Re B [2022] WTLR 409

Analysis

In 2013, B’s father died intestate in France leaving a French property. Under French law, the property passed to B and his adult sister in equal shares. Under French law, it is necessary for the heir to accept their succession to the French estate. As B was a minor (aged 17), he was not able to do so. If he lived in France the surviving parent would be able to accept the succession on B’s behalf, but because B was habitually resident in England the French court declined jurisdiction.

B’s mother made an application for a specific issue order under s8 of the Children Act 1989 authorising her to accept B’s French inheritance and to enter into a valid contract for sale of the French property on B’s behalf.

Held: application granted

1. (1) The English court had jurisdiction under the Hague Convention on Parental Responsibility and Child Protection 1996 by reason of B’s habitual residence in England (paras [7]-[8])
2. (2) It was appropriate to authorise B’s mother to accept succession to the French estate on B’s behalf because s3 Children Act 1989 was drafted widely and should be construed purposefully to include a responsibility to act in the child’s best interests in relation to property to which the child is entitled, including receiving or recovering that property in the child’s name (Re AC (A Child) [2020] applied) (paras [9]-[10]).
3. (3) The court had the power to authorise the mother to enter into the contract of sale under s3 (Re AC applied). The wording of Art 3(g) Hague Convention on Parental Responsibility and Child Protection 1996 (the administration, conservation or disposal of the child’s property) reinforced the court’s view that parental responsibility included the sale of the property of a child; a sale of property is an aspect of management of property (South Downs Trustees Ltd v GH [2018] considered). It does not alter the beneficial interest but convers the interest into money which can be more easily deployed (para [12]).
4. (4) The case was similar to Re Shanavazi [2021] which also applied Re AC (para [12]).
5. (5) In considering B’s welfare it was in his best interests to grant the authorisation sought given the value of B’s share was 50% of an asset valued at €320,000 with no known debts; there was no significant link with France; the family barely visited the property; B’s family life was in England; B wished the property to be sold to assist him with his tertiary education and to allow him to explore other investment opportunities; rental income did not provide a meaningful net income; a ready and willing purchaser had been identified and the evidence suggested that if this opportunity was not grasped it may become more difficult to secure a sale (para [13]).
6. (6) Procedurally an application for a specific issue order must be made on Form C100. Because of the technical aspects of such an application, including consideration of foreign law, and the need to avoid delay, a witness statement in support setting out the circumstances in full is essential. Under Family Procedure Rules 2012 (FPR) 12.3(1) every person whom the applicant believes has parental responsibility for the child should be made a respondent. It is unlikely that the child would need to be joined unless the child fundamentally disagrees with the application and is of an age where he or she can validly object. Any third party who has or appears to have a legal or beneficial interest in the property should be notified of the application, invited to confirm whether or not they oppose the application and reminded that they can make an application to be joined as a party under r12.3(3). Where the child is thought to be Gillick competent, his or her views should usually be sought informally by the applicant.
7. The application should claim an exemption from, and the court should dispense with, the need for attendance at a mediation information and assessment meeting. The appropriate venue for a specific issue order application like the instant case is the Family Court, and the application can be dealt with by a district judge or circuit judge, although the application could be allocated to a judge of the High Court on the grounds of complexity. Ordinarily it is necessary for a hearing of the application as it involves the welfare of a child, the applications are one-sided and the court needs to be extra vigilant to be satisfied that the child’s welfare is not prejudiced. There should usually be a short hearing before a judge to approve the order. The first hearing can and should usually be used as a final disposal hearing. A hearing would usually be in private in family proceedings under FPR 27.10 unlike the position in the Chancery Division where the hearing would usually be in open court (paras [16]-[26]).

JUDGMENT PEEL J: Introduction [1] I am concerned with an application relating to the exercise of parental responsibility under the Children Act 1989 in relation to the property of a minor (to whom I shall refer as ‘B’). [2] I gave judgment on an application of the same type on 11 December 2020 in Re …

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