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(Chancery Division; George Bompas QC (sitting as a deputy High Court judge); 12 January 2009)
The only asset in the husband's bankruptcy was the matrimonial home. The trustee in bankruptcy sought a possession order against the husband, the wife, and the three children. The eldest child was seriously disabled; he had congenital quadriplegic cerebral palsy with learning disability and epilepsy and was in need of continuous care. The family argued that the circumstances of the case were exceptional within Insolvency Act 1986, ss 336(5) and 337(4), and that an order for possession should be refused. The trustee argued that the possession order should be made, and should be deferred only for a period of 3 or 6 months, as the local authority would be obliged to house the family once it was homeless. It was accepted by all parties that if the property were sold there would still be a substantial shortfall in the bankruptcy.
These were exceptional circumstances within Insolvency Act 1986, ss 336(5) and 337(4). The possession order should be made, but deferred for 3 years, or, if sooner, 3 months after the disabled child ceased to reside permanently at the property. This would allow an orderly change to the care arrangements for the child.
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