Hays v Hays [2015] EWHC 3825 (Ch)

Case No HC-2015-000680[2015] EWHC 3825 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 30 December 2015
Before
MASTER MATTHEWS
Between
Estelle Hays (a child proceeding by her litigation friend, Frank Howard)ClaimantJulie HaysDefendant
April Plant (instructed by Watson Legal) for ClaimantThe Defendant appeared in person for in personHearing Hearing date: 10 September 2015
JudgmentMaster Matthews :Introductory
[1]This is a claim under CPR Part 8 by Estelle Hays, a minor acting by her litigation friend, Frank Hancock (for whom a certificate of suitability has been supplied), against her mother Julie Hays. The claim form was issued on 27 February 2015. It is however a friendly claim. The Defendant filed an acknowledgement of service on 12 April 2015, indicating that she did not intend to contest the claim. The matter was not heard in private, and I have not been asked to anonymise this judgment. Having considered the matter I see no need to do so, notwithstanding that it concerns a minor.[2]In these proceedings, Estelle seeks an order from the court that her mother be appointed as her agent to enter into a contract of sale of her interest in a French immovable, an apartment situated in the first arondissement of Paris, in France. (Instead of using the domestic English law terms ‘real’ and ‘personal’ in relation to property rights, I refer throughout this judgment to immovable and movable property, because(i) this case deals with land in France,(ii) they are the usual terms employed by English lawyers dealing with private international law, and(iii) they are more easily capable of being translated into French and other languages than the technical legal terms ‘real’ and ‘personal’. At the same time, whilst they are close enough for present purposes, it should be borne in mind that they are not exact equivalents.)[3]Estelle’s parents were formerly the co-owners of two immovable properties in France, the one in Paris just mentioned, and another in Nice. Rather surprisingly, it is not made clear in the papers before me whether they owned these properties en tontine or en indivision, and if the latter in what shares. The former means that the original purchase of the property is subject to a special provision that the property in effect belongs from the beginning to the survivor of the co-owners. In functional, though not legal, terms it resembles the effect of a joint tenancy in English law. I know from my own professional and personal experience that it is rare in France, and practically unheard of amongst ordinary French people. Co-ownership en indivision in French law, on the other hand, is rather like legal tenancy at common as it existed in English law prior to 1926.[4]Tragically, Estelle’s father died in 2007. If Estelle’s parents had owned the properties en tontine, they would presumably now belong to the Defendant, Mrs Hays, absolutely, and there would be no problem. She could sell either apartment on her own. But the notary dealing with the proposed sale of the Paris apartment thinks there is a problem and that Estelle has an interest in the apartment which must be dealt with. Since it is the duty of the notary’s duty to ascertain the title to the property, I must assume that the notary considers that Estelle’s parents owned the apartment en indivision, or at any rate that the effect of any tontine clause is overcome by the requirements of public policy that Estelle must inherit a minimum share of the patrimony of her father.[5]At all events, when Estelle’s father died, his will left to the Defendant so much of his share in the two French properties as he was permitted to do by French law. The evidence of French law in the papers is that Mr Hays was only able to deal by gift inter vivos or will on death with a maximum of one quarter of his half share in each property, because the other three quarters had to be left to his daughter Estelle, as her indefeasible inheritance right, making her a so-called “forced heir”. If Mr and Mrs Hays were co-owners in equal shares, this would leave the Defendant with five eighths of each property, and Estelle with the remaining three eighths. Unlike English law, French law permits a minor to own immovable property directly in her own name.[6]When I first read the papers at the end of June 2015, I indicated to the Claimant’s solicitors that the claim was not straightforward, and suggested that the parties appear before me. I therefore heard counsel for Estelle in support of the claim and the Defendant in person at a hearing on 10 September 2015. As mentioned above, the Defendant was equally anxious to secure an order that would enable the sale of the property to go ahead. At the hearing I said that the problem seemed to be that the French court would not authorise this transaction on behalf of the Claimant because she was resident in England, and was looking to the English court to do so. I therefore suggested that the parties should seek to obtain evidence of how the French court would approach the problem if the Claimant were habitually resident in France.[7]The Claimant’s solicitors having made enquiries were unwilling to spend the significant sum required by a French lawyer whom they consulted, and so eventually in December sent me two published articles dealing generally with the problem. These do not however assist at all. They do not contain any useful information about what a French court would do if Estelle were habitually resident in France.[8]At that point I could have simply rejected the claim, on the basis that I did not have the evidence I needed to resolve it in favour of the order sought. But given the increasing importance of problems such as this in modern times, and the dearth of information apparently available, in all the circumstances I decided to look into the matter myself, with the assistance of a French avocat who gave me some advice on French law. I refer to this further below. But the course which I have been obliged to take does mean that more time has elapsed than I would have liked.

The evidence

[9]The factual evidence was supplied by a witness statement, dated 23 February 2015, of Mr Frank Howard, the Claimant’s litigation friend. Unusually, in addition to what Mr Hays says himself, his statement exhibits a written advice from English counsel with (so far as I can see) no qualification in French law, but who proceeds to deal with both the factual circumstances of the case and the arguably applicable French law. Since the claim is not opposed, indeed the Defendant also wishes the order to be made, I have taken this further information into account.[10]The factual evidence taken altogether satisfies me that the Paris property is in such a poor condition as to need considerable work on it even to make it capable of being let commercially, so as to bring in an income. Mr Howard says on advice from an estate agent that this will cost some 25,000 to 30,000 Euros. He also satisfies me that Mrs Hays and Estelle do not have the funds available to carry out this work. In any event, estate agents do not consider that the apartment, even renovated, would be easily lettable, as there is no lift and it is on the fifth floor of the building.[11]Mrs Hays has therefore reached the conclusion that, despite the emotional attachment that she and Estelle have for the property, the best thing to do is to sell the Paris property and to use the proceeds both to improve the Nice property and also to spend some of them on Estelle’s education. The evidence is that Estelle herself agrees with this course. She is now seventeen years old, and, whilst she remains a minor in law until her next birthday, her views clearly should be taken into account.[12]A Paris estate agent has inspected the Paris property and prepared a report on it. This concludes that the property requires renovation, and is worth between 270,000 and 290,000 Euros, but recommends an asking price of 310,000 Euros, in case a purchaser falls in love with it and is willing to pay a higher price (the French original of the report puts this rather better than I can in English). In each case the value is stated to be net to the seller, so the actual price to the buyer will be higher, to take account of agent’s and notary’s fees, and taxes. However, in an email dated 23 February 2015 from the same agency, the price quoted is 276,000 Euros, including an 11,000 Euro agency commission, so leaving a net value to the seller of 265,000 Euros. A purchaser has in fact now been found, willing to pay 275,000 Euros for the apartment, before taxes and costs.

The problem stated

[13]But in order to sell the property it will be necessary to enter into a contract of sale. The formalities for selling a French immovable are of course governed by French law, and a notary will be required in order to receive the contract and to give the requisite publicity to the act of sale. (For clarity I add also, though it does not affect the substance of the case, that unlike English law, which separates the contract and the conveyance, French law normally runs them together in a single act.)[14]Under French law, on the factual assumptions made above, Estelle owns a share of the property, but being a minor similarly cannot herself contract to sell her interest. As I explain below, under French law in such a case the French court would be able to appoint a person with parental responsibility, in this case her mother, to enter into a contract of sale on her behalf. However, under English law Estelle as a minor cannot contract to sell land, nor can she appoint an agent to bind her: see Doe d Thomas v Roberts (1847) 16 M & W 778.[15]The evidence in this case suggests that the notary is seeking an order of the English court in order to protect the purchaser against any claim by Estelle in the future. I infer that this is because the French court will not make such an order in Estelle’s case. I further assume that this is because she is not habitually resident in France, but in England, and is therefore amenable to the jurisdiction of the English court rather than the French. I add that I have no information on Estelle’s citizenship, and on whether that is at all relevant to the jurisdiction of the French court in this matter.[16]The notary appears to have assumed that substantive English property law mirrors French law, and protects minors and their property rights (and purchasers and theirs) in a similar way. Unfortunately, as can be seen from the following discussion, that assumption is wrong. Estelle, by her litigation friend, nevertheless seeks an appropriate order from the English court. Mrs Hays, the Defendant, would consent to such an order being made. The question is therefore what power the English court has to make such an order.

English law

[17]The first point is that the property systems of France and England are fundamentally different, and at several levels. I need not deal here with the full impact of the feudal system on English property law, compared to the Roman law idea of dominium in the civil law, leading to the ownership of land (a physical approach) in the latter systems, but to the ownership of estates and interests in land (a metaphysical approach) in the former.[18]I must however mention the existence and use of the trust, unknown in France but essential to modern English property law. The trust enables the English property owner in effect to fragment property rights, and thus to create structures which perform important social functions which in other systems are performed (if at all) by separate legal institutions. In particular the trust facilitates splitting the ownership and management of assets from their enjoyment. So the mentally infirm, the prodigal, the vulnerable, and the minor can all enjoy the benefit of property rights without being owners of them, and therefore without having the burden of management of them. The same applies indeed to those who are intended to benefit in the future, but are as yet unborn.[19]In particular, in English law, by virtue of the Law of Property Act 1925, s 1(6), a minor cannot since 1926 be a legal owner of English land. Instead, he or she can enjoy it by virtue of being a beneficiary of a trust of land. Nor can a minor inherit the legal ownership of English land, though she can be the beneficiary of a will trust of land where there is a will, or of a statutory trust of land for her benefit imposed by the law of intestacy if there is not. So the minor is not concerned with questions of management, including disposal. Such questions are exclusively in the hands of the legal owners, trustees (who of course must account to the beneficiaries for their management). Accordingly, in modern times there is generally no need, and therefore no role, for the English court to authorise the disposal of English land enjoyed by minors.[20]The second point is that the parent or guardian of a minor has no power at English common law to alienate the minor’s immovable property (Field v Moore (1855) 7 De G M & G 691, 709-710), and the English court has no inherent jurisdiction under English law to make orders disposing generally of the property rights of minors, even if such disposal is unquestionably for their benefit (Chapman v Chapman [1955] AC 429; see especially at 443-445 and 450-451).[21]There are some rare exceptions to this latter principle, such as the salvage of trust property (Re Jackson (1882) 21 Ch D 786), the provision of maintenance out of accumulated income (Re Walker [1901] 1 Ch 879), and the approval of compromises of genuine disputes involving minors (Chapman v Chapman [1955] AC 429, 445, 457, 469). But it has not been suggested anywhere in the papers, or at the hearing in September, that this case falls into any of these exceptional categories.[22]Before 1926 minors could legally own land, and the wardship jurisdiction (in French terms, a kind of judicial tutelle) of the High Court was the means by which, historically, English law managed any of their property rights which did not arise under trusts. The wardship jurisdiction was transferred from the Chancery Division to the newly named Family Division in 1970. It is not much used merely for property rights today. There is no suggestion that I have seen that Estelle is a ward of court (or should become one), and therefore that jurisdiction has no role to play in this case.[23]Given that, as just explained, a minor cannot nowadays be the legal owner of immovable property, the lack of a general power to authorise dealings with minors’ property is less of a problem than it might otherwise have been. But what it does mean in the present case is that, if the parent or guardian is to have power to sell Estelle’s share of the apartment on her behalf, or the English court is to have jurisdiction to make such an order as is being sought, it will have to be by virtue of some other law, or of some positive enacted law.[24]Counsel for Estelle in her skeleton argument referred to the Children Act 1989, s 3:
“(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. (4) The fact that a person has, or does not have, parental responsibility for a child shall not affect— (a) any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or (b) any rights which, in the event of the child’s death, he (or any other person) may have in relation to the child’s property. (5) A person who— (a) does not have parental responsibility for a particular child; but (b) has care of the child, may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.”
[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 s 3 authorises the Defendant to dispose of Estelle’s immovable property rights. Section 3(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 some doubt (cf Re Chatard’s Settlement [1899] 1 Ch 712). But it is striking that there is no mention anywhere in s 3 of disposal, which goes far beyond receipt and recovery. Taken as a whole, I am not satisfied at present that this section confers power on those exercising parental authority to enter 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 arising under the Children Act 1989 are assigned, by the Senior Courts Act 1981, s 61 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.[27]Ms April Plant, counsel for Estelle, in her skeleton argument originally sought an order under s 53 of the Trustee Act 1925. This section, which is one of a series of provisions of the Trustee Act enabling the making of so-called vesting orders, provides that:
“Where an infant is beneficially entitled to any property the court may, with a view to the application of the capital or income thereof for the maintenance, education, or benefit of the infant, make an order— (a) appointing a person to convey such property; or (b) in the case of stock, or a thing in action, vesting in any person the right to transfer or call for a transfer of such stock, or to receive the dividends or income thereof, or to sue for and recover such thing in action, upon such terms as the court may think fit.”
[28]This contention has now been abandoned, after I pointed out at the September hearing that this section does not apply to enable a vesting order to be made in relation to immovable property in France. By s 71(3) of the 1925 Act, “This Act, except where otherwise expressly provided, extends to England and Wales only”. And s 56 of the Act provides that “The powers of the court to make vesting orders under this Act shall extend to all property in any part of His Majesty’s dominions except Scotland.”[29]Although s 56 picks up the invitation of s 71(3) to extend the scope of the vesting provisions of the Act beyond England and Wales, given (amongst other things) the Treaty of Amiens 1802, it cannot and does not extend them as far as France. In any event, s 53 only enables(a) an order appointing a person to convey the property, or(b) a vesting order, to be made. It does not enable the making of an order authorising a person to enter into a contract for the sale of the property, which is apparently what the notary has asked for (even bearing in mind the coincidence between contract and conveyance in normal French practice).[30]There is a further point on s 53, not discussed at the hearing. It is whether it is restricted to cases where there is a trust of an asset for the benefit of the child, or whether it extends to a case where the child is its legal and beneficial owner. In my view the former is correct, for three reasons.[31]The first is statutory context. Section 53 is a section in the Trustee Act 1925, and not in, say, the Law of Property Act, or even the Administration of Estates Act. (Although it is correct to say that the provision now in s 53 was first enacted by the Law of Property Act 1922, s 114, this was only as a legislative device for consolidating the Trustee Act 1893 into the 1925 Act with amendments. This part of the 1922 Act never in fact came into force, being repealed at the moment that the 1925 Act came into effect.) Moreover, s 53 is to be found in a part of that Act, Part IV, headed “Powers of the Court”, and a sub-division of that part, headed “Vesting orders”, whose sections are concerned with trusts, and with vesting orders involving trusts. But I accept that the argument from context merely sets the scene. It is not conclusive of itself.[32]The second reason is the scheme of the 1925 legislation. This is that, as already pointed out, a minor cannot be a legal owner of land at all. So excluding land means that, if this provision applied to legal ownership too, it could only apply to personalty (ie movables). But the terms of the section are perfectly general, and do not warn the reader of any such restriction. None is identified in the textbooks or other commentary. As already mentioned, s 53 was first enacted as s 114 of the Law of Property Act 1922 (in a part of that Act dealing with trust law), designed to lead directly into the 1925 legislation, which was itself intended to reform English property law in radical ways, including a reduction in the number of legal estates in land and a prohibition on minors’ owning such estates. Section 53 is not therefore a hangover from an earlier era, at a time when minors could own legal estates in land. It is a new provision, part of the new system.[33]Thirdly, the section refers to a child being “beneficially entitled” to property. This is an apt description of a child who is a beneficiary of a trust, but is not a natural description of one who legally and beneficially owns an asset. I have therefore taken the trouble to look at all the reported cases which I could find concerning s 53. All of them without exception concern the interests of minors under trusts. For all these reasons, taken together, I conclude that s 53 applies only to property held on trust for a minor.[34]Nothing daunted, Ms Plant valiantly argued that there was indeed a trust of the French property for the benefit of Estelle to the extent of three-eighths, of which the Defendant Mrs Hays was the trustee, and that therefore the court might make an order under its inherent jurisdiction over trusts, or under s 57 of the Trustee Act, to authorise Mrs Hays to sell the Paris property on behalf of Estelle as well as herself.[35]This contention also fails, however. There was and is no trust for Estelle of the whole or any part of the Paris property. There has never been any act, written or unwritten, by which a trust of this property was created. Even if there were such a trust, there is nothing whatever to make the Defendant a trustee of it. She was not and is not the legal owner of the whole apartment, including that part held for Estelle, but only of that part which belongs absolutely beneficially to herself (possibly together with a usufruct over the rest: the papers are not completely clear about this, but it makes no difference).

French law

[36]Although in English law Estelle could not hold a legal estate in land, and on the death of her father could not inherit such a legal estate (and indeed, under English intestacy rules, for example, would be the beneficiary under a statutory trust), English law has nothing to do with the substance of the matter. The immovables are French, and therefore, according to English notions of private international law, French law governs the succession to them. Under that law (which, as Ms Plant says, does not know the institution of the trust) Estelle has become the full legal owner of a certain share of each property. The difficulty is what she can then do with them.[37]I am not qualified in French law, although I speak and read French fluently, have bought and sold French properties in a private capacity, when in private practice advised on French cross-border successions, and have for many years taught postgraduate courses in comparative property and comparative inheritance law. So I have some familiarity with property and inheritance in civil law systems in general, and in the French legal system in particular. Even so, I cannot give evidence to myself. Fortunately, I have had the considerable benefit of specific French legal advice on this subject from Me Jean-Marc Tirard, avocat à la cour, and his daughter, Marie-Amélie Tirard, also avocat à la cour.[38]They say, and I accept, that under French law parents of a minor, acting as the legal administrator of their minor child’s property, cannot enter into a contract between a willing buyer and a willing seller to sell an immovable belonging to that child without the consent of a French judge, the juge des tutelles. They refer to Art 389-5 of the Code Civil, which in part provides (my own translation): “Even when agreed between them, the parents cannot, without the consent of the juge des tutelles, sell freely at arm’s length an immovable or a commercial property belonging to the minor, or bring it into a company, nor take out a loan in the name of, or renounce any right belonging to, the minor”.[39]They also tell me that this article will be repealed as from 1 January 2016, and replaced by a provision to the same effect in Art 387-1 of the Code Civil (again, my own translation): “The legal administrator may not, without the prior consent of the juge des tutelles, sell freely at arm’s length an immovable or a commercial property belonging to the minor”.[40]Here one of the two parents is dead, and the position is a fortiori. The position as stated under French law is confirmed in a work which I have read, entitled Droit des Mineurs, 2nd ed 2014, at paras 929-31, 977-78, by Philippe Bonfils and Adeline Gouttenoire, two professors of law at French universities. It is thus clear to me that, if Estelle were habitually resident in France, the juge des tutelles would have to authorise this sale, appointing the Defendant as Estelle’s agent, in order for it to go ahead.

Private international law

[41]Private international law is that part of every legal system which regulates the law by which acts are to be governed when there are foreign factors involved. In the present case, for example, it appears that the French courts will not as things stand authorise the Defendant to enter into the contract for the sale of the apartment on behalf of Estelle, apparently because she is habitually resident in England, not France, and even though the apartment itself is in France. (That said, I deal later with a possible route for the French court to acquire jurisdiction in such a matter as this.)[42]The forum of this claim is England. So I must look in the rules of English private international law to see by which law a case such as this, in which English and French elements combine, should be decided. Before I can identify the relevant choice of law rule, however, I must characterise the problem. There are some elements in the case which make it seem like a problem about looking after the best interests of a minor, and so falling into the realm of family law. But in my judgment this case is best characterised as a problem concerning the capacity of a person to enter into a sale of immovable property, and what can be done to cure any incapacity there may be.[43]The English rules of private international law provide that a person’s capacity to deal with immovable property should be determined by the law of the place of the immovable, the so-called lex situs: Bank of Africa v Cohen [1909] 2 Ch 129, CA. In the present case that is French law. French law says that a minor cannot herself deal with it, but that someone with parental authority can be authorised by the court to deal with it on her behalf. Estelle is habitually resident within the United Kingdom, in England, and is therefore within the jurisdiction of the English court.[44]If French law governs the substance, but the French court has no jurisdiction (for example, because Estelle is not habitually resident in France), then the English court, as the court with jurisdiction, should apply French law as the applicable law. Here the English court would be acting as the court with jurisdiction to perform the function required under the relevant French law relating to the sale of the immovable property of a minor.[45]That seems right to me. French law has given Estelle, a minor, a share of this French immovable property. French law – substantive if not procedural – ought to provide for how it is to be dealt with, even if it is the English court, as the one having jurisdiction, which actually applies that law. I should add that I raised this possibility briefly at the September hearing, but of course counsel was not forewarned of it, and there was no argument on the point. But counsel did not put forward any objection either.

Which Court, and which Division?

[46]Where English law (including private international law) confers power on a court to do a thing, the High Court of England and Wales has universal jurisdiction, except to the extent (if at all) that it has been cut down by legislation. In the High Court, the allocation of different types of case is carried out by the Senior Courts Act 1981, s 61 and Sch 1 para 3. The latter provision says (so far as material):
“To the Family Division are assigned: … (b) all causes and matters … relating to - … (ii) the exercise of the inherent jurisdiction of the High Court with respect to minors, the maintenance of minors and any proceedings under the Children Act 1989, except proceedings solely for the appointment of a guardian of a minor’s estate…”
(emphasis supplied).[47]So proceedings for the appointment of a guardian to the minor’s estate are not allocated to the Family Division, and can be brought in the Chancery Division. But if the case depends upon the inherent jurisdiction of the court with respect to minors, it is allocated to the Family Division.[48]As I have already said, the English court has no inherent jurisdiction to dispose of Estelle’s immovable property, nor to authorise anyone else to do so. If it can authorise the Defendant to do so in this case, it is only by applying French law as the applicable law by virtue of the rules of private international law. In my judgment this is not a matter of the inherent jurisdiction of the English court with respect to minors within s 61 and Sch 1 para 3, and so is not allocated to the Family Division. It is therefore a claim that may properly be brought in the Chancery Division.[49]But even if I am wrong about that, it is clear that a claim brought in the wrong Division of the High Court is not void. It is merely liable to be transferred to the correct Division. Even then, the judge before whom it comes in the “wrong” Division can nevertheless decide that it is appropriate to deal with it there, and not to transfer it after all: see eg Technocrats International Ld v Fredic Ltd [2004] EWHC 2674 (QB); Barber v Rasco International Ltd [2012] EWHC 269 (QB).[50]This is a matter which was started as long ago as February 2015. It was considered to be urgent then. Because the legal basis for the claim as stated in the papers was weak, it was necessary to hold a hearing instead of dealing with the matter without one. Despite my explaining at the hearing what I thought was needed, unfortunately this did not lead to a gathering and deployment of the necessary material, and it has in effect been left to me to try to obtain, with the aid of a friendly French lawyer, what was needed.[51]I have now done so. Whilst I cannot be confident that I, sitting in the Chancery Division, fully understand the relevant English family law jurisdiction, I have at least reached a point where I can see my way to providing the order which the Claimant seeks, and the Defendant consents to, without (I hope) trespassing upon substantive family law. I therefore see no reason why I should adjourn this matter yet further, with consequent loss of time, and possibly the loss of the prospective purchaser, merely in order that it may be transferred to the Family Division for any family law points to be bottomed out. I will therefore deal with it here and now.

Decision

[52]On the evidence that has been presented to me, I am satisfied that it is in Estelle’s best interests to sell the Paris apartment and apply the net proceeds, so far as due to her share, for her education, maintenance and benefit. I will therefore simply make the order which I consider to be appropriate. This is to authorise the Defendant to enter into that particular contract of sale contemplated in the papers, on behalf of Estelle, but with liberty to apply in case of any change of circumstances. The order should annex the draft contract (in French).[53]However, there must also be suitable provision for dealing with the purchase proceeds of her share of the apartment, after deducting sale costs and any applicable taxes. It is likely that the best way to deal with these will be to settle Estelle’s share of such net proceeds in trust for her own benefit, taking account of appropriate tax advice, until she comes of age in September 2016. This will ensure that those funds (unlike the proceeds of the Defendant’s share) are not spent on things which benefit the Defendant rather than the Claimant. (I note in particular the stated intention to spend some of the proceeds on improving the Nice apartment, which mostly belongs to the Defendant.) I therefore invite the Claimant’s counsel to submit an appropriate draft order, including draft settlement, for consideration and if thought fit approval.

Footnote on jurisdiction

[54]I add this for the future. It seems to me there is another possibility, which however I have not had to explore in the circumstances of this case. This is to rely on the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996, under the auspices of the Hague Conference on Private International Law.[55]Ordinarily such a convention, being an international treaty, would have no direct effect in English law until its provisions were so incorporated by statute. But unusually this Convention was declared, by the European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc) Order 2010, SI 2010 No 232, to be a “Community Treaty” within the meaning of s 1(2) of the European Communities Act 1972. The effect of this is that the provisions of this Convention are directly applicable in English law: see Re P [2014] EWHC 2845 (Fam).[56]Article 5(1) of the Convention provides 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.” This is of course a provision dealing with procedural rather than with substantive law. It allocates jurisdiction between different states. It does not of itself confer upon the court of any given state any particular power. The word “jurisdiction” in Article 5 means ‘territorial’ jurisdiction, not ‘power’ jurisdiction: cf Mercedes-Benz v Leiduck [1996] AC 284.[57]But Article 8(1), (2), so far as relevant provides that:
“(1) By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either - request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or - suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

(b) a State in which property of the child is located, [ … ]”

[58]Accordingly, as it seems to me, it would have been open to me, instead of dealing with the matter as I have, to have requested the French court under Article 8(1) to deal with the matter, since it concerned a French immovable belonging to a minor. Given that French law confers express statutory powers on its judges to make appropriate orders for cases like this, that might have been a sensible approach. As it happens, of course, I have not needed to take that course in this case, for the reasons already given. But in another case in the future it may be the more appropriate solution. [Note: this text was revised on 30 January 2016 to correct minor spelling and syntax errors in paragraphs 8, 20 and 37.]

Cited in 3 later judgments