|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> B (A Child)  EWFC 7 (16 February 2022)
Cite as:  4 WLR 34,  EWFC 7,  3 All ER 1036,  WTLR 409,  2 FCR 647,  2 FLR 523
[New search] [Context] [View without highlighting] [Printable PDF version] [Buy ICLR report:  4 WLR 34] [Help]
SITTING AT THE ROYAL COURTS OF JUSTICE
IN THE MATTER OF THE CHILDREN ACT 1989
Strand, London, WC2A 2LL
B e f o r e :
|Re B (A Child)|
Hearing date (by Microsoft Teams): 15 February 2022
Crown Copyright ©
Mr Justice Peel :
i) To accept a French inheritance on B's behalf; and
ii) To enter into a valid contract for sale of a French property on B's behalf.
The 1996 Hague Convention
(1) The objects of the present Convention are -
a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
b) to determine which law is to be applied by such authorities in exercising their jurisdiction;
c) to determine the law applicable to parental responsibility;
d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;
e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
(2) For the purposes of this Convention, the term 'parental responsibility' includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
Article 3 states that:
"The measures referred to in Article 1 may deal in particular with –
(g) the administration, conservation or disposal of the child's property"
Article 5 states that:
"The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property".
Parental responsibility and property
"17. Section 3 of the Children Act 1989 provides as follows (omitting sub-paragraphs (4) and (5) which are of no relevance to this application):
"3. Meaning of "parental responsibility".
(1) In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
(2) It also includes the rights, powers and duties which a guardian of the child's estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.
(3) The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover."
18. Sub paragraph (1) is very widely drafted. I do not read into it any restriction to its applicability. It is all encompassing and should be construed purposively. Of particular note in this case is the emphasis on responsibilities as well as rights. Thus, M has a clear responsibility under (1) to act in AC's interests in relation to property to which he is entitled. By (2) and (3) M has not only rights and powers, but also duties to take steps to receive or recover property for the benefit of the child. The wording of (2) and (3) plainly embraces the Property in this case, being a house in Italy in which AC has an entitlement. And in my judgment a purposive reading of subsections (1) to (3) also includes the responsibility and duty of the person with responsibility to take steps which enable the child to receive or recover property in the child's own name, and not merely enabling the person with parental responsibility to receive or recover property in his or her own name for the benefit of the child. The former is apt for a situation like the one before me, the latter might be apt where the child has a beneficial interest in property by virtue of trust or otherwise as understood at English law.
19. The diligent researches of Ms Reed QC on behalf of M have uncovered only one reported authority which bears on this topic. In Hays v Hays  EWHC 3825 (Ch) Master Matthews (as he then was), sitting in the Chancery Division, was faced with a similar factual situation. After the death of her father, and pursuant to French succession law, the minor child held an interest in a French apartment. The child's mother applied for an order to be appointed as agent for the child in order to enter into a contract for sale. The application was put forward in a number of ways, including as an exercise of parental responsibility under s3 of the Children Act 1989. The Master granted the order sought on the basis of private international law enabling him, sitting in an English court, to apply French law. The application accordingly succeeded. But, and of interest to those who practise in the field of Family Law, he concluded that he had no power to grant the relief sought under the Children Act, saying:
"25. I have no reason to doubt that the Defendant has parental responsibility for Estelle in English law. But I am not aware of any case law or other authority (and none was cited to me) to the effect that s3 authorises the Defendant to dispose of Estelle's immovable property rights. S3(3) in particular refers expressly to her being able to give a good receipt or sue for property belonging to the minor, as if that might otherwise be in doubt (cf Re Chatard's Settlement  1 Ch 712). But it is striking that there is no mention anywhere in s3 of disposal, which goes far beyond receipt and recovery. Taken as a whole, I am not satisfied at present that this section confers powers on those exercising parental authority to enter into a contract to sell immovable property on behalf of a minor.
26. This claim is, of course, brought in the Chancery Division of the High Court. All matters under the Children Act 1989 are assigned, by the Senior Courts Act 1981, s61 and Sch 1, to the Family Division of the High Court. So judges in the Chancery Division have little or no experience of applications under this Act. It may simply be my own lack of knowledge".
20. In this case, I am not presently being asked to authorise M to enter into a contract of sale in respect of AC's share of the Italian property. I am asked solely to authorise acceptance of his inheritance by her. Hays v Hays is therefore not strictly on point and I have no hesitation in concluding that, on the facts of this case, acceptance of inheritance falls comfortably within the s3 definition. It is plainly the receipt or recovery of property to which the child is entitled. Acceptance of inheritance does not amount to a disposal of property which was the s3 issue before Master Matthews.
21. It may be that once the inheritance is accepted, M will apply for authorisation to enter into a contract of sale of AC's share of the Property, in which case the dicta in Hays v Hays will need to be revisited. I have not received full submissions on this point; that will have to await another day. But my initial view is that the Master's interpretation of s3 was, with respect, too restrictive. If, in this case, M is not authorised to enter into a contract of sale on behalf of AC, then AC will not be able in a meaningful sense to receive or recover his property until he is 18. Of course, he will hold it, but he will be prevented from converting it into other assets which can be managed, invested or deployed in his interests. I would regard a contract of sale in such circumstances as arguably falling within the phrase "entitled to receive or recover". In any event, subsection (3) states that the rights referred to in subsection (2) "include" the right to receive or recover. The word "include" does not operate as a limit to the powers relating to property, which powers in my provisional view include disposal of property. It offers one particular example of circumstances in which the power may be exercised (probably aimed at trust arrangements commonplace in England but not encountered in many foreign jurisdictions) but does not limit the power to that example. I see no reason why s3, read as a whole, should not be construed more widely to encompass entering into a contract of sale provided, of course, that the welfare checklist and paramountcy principle govern the exercise of that power.
22. Be that as it may, as indicated above Hays v Hays does not directly apply to the question before me of accepting inheritance. Should an application in respect of a contract of sale be made I will need to consider the issues raised in Hays v Hays at that time.
23. I am told by counsel that there have been a number of cases with facts similar to those before me and before Master Matthews in Hays v Hays. Because of the Master's decision on the unavailability of the s3 exercise of parental responsibility to achieve the desired outcome of a sale of the minor's property interest, applications of this nature under the Children Act 1989 are not routinely (or at all) made, whether in the Chancery Division or the Family Court. In my judgment, henceforth parties should not be dissuaded from making such applications and in the ordinary course of events they should be made to the Family Court where allocation to the appropriate level of judge can take place in the usual way."
i) I repeat my analysis in Re AC. In my judgment, my provisional view on this subject was correct.
ii) The wording of Article 3(g) of the 1996 Hague Convention (the administration, conservation or disposal of the child's property) reinforces my view that parental responsibility includes the sale of property of a child [emphasis added].
iii) A sale of property is an aspect of management of property as was explained by Chief Master Marsh at paragraph 42 of South Down Trustees Ltd v GH  EWHC 1064 (Ch). It does not alter the beneficial entitlement; it merely converts the interest into ready money which can more easily be deployed.
iv) Master Clark, in Re Shanavazi  EWHC 1832 (Ch), with her considerable experience from a Chancery perspective, when faced with a similar case to this one agreed with my reasoning in Re AC.