Hays v Hays

A minor’s capacity to deal with an interest in foreign immovable property is governed by the lex situs. Where the property is situated abroad, the English court may apply the foreign substantive law if England is the forum with jurisdiction. English law does not confer a general inherent jurisdiction to authorise disposal of a minor’s property, and parental responsibility alone does not establish such a power. The court may nevertheless make an order where the applicable foreign law supplies the relevant power and the order is confined to the particular transaction. A vesting-order provision concerning property held on trust does not authorise a contract for the sale of foreign immovable property owned beneficially by the minor.

The claimant, a seventeen-year-old minor, owned a share in an apartment in Paris under French succession law. Her mother, who owned the remaining interest, wished to sell the apartment and apply the claimant’s share of the net proceeds for her education, maintenance and benefit. The proposed French sale required the mother to contract on the claimant’s behalf, but the French notary considered that an order from the English court was needed because the claimant was habitually resident in England.

The claim was brought under CPR Part 8 in the Chancery Division as a friendly claim. The central issues were whether the English court had power to authorise the transaction, which law governed the claimant’s capacity, and whether the claim belonged in the Family Division.

1. Order made. The court authorised the defendant to enter into the particular French contract of sale on the claimant’s behalf, with liberty to apply if circumstances changed. The draft contract was to be annexed. The claimant’s share of the net proceeds was to be settled in trust pending her attaining majority.
2. The issue was properly characterised as one concerning the claimant’s capacity to enter into a sale of immovable property and the means of curing any incapacity, rather than principally as a family-law welfare matter. Under English private international law, capacity to deal with immovable property is governed by the lex situs: Bank of Africa v Cohen [1909] 2 Ch 129.
3. French law governed the substance because the apartment was in France. It required judicial consent before a person exercising parental authority could sell a minor’s immovable property. Since the claimant was habitually resident in England, the English court could apply that substantive law as the court with jurisdiction.
4. English common law gave a parent or guardian no power to alienate a minor’s immovable property: Field v Moore (1855) 7 De G M & G 691. The English court also had no general inherent jurisdiction to dispose of a minor’s property, even for the minor’s benefit: Chapman v Chapman [1955] AC 429. The recognised exceptions, including salvage of trust property, maintenance from accumulated income and approval of compromises, did not apply.
5. Section 3 of the Children Act 1989 did not clearly authorise a parent exercising parental responsibility to contract for the sale of a minor’s immovable property. Section 53 of the Trustee Act 1925 was unavailable because the property was in France, did not authorise entry into a sale contract, and applied only to property held on trust for a minor. No trust had been created.
6. The claim could properly be determined in the Chancery Division. Even if allocation to the Family Division had been required, proceedings commenced in the wrong Division would not be void and could be transferred or retained there: Technocrats International Ld v Fredic Ltd [2004] EWHC 2674 (QB); Barber v Rasco International Ltd [2012] EWHC 269 (QB).
7. Obiter, the court identified the 1996 Hague Convention as a possible future route. Article 8 could permit an English court having jurisdiction under Article 5 or 6 to request the French authorities to assume jurisdiction where the property was situated in France.