Hand & Anor v George

Convention rights may affect the construction of a pre-existing will where the relevant succession question arises after the Human Rights Act 1998 came into force. Domestic legislation which causes adopted children to receive less favourable inheritance treatment than natural children may infringe Articles 14 and 8 of the Convention.

The court must distinguish Convention rights from rights created by the Human Rights Act. The Act is not generally retrospective, but its interpretative obligation may operate prospectively in relation to a post-commencement event. Section 3 may be used to read down legislation where doing so is compatible with the statute’s underlying scheme and does not cross the boundary between interpretation and amendment.

Henry Hand’s 1946 will gave each of his three children a life interest, with the remainder to their children attaining 21. Kenneth Hand died in 2008, survived by David Hand and Hilary Campbell, whom he had adopted in 1948 and 1950.

Under the Adoption of Children Act 1926 and transitional provisions in the Adoption Act 1976, the reference to Kenneth’s children did not include the claimants. The claimants relied on Articles 14 and 8 of the Convention and sought a Convention-compliant construction of the relevant legislation. The defendants relied on domestic law, freedom of testation, vested property rights and the non-retrospective effect of the Human Rights Act 1998.

The central issues were whether the domestic law was discriminatory, whether the claimants could enforce Convention rights in the domestic court, and whether section 3 of the Human Rights Act permitted the relevant transitional provision to be read down.

1. Convention infringement. The domestic legislation, insofar as it continued to exclude adopted children from the relevant testamentary class, infringed Article 14 taken with Article 8. The will itself was private and non-discriminatory on its face; the relevant state conduct was the legislative rule governing its construction.
2. Human Rights Act framework. Wilson v First County Trust Ltd (No 2) established that Convention rights and rights created by the Human Rights Act are distinct. The Convention does not form part of domestic law as such, and the Human Rights Act does not generally operate retrospectively. The question is whether applying the Act to the issue before the court would alter accrued rights or affect a completed pre-commencement transaction.
3. The relevant succession question arose only on Kenneth Hand’s death in 2008. Applying the Human Rights Act to determine whether he died leaving children was therefore prospective, rather than a retrospective alteration of a completed transaction. The defendants’ inheritance interests were vested in domestic succession terminology, but they had not done anything to avail themselves of those rights in the sense relevant to the presumption against alteration of vested rights.
4. Reading down. Section 3 of the Human Rights Act is a powerful and obligatory interpretative tool, but cannot be used to depart substantially from a fundamental feature of legislation. The Adoption Act 1976 proceeded on the basis that adopted children were to be treated as the children of their adopters. Reading paragraph 6 of Schedule 2 as subject to rights already acted upon was consistent with that scheme and did not amount to judicial amendment.
5. The court therefore read paragraph 6 of Schedule 2 to the Adoption Act 1976 as if the exclusion applied only where the beneficiary had done something to avail himself or herself of the property right before the Human Rights Act 1998 came into force. The claimants were included as Kenneth’s children and were entitled to inherit his share. The claim succeeded.