Analysis
The claimant was the widow of Gohlam Dastagir Shanavazi (the deceased), who had died intestate on 29 December 2011. They had five children of whom four were adults by the time of the hearing. The claimant brought the Part 8 claim on behalf of the youngest child, her minor son Ilyas Firas Shanavazi, who was now 16.
Under German law Ilyas was entitled to a 1/10th share of his father’s estate. The claim was brought to allow the claimant on behalf of Ilyas to enter into a contract of sale of a property in Germany and to convey the property to the purchaser.
The claimant, the deceased and Ilyas were all German nationals. The claimant and Ilyas had moved to England with the intention of remaining here permanently. Under English private international law succession to the German property was governed by the law of the country in which it was situated.
The evidence was that German law deferred to Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (the Regulation). Article 8(1) of the Regulation provided that in matters of parental responsibility, the courts of the member state in which the child is habitually resident at the time the court is seized shall have jurisdiction. Ilyas was at all material times habitually resident in England and, as a matter of German law, it fell to the English court to consent to the sale on Ilyas’ behalf.
Held:
The Regulation was revoked with effect from 11pm on 31 December 2020 (the ‘IP Completion Day’, which was the end of the period (the Implementation Period) in which the UK continued to adhere to EU rules) by s3(1) of the European Union (Withdrawal) Act 2018. However s7A(1) then provided that:
- all rights, powers, liabilities and obligations created or arising under the Withdrawal Agreement; and
- all such remedies and procedures provided for under the Withdrawal Agreement
were to be given legal effect in the UK. Article 67 of the Withdrawal Agreement provided that the provisions of the Regulation applied to legal proceedings commenced before the end of the transition period. The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 at Reg 8 provided that nothing within that Regulation affected the application of Art 67 of the Withdrawal Agreement and legislation amended or revoked by the 2019 Regulations continued to have effect as if the revocations had not been made. The result of this was that the Regulation continued to govern jurisdiction in claims commenced prior to 31 December 2020, as this one was.
By s6(3) of the European Union (Withdrawal) Act 2018 any question as to the validity, meaning or effect of any retained EU law was to be decided by applying any relevant EU case law decided before IP Completion Day.
Re Matouskova [2015] was therefore the relevant and applicable EU case law. In that case the fact that approval was sought in succession proceedings did not mean it was a matter for succession law. The need to obtain approval from a court dealing with guardianship matters was a direct consequence of the status and capacity of the children and was a protective measure relating to the exercise of parental responsibility. Such authorisation to act on behalf of a minor fell within the scope of the Regulation.
In a case governed by the Regulation the court was to apply English law. In cases commenced after 31 December 2020, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children 2020 (the Convention) applied and, where the child was habitually resident in England, conferred jurisdiction in matters of parental responsibility on the English courts and required them to apply English law.
Section 3(1) of the Children Act 1989 provided that the mother had a clear responsibility to act in the child’s interests in relation to property to which they were entitled. Sections 3(2) and (3) provided the mother had not only rights and powers but also duties in relation to such properties. The wording was sufficient to cover steps which enabled the child to receive and recover property in their own name and enable a person with parental responsibility to receive or recover property held in their own name for the benefit of the child. It conferred on the court the power to make the order sought. Re AC [2020] applied.
In considering whether to make the order under s3, ss1(1) and (3) of the Children Act 1989 were to be applied and the welfare of the child was the paramount consideration. It was plainly in his best interests that the property be sold at a price higher than the current valuation. There was no disadvantage to him and the evidence was that the property was a financial burden. It was also in his best interests that his share of the proceeds be applied for his education, maintenance and benefit rather than remain tied up in a property in a country where he no longer lived.
Claim granted.
JUDGMENT MASTER CLARK: [1] In this Part 8 claim dated 24 November 2020, the claimant, Bibi Marium Shanavazi, seeks an order authorising her, on behalf of her minor son, Ilyas Firas Shanavazi (‘Ilyas’) to enter into a contract of sale of a property in Germany, and to convey the property to the purchaser. [2] The …Continue reading "Re Shanavazi [2021] WTLR 1037"