I’m dealing with an application to the Chancery Court for an order authorising the mother of a minor, habitually resident in England, to convey German property, on the minor’s behalf, which the minor has inherited. Is there a jurisdictional basis under English law of guardianship enabling the court to make an order for the protection of a minor’s property? The issue of the jurisdiction of the English court (see (so Brussels IIa or Hague Convention) in relation to the property of a minor who is habitually resident in England is not in question. It is the English substantive law to be applied that is in question.
If I read your question correctly, the type of application you’re envisaging is discussed in re AC (a child) [2020] EWFC 90 (available here: AC, Re (A Child) (Rev 1) [2020] EWFC 90 (11 December 2020)). There’s conflicting dicta on whether the court can authorise a parent to contract to sell a child’s property as being within s 3 Children Act 1989. re AC is the latest word (that I’m aware of) and says that it can (para 21), that parties should not be dissuaded from seeking orders authorising a sale by dicta to the contrary in Hays v Hays [2015] EWHC 3825 (Ch), and that in the ordinary course of events applications should be made to the Family Court (para 23).
Thank you FrancisNg. I wasn’t notified of your response which would have been very useful at the time. In my case, the Master analysed both cases and said that she preferred the reasoning in Re AC. So now, we have two decisions in favour of section 3. If you’re interested, the case is Re Shanavazi [2021] EWHC 1832 (Ch).
Glad it ended well - good to know that re AC is being followed.
Thanks Francis. Do you think in future that such applications should be commenced in the Family or Chancery court? Although the judge in Re AC stated the Family court was appropriate, at the commencement of this case, I was not able to get a Family barrister to deal with it and their clerks kept referring me to Chancery barristers. Re AC was brought in the Family court (represented by Penelope Reed who I understand to be a Chancery barrister) whilst Hays v Hays was in the Chancery court. Re Shanavazi was in the Chancery as well.
I’m a bit surprised no family barristers wanted it, but it sounds like the type of case where you issue in the family court but use chancery barristers (as you sometimes see with Inheritance Act claims). I’d be nervous about issuing in chancery when there’s an explicit statement suggesting litigants shouldn’t do so.
Dear @FrancisNg - I got here in search for how to proceed in respect of life insurance payout to 3 minor children nominated as beneficiaries. Family is ordinarily resident in the UK making a claim against a Group Life Policy that a UK employer holds with a US insurer. Mum is surviving parent and needs money for children’s upkeep but insurer cannot payout to children under the age of 18. For mum to receive the money, she needs to have Court Appointed Guardianship of each minor child’s estate.
I quote verbatim what the Insurer specified If a minor is the beneficiary - A copy of the court order appointment of the legal guardian of the property and/or estate of any minor child. (Please note: custody or guardian of a person does not qualify as guardianship).**
To which court does mum apply to? Is it not enough that she is guardian already by virtue of s3? How does a mum who already has parental responsibility under s3 of Children’s Act go about obtaining this order? Could not see anything in Family Court forms.
I’m afraid I don’t know the answer off-hand - at first glance I suspect that if you need a court order it’ll need to be from a family court.
Like @FrancisNg I believe this is one for a Specific Issue order under Section 8 of the Children Act 1989 which will authorise the mother to accept the funds. Fortunately, since Re AC, there has been another case decided on by the same judge - Mr Justice Peel - in the family courts and he has given very comprehensive guidance in that case on how to proceed. The case is Re B [2022] EWFC 7, 2022 WL 00493980. The summary is that you will have to go to the Family Courts and you will commence the application with Form C100. Some of that form will not be ideal for this kind of application but you just ignore those sections especially the requirement in the form for mediation before issuing the application. Let me know if you need any further information. Best of luck!