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B (A Child) [2022] EWFC 7

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Background

B (the subject child) is 17.  His father died estate in 2013, and under French law a property he owned there passed in equal shares to B and his adult sister.  French law required B to accept the succession, although as a minor this would ordinarily be done by his mother making an application to the juge des tutelles.  As B is habitually resident in England, the juge des tutelles declined jurisdiction.  B's mother therefore applied for a specific issue order authorising her to:

(a) Accept a French inheritance on B's behalf; and

(b) Enter into a valid contract for sale of the French property on B's behalf.

Legal framework

Article 1 of the 1996 Hague Convention on the Protection of Children states that "The objects of the present convention are to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child" (article 1(1)(a), "to determine the law applicable to parental responsibility" (article 1(1)(c)) and "to provide for the recognition and enforcement of such measures of protection in all Contracting States" (article 1(1)(d)).  Pursuant to article 3, those measures "may deal in particular with the administration, conservation or disposal of the child's property".  The English court had jurisdiction given B's habitual residence (article 5). 

Section 3(1) of the Children Act 1989 states that parental responsibility includes the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.  Peel J held that a purposive reading of s3(1) and 3(3) (i.e. including the right to receive or recover, for the benefit of the child, property of whatever description and wherever situated), include a responsibility and duty to take steps to enable the child to receive or recover property in the child's name.

He held that the wording of article 3(g) of the 1996 Hague Convention reinforced the conclusion that, pursuant to CA 1989 s3, parental responsibility includes the sale of property of a child.  In English law (see e.g. South Down Trustees Ltd. V GH [2018] EWHC 1064 (Ch)) a sale of property is an aspect of management of property. 

Undertaking a welfare analysis, it was in B's interests for the property to be sold: it would realise substantial funds (B's share being worth about €160,000 less sale costs) and at present very little use was being made of the property.  B wished to have funds for university and/or purchasing a rental property here.  The application was therefore granted.

Procedural points

• Future applications should be made on a C100, supported by a witness statement. 

• Anyone else with parental responsibility would be a respondent. 

• It is unlikely the child would need to be joined as a party

• Any other person with a legal and/or beneficial interest in the property should be notified of the application and invited to make an application if they wish to be joined (although it is generally unlikely they will need to be joined, as this is not an order for sale, simply enabling a sale to be effected, and any other owner would be able to oppose a sale without joining the proceedings)

• A MIAM exemption should be claimed

• Ordinarily a hearing will be required given the likely one-sided nature of such applications (by way of analogy with infant approval hearings in the civil sphere), although the hearing could ordinarily take place at the first hearing

Case summary by Julia Belyavin, Barrister, St John's Chambers

For full case, please see BAILII