Case No. FD22P00083

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 [1899] 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.” 10.Applying the same reasoning, I am satisfied that it is appropriate to authorise the applicant to accept succession to the French estate on B’s behalf, and I therefore accede to the first limb of the application. 11.In Re AC, I did not deal directly with the second limb of the application, i.e. authorisation to enter into a contract for sale on behalf of a minor, as the point did not then arise. However, as is apparent from the passages of my judgment in Re AC cited above (in particular paragraph 21), I formed the preliminary view that such an authorisation would fall within the parameters of the exercise of parental responsibility, thereby permitting the court to grant the application, provided always that it is in the best interests of the child to do so. 12.In this case, the second limb arises directly as the applicant specifically seeks authorisation to enter into a contract for sale of the French property. Counsel for the applicant submits that I am entitled to, and should, so authorise. I acknowledge that I have received no submissions to the contrary, albeit I have previously noted the differing view of Master Matthews (as he then was) in Hays v Hays [2015] EWHC 3825 (Ch). Having now considered this aspect in fuller detail, and received very helpful and able written and oral submissions, I am satisfied that I do indeed have the power to authorise the applicant to enter into a contract for sale:i)I repeat my analysis in