urgent steps to keep the purchase." The judge invited a response to the suggestion that the father should pay 220,000 within six weeks. The father's response was that the court could not make such an order or that it would be wrong to do so.
  13. The judge's order of 11 February 2011 (wrongly dated 7 February) declares that there is no obstacle to the trust being constituted forthwith and directs the father to pay or cause to be paid to the trustees to be held upon the terms of the trust ordered by the court the sum of 220,000 on or before noon on 21 March 2011. Permission to appeal was pre-emptively refused. No appeal was lodged against this order.
  14. As at 11 February 2011, it is plain that the mother was anxious to progress this purchase but that the father and Dr Pelling were not. I note that on 3 February, Dr Pelling wrote to the vendors' estate agent (who was asking for comfort for that the transaction was going ahead) that "it looks as if an almighty legal battle is imminent and the matter and various aspects including the purchase which is your immediate concern may well end up in the Court of Appeal." On the following day, Dr Pelling wrote to the agent marketing the property which the vendors hoped to buy: "there is a nightmare situation going on over the purchase of [No. 38]." He sent this message despite the first agent's request that he should not do so.
  15. At the hearing in February, Judge Horowitz asked the father whether he had been to see the property, but he would not say. During the hearing before me, Dr Pelling revealed that he and the father had visited the property on 3 February, something that neither of them had previously disclosed. Dr Pelling was able to say that it is in principle a suitable property, but he determinedly reserved the father's rights to insist upon the potentially protracted procedures provided by Clause 2 of the deed. These provide that, if there were no other cause for delay, the father would have until 7 May 2011 to offer his observations on the property to the trustees. At that point it would be a matter for the trustees, who might disagree. The fact that this is a property for a child, and that its fragile availability has been known about since mid-January, evokes no softening of approach.
  16. I now turn to events that have occurred in the last 5 weeks.
  17. On 11 February, the father had appointed Dr Pelling as Settlor's Trustee.
  18. The correspondence between Dr Pelling (as trustee) and Mr Swycher (as mother's trustee) appears at pages C55-64 of the father's bundle. On 21 February Dr Pelling sent a copy of the settlement deed and asked for confirmation that the Lloyds bank forms had been sent to the bank. On 24 February he sent a robust chasing message, making a variety of critical and legal comments. These included the statement that the function of the family court was now at an end, and a request for information about the mother's funds. On 1 March, Mr Swycher confirmed that he had provided the information to the bank and asked for a copy of the trust deed. He also asked for confirmation that the father's funds would be available and asked for the father's contact details. On 6 March, Mr Swycher returned the signed bank form and asked for a reply to his earlier message. There followed an exchange about the identity of the account holder. On 10 March, Dr Pelling also asked for the information previously requested. He said that on the father's part "he is of course fully aware of the order of the court of 11 February 2011, sealed 1 March 2011". In relation to the purchase of a trust property, in particular No. 38, he reminded Mr Swycher of the procedure laid down by Clause 2 of the trust deed. He asked Mr Swycher to arrange for the mother and himself to sign and return the trust deed. Also on 10 March, Dr Pelling was telephoned by the vendor of No. 38, to whom he explained that the trust was in process of being funded, which ought to be in March but possibly April at latest. On 10 March, Mr Swycher sent a message which crossed, chasing his previous e-mail. On 12 March Dr Pelling instructed Mr Bance to carry out the necessary steps to enable the trust account to be opened. On 14/15 March, they again communicated about setting up this account. On 17 and 18 March, Mr Swycher sent further chasing messages to Dr Pelling. On 18 March, Dr Pelling wrote expressing concern that he had not received replies to his e-mails. He referred to "the 21st [as] rapidly approaching". He asked for confirmation that the mother would have the funds deposited in the bank account on or before 21st March. He asked for her contact details so that he could confirm this for himself. So far as the father's contribution was concerned, he repeated that the father was aware of the terms of the order of 11 February. "He also made his position on the funds quite clear in the court on 11 February 2011 but I cannot repeat that here due to the contempt of court law in relation to proceedings under the Children Act 1989 held in chambers. I can however assure you that [the father] is a man of his word." He referred to the fact that the bank account was not yet open and the deed of settlement is not yet signed.
  19. The father's apparent position was therefore that he was complying with the 21 March deadline. He certainly made no argument of the kind addressed to me, which is that the order was not valid and did not have to be obeyed. On the contrary, Dr Pelling's correspondence carried the clear indication that the father was working to 21 March as a payment date; Dr Pelling was unable to explain how it could have been interpreted in any other way.
  20. The correspondence since 11 February may not be entirely a dialogue of the deaf, but was certainly a dialogue of the hard of hearing. I appreciate that Mr Swycher is a volunteer but his approach lacked the uncompromising precision that the situation demanded. Although Dr Pelling was acting as Settlor's Trustee a number of his actions and statements would have been questionable had be been acting as advocate.
  21. The matter first came before me in the applications court on the afternoon of Friday 18 March. The mother applied made a without notice application for a writ ne exeat regno preventing the father from leaving the jurisdiction until payment of the sum of 220,000. In her statement, she complained that the father and Dr Pelling were frustrating the execution of the trust and the opening of the bank account. She said that she would lose her sale of the property and her mortgage. She exhibited "the e-mails" between her trustee Dr Swycher and Dr Pelling. She said that N had told her that the father was travelling to Hong Kong and China at the weekend and would not be available for contact in the following week.
  22. I was not prepared to issue the writ ne exeat regno, as on any view the sum was not due for payment until noon on Monday 21 March. However, based on the information provided, I made an order for the seizure of the father's passport and the direction that the parties attend court at 2 pm on Monday 21 March. I gave liberty to the father to apply to vary or discharge the order over the weekend. In the course of a short judgment, I recorded that no steps had been taken by the father or Dr Pelling to demonstrate that the father was in the process of producing funds. I also recorded, inaccurately, that correspondence from Mr Swycher had gone unacknowledged and that no effort had been made to acquire the necessary bank account.
  23. My reasons for making the order arose from the history of the matter, the likelihood that the father would not produce the funds as required, and the balance of consequences of granting or refusing the order, which fell in favour of the mother. The father's passport was seized on the Friday night.
  24. The matter then came before me again on the afternoons of Monday 21 March and Tuesday 22 March. On the latter occasion I sat until 6.30 pm.
  25. As the hearing progressed, it became increasingly clear that my experience was similar to that of Judge Horowitz. As to the contrasting approach of the parties and their representatives, I need only record Mr Holden's observation: "I look for solutions. I don't look for problems." Like Judge Horowitz, I was also presented with the father's earnest assurances that the money would be produced, the only difference being that the date has now slipped to 12 April.
  26. On 21 March, statements from the father and Dr Pelling were presented. The father's statement says that he will need six weeks to provide the funds, and that this period shall begin on 1st March, which is when he says he received confirmation that the mother and her trustee would adhere to the terms of the deed in the form of Mr Swycher's e-mail. He states that he makes regular business trips to China. On 16 March he booked a trip departing at 6 am on Thursday 24 March, and returning late on 11 April. He then intends to take N to Israel for Passover with his family, departing on 15 April and returning on 26 April.
  27. The father's applications are for (1) extra time to replace last weekend's contact; (2) the provision requiring payment on 21 March to be set aside; (3) the return of his passport and costs; (4) permission to apply for an order concerning N's passport.
  28. Dr Pelling's statement (shorn of its polemics) contends that the mother misled the court by failing to produce e-mails that he had sent to Mr Swycher from 21 February onwards. He blames the mother and her trustee for the failure to carry out the administrative tasks of signing the trust deed and opening the trust account. He says that there is no reliable evidence that she will lose her purchase or her mortgage. He says that in the light of paragraph 1(2)(c) of the order of Munby J, which provided that the father's obligation to pay over the sum of 220,000 did not arise before the execution of the deed, Judge Horowitz had no power to set the date of 21 March for payment by the father. At the same time, he states that the six weeks required by the father runs from 1 March. He is assured by the father that the funds will be credited to the trustees' bank account on or before 12 April 2011. Neither the mother nor the court has any right to investigate the father's financial position. Dr Pelling describes himself as a trustee and says that the trust is now constituted albeit not fully executed. Any future proceedings should be brought in the Chancery Division.
  29. Dr Pelling advances arguments in relation to the writ ne exeat regno, referring to the Supreme Court Practice notes to RSC Order 45. In particular, he says that there is no pending action whose prosecution could be prejudiced by the father's temporary absence. He also questions whether the order to settle a sum of money could give rise to arrest. As to the passport order, he states that this cannot be used as a free-standing form of execution. He refers to the decision of Wilson J in B v B (Injunction: Restraint On Leaving Jurisdiction) [1997] 2 FLR 148.
  30. At the hearing on 21 March, it was established that nothing prevented the immediate signature of the trust deed. It was signed by the father, Dr Pelling and the mother at court on 22 March. I expect that it will be signed by Mr Swycher on his return from abroad on 23 March. A copy of the deed will be sent to the solicitor (Mr MB) and the bank account at Lloyds Bank will immediately be available for receipt of funds. The mother's funds are immediately available. She has 40,000 herself and the balance of her contribution will come on mortgage from the company Mortgage Works.
  31. The father says that the money will not be paid until 12 April and that "his word is sufficient". In order to understand this proposal, I repeatedly asked for information about what steps had so far been taken to ensure the availability of funds. Dr Pelling told me that the father was not prepared to give any information and that I was not entitled to request it. "Why do judges not let [the father] get on with what he has said he is going to do? Why not let me as trustee get on with what I need to do?"
  32. As to the order for payment on 21 March, Dr Pelling says that it conflicts with the order of Munby J. The father is entitled to ignore it. He is entitled to have it set aside. The High Court has "effectively screwed up" by making conflicting orders, and the father is entitled to choose which one he complies with.
  33. The hearing before me resumed on Tuesday 22 March. By this time, the mother had issued applications for various orders, and in particular a freezing injunction. On this occasion, Dr Pelling launched an oral application for the proceedings on 21 March to be published and the hearing thereafter to be in public. He referred to the importance of open justice, the oppressive persecutory nature of the applications against the father and the serious infringement of his legal rights. He complained about the manner in which I had conducted the proceedings on 21 March, and in particular my question to Mr Holden about what applications for enforcement of the mother was pursuing. He contended that the case raises issues of legal interest.
  34. I refused the application for the proceedings to be heard in open court. My reasons can be shortly stated. I note that all the numerous hearings in this matter have taken place in private since 2003, except where they have taken place in the Court of Appeal, where the identity of the parties has been protected. At least one judgment of Mr Justice Munby is also in the public domain, again with anonymisation. The application was opposed by the mother. I have no information about the possible effect on N of publicity identifying his parents and himself and was not reassured by the father's remark that "The child might be embarrassed? so be it."
  35. I have no difficulty in principle with this judgment being publicly available in its current form, subject only to the question of timing. If the father intends to apply to the Court of Appeal, as was frequently threatened during the course of the hearing, it is preferable for the question to be deferred until that has happened, if it does. In that regard, Dr Pelling asked for permission to appeal the refusal to sit in public, which I refuse.
  36. If the application for the court to sit in public is renewed at any future hearing I will consider it on its merits at the time.
  37. In his submissions on 22 March, Dr Pelling revealed the visit to the property on 3 February, but only in reply to my questioning. He said that it is "completely wrong in principle to try to expedite things we have to comply with procedures". Again in response to my questions, he revealed an intention to require the procedure under Clause 2 of the deed to run its course, causing further loss of time. Asked about the professional survey, he said that while, in principle, it was apparently suitable, he was not prepared to commit himself. "It's all very well [the mother] appointing her own surveyor." Once the father's observations had been received, he would exercise his judgement as trustee.
  38. I queried the purpose of this delay. At this point, Dr Pelling started shouting at me and I rose so that he could compose himself, following which he made a nominal apology. There were also several occasions when the father tried to give him instructions, causing Dr Pelling to become agitated at the interruption to his submissions.
  39. The only information about the father's financial affairs came by a side wind. In order to illustrate his clients need for a passport, Dr Pelling produced a banker's draft order dated 17 March in the sum of 41,110.54. The passport had been produced to the bank. Dr Pelling said that this demonstrated the steps that the father was taking to liquidate sums. He referred to the father's property at 18 Cedar Drive as being unencumbered, although it is about to be let on a shorthold tenancy. The father offers to consent to a charging order now that the trust is constituted. This, Dr Pelling says, offers sufficient security.
  40. As to the passport retention, Dr Pelling asserted that this was unlawful and that the father would just go to the Court of Appeal. "Nobody really cares, do they? It's all about doing what the mother wants. She wants to get everybody to dance to their tune." He said that there was no purpose in preventing the father from travelling to China as he had made arrangements for the gathering of the funds in his absence. He said that the father was in his experience a man of his word and that he, Dr Pelling, would be very disappointed if the father had not produced the funds by 12 April. "I would accept that his credibility would be destroyed."
  41. On behalf of the mother, Mr Holden replied to my questions about the fact that Dr Pelling's e-mails to Mr Swycher, in particular those of 21 February, 24 February, and 10 March, had not been disclosed on the mother's without notice application. He said that he had not seen these messages. I accept this, but it shows that the liaison between members of the mother's team has not been what it ought to be. As it happens, I do not find that anything very much turns on this issue, but the effect was that the court was misled.
  42. Mr Holden's substantive submissions were that the father's assurances could not be trusted. He had said the same thing to Judge Horowitz. He was concerned at Dr Pelling's conduct as a trustee and an advocate, which he described as murky. He gave Dr Pelling's response to an immaculate property as an example. Mr Holden lamented how a perfectly simple domestic purchase was being frustrated. With good will, contracts could be exchanged tomorrow. He explained that every effort was being made to persuade the seller, and the seller's own vendor, to be patient, but he realistically accepted that in the light of the father's position the money was not going to be received in the next few days.
  43. As to remedies, Mr Holden invited the court to make a freezing order in the sum of 275,000 and to require the father to list his assets. Certain remedies, such as oral examination, could only be pursued with the consent of the trustees, which Dr Pelling would no doubt withhold. A charging order could not be enforced within the timescale of this purchase. The withholding of the passport was justified because the father could liquidate his assets if he remained in the country but certainly would not do so if he was abroad.
  44. Mr Holden confirmed that following the hearing in February, Dr Pelling had never asserted that the order for payment by 21 March was invalid.
  45. In reply, Dr Pelling reasserted that the father's promise to produce the money by 12 April was unconditional, as opposed to his conditional promises to Judge Horowitz. He asserted that the father would be giving suitable instructions to other people, including before his departure to China. "These are things he will do". A freezing order required evidence of a high standard. The mother had jumped the gun and was seeking to impose their views on the trustees "why should everybody jump to her tune over this?"
  46. It will be seen that Dr Pelling frequently expresses himself in a personalised way which would not be acceptable from an advocate subject to professional discipline. During the course of the hearing the mother frequently demonstrated her exasperation. I have considerable sympathy with her position, particularly when I recall that she was described by the court as being worn down by the proceedings as long ago as 2005. She left court at 6 pm, having missed N's birthday afternoon.
  47. I will now address the questions which arise.
  48. Is the father in default? Yes. I find that the obligation on him to provide the sum of 220,000 arose at noon on Monday, 21 March 2011, as provided for by paragraph 2 of the order of 11 February 2011. In so far as Judge Horowitz varied the order of Munby J by providing a specific date for payment, the court had power to do this in the circumstances that existed, namely a protracted and unsatisfactory delay and an identified purchase. I accordingly reject the father's application to set aside paragraph 2 of the order of 11 February 2011. That order was not appealed, and the application is inconsistent with Dr Pelling's e-mail correspondence upholding the date of 21 March.
  49. Is there any good reason for that default? No. There is no suggestion whatever that he has been unable to comply with his obligation. The probability is that if the father wanted to cooperate, the money would be available within days. I reject his self-appointed resetting of the clock to run from 1 March. My efforts to understand why the money is not immediately available have not only been in vain, but have been flatly rebuffed. In being asked to accept assurances from the father, I find myself in an almost identical position to Judge Horowitz. Those assurances were not honoured and there is no basis upon which I can be confident that the father will now do what he promises.
  50. Does the court have the power to make a freezing order? Yes. There is abundant evidence that assets need to be preserved for the purpose of enforcement.
  51. Is the current charging order for 20,000, together with the offer of a charging order over 18 Cedar Drive sufficient security? No. They may be sufficient in amount, but may not be readily realisable within N's timescale.
  52. Does the court have the power to order the father to disclose his means? Yes. Payment is overdue. The mother is entitled to know whether there are assets against which to enforce the order. If the father did not want others to know about his financial affairs, he should have complied with his obligation and his assurances.
  53. Does the court have the power to seize the father's passport? Yes. B v B, referred to above, establishes as much. The court is not entitled to detain him indefinitely as a free-standing enforcement procedure, but it has the power to require him to remain in this jurisdiction in aid of its established procedures for the disposal of the proceedings and the enforcement of its judgment. I would only observe that the decision predates the coming into effect of the Human Rights Act 1998, and that the power which arises under s.37(1) of the Senior Courts Act 1981 must now be read in that context. I have already referred to the Convention rights of all concerned.
  54. There are a number of differences between the facts of B v B and the present case. Notably, the debtor in that case was not resident in this country, whereas this father is. On the other hand, there was no particular urgency in the payment of the debt in that case. Here there is.
  55. What approach is most appropriate? The approach which is most likely to produce the funds required for N's housing. Having considered the presentation of the father and Dr Pelling, I am clear that they are at present determined to obstruct any way of proceeding other than their own way. In particular, if the father's trip to China is prevented, they will turn their attention to efforts to appeal. As against that, I have their assurance that the sums will be provided by 12 April, which is now within three weeks. I consider that any chance of N's funds being forthcoming from the father by then is likely to disappear if he is crossed by the continued retention of his passport. I understand Mr Holden's submission that the father's absence abroad would seem to add a further practical barrier to his compliance with the order, but I believe that the father is even less likely to comply with his obligations if required to remain in England. I also agree, with regret, that although the matter remains urgent, this purchase cannot go through within the next few days without the cooperation of the father and Dr Pelling. It is more likely to be saved if the father is given a last opportunity to produce the funds voluntarily.
  56. What orders should be made? Interim orders. I will (as a matter of discretion but not of entitlement) sanction the temporary release of the father's passport to him on the basis that it he returns it to the Tipstaff on his return from China. I will make a limited freezing order and a disclosure order. I will adjourn the hearing until 10 a.m. on Wednesday, 13 April 2011. I will attach a penal notice directed to the father in relation to the relevant parts of the order.
  57. I am prepared to take this approach until the hearing on 13 April, but only until then. I expect there to have been significant progress by that date. In particular: the trust deed will have been signed by all; the bank account will be open; the father's entire contribution will have been lodged in it; the mother's contribution, with or without the mortgage money, will have been lodged in it; the father will have complied with the terms of my order; the father and Dr Pelling will have taken all necessary steps to satisfy themselves of the suitability of the current property so that Clause 2 procedures need not be invoked. There is no justification whatever for waiting until 12 April before embarking upon them.
  58. In the event that the father and Dr Pelling fall short of these expectations, I am likely to take a very different approach, starting on 13 April and continuing in as continuous a manner as my diary permits until the intention behind the court's original order has been achieved. I do not intend this process to be interrupted by any competing plans on the part of the father, whether they involve N or not.
  59. I refuse the father's application for time in lieu of last weekend's contact. I am not prepared to deal with his application for permission to apply for an order in relation to N's passport in the absence of a formal application.
  60. I will reserve all applications between these parties to myself.
  61. I reserve the costs of the hearings since 18 March.
  62. Is Dr Pelling's position tenable? I prefer to defer a final answer to this question, but there are certain observations I wish to make at this stage. I consider that there are obvious difficulties in his performing the dual role of advocate and trustee. These would exist if he was performing both roles in a moderate and constructive way, and at present he is doing neither. He appears to be in the undignified position of a man wearing two hats, neither of them becoming. I would instance: the undisclosed visit to the property, the e-mails to the estate agents, the arrogation of the right to substitute his own date (12 April) for the Court's (21 March), the application for the hearing to be held in public regardless of N's interests, the undisclosed argument about the validity of the February order, and the refusal to consider giving immediate approval to a perfectly suitable property. One of the most significant duties of the trustees is to secure a home for N expeditiously and to avoid conflicts of interest. To date, the sole lodestar of Dr Pelling's actions has been the interests of the father. If an irreconcilable conflict of interest has not already arisen, it will certainly arise if there is not the immediate and significant progress that I expect, and in particular if there is continued default in payment or a dispute about the suitability of the property. At that point, Dr Pelling's role as a trustee would come into question and I forewarn the father that I will also review the rights of audience that I have extended at this hearing. I have allowed Dr Pelling to represent the father for no other reason than that he is already established within the proceedings. Had the application been made anew, I would have considered it in the light of the Practice Guidance issued on 12 July 2010. I will review the situation at the outset of each subsequent hearing. This case is about N and his parents and I will not allow it to be about Dr Pelling or anyone else.


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