26 February 2018

January 2018 - Private Law

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Judgment of the Privy Council considering the law applicable to the beneficial ownership of joint bank accounts from ‘first principles.’

Whitlock v Moree [2017] UKPC 44

21st December 2017

  • The dispute relates to monies, totalling $190,000, held in a joint account by Mr Lennard and Mr Moree where all of the money was contributed by Mr Lennard.
  • The question in proceedings was whether upon Mr Lennard’s death, the beneficial interest passed to Mr Moore by survivorship or whether it formed part of Mr Lennard’s estate by operation of presumed resulting trust since he provided all of the money.The parties both signed an agreement on opening of the account including clause 20 which stated: JOINT TENANCY: Unless otherwise agreed in writing, all money which is now or may later be credited to the Account (including all interest) is our joint property with the right of survivorship. That means that if one of us dies, all money in the Account automatically becomes the property of the other account holder(s). In order to make this legally effective, we each assign such money to the other account holder (or the others jointly if there is more than one other account holder).’
  • Proceedings were brought by the residuary beneficiaries against Mr Moree seeking that a ruling that the balance in the joint account was held by Mr Moree on trust for all three beneficiaries rather than passing to him by survivorship.
  • The two questions the court considered were: 1) Does Clause 20 deal with the beneficial ownership of the joint account, or merely with the bare legal title to the chose in action against the bank represented by the account? and 2) Is the fact that Mr Lennard and Mr Moree opened the joint account by means of a signed written application containing clause 20 determinative of its beneficial ownership, as at the date of Mr Lennard’s death?
  • Having reiterated the first principles applied to disputes over beneficial ownership including that where relevant property is transferred to legal holders by written instrument, a statement as to beneficial ownership in that instrument is usually conclusive, the Court stated that those principles equally apply to money in a bank account.
  • On appeal it was submitted that clause 20 related only to legal title however the Board agreed with the Court of Appeal that clause 20 falls to be construed in its context, in a standard form of joint account agreement. The key phrases being “joint tenancy” and “our joint property with the right of survivorship” and “if one of us dies, all money in the Account automatically becomes the property of the other account holder(s).”
  • Therefore, the two holders of a joint account have by agreement with the bank expressly set out a declaration as to the beneficial interests in the account which on its true construction provides for any balance on the account to be the beneficial property of the survivor.
  • This was not a case for an open ended factual analysis of the subjective intention of Mr Lennard because the account opening forms were dispositive of the beneficial interest subject to any later agreement or variation. The appeal should therefore be dismissed.
  • Lord Carnwath and Lord Wilson dissented from the majority judgment of Lord Briggs, Lady Hale and Lord Sumption.
  • Lord Carnwath found nothing in clause 20 to indicate an intention to deal with the beneficial interests, rather than simply spell out the consequences of holding a legal estate in a joint bank account.

 

 

Decision of Theis J concerning an international surrogacy arrangement and the legal ramifications for the child, intended parents and surrogate mother

Y v Z & Ors [2017] EWFC 60

4th August 2017

  • The applicants, Y and Z, are the intended parents in a US surrogacy arrangement with W, the surrogate mother.
  • Y works in New York where he lives with the child, X, and his partner.
  • Z is currently living in London and has not seen X since October 2015.
  • W is a US citizen and was the host surrogate of X. Y is the genetic father and a donor egg was used. W’s legal parentage was extinguished under the law of Missouri with W’s agreement by court orders in October 2014.
  • Neither Y nor Z had parental responsibility in this jurisdiction or any legal status in relation to X. In accordance with s33 HFEA 2008 W is X’s mother and will remain so in this jurisdiction unless orders are made extinguishing that legal status.
  • The applications before the court were 1) the joint application for a parental order by Y and Z; and 2) Y’s application for leave to withdraw that application.
  • All of the requirements under s54 HFEA 2008 were met except 1) at least one of the applicants is domiciled in the UK and 2) X’s home must be with the applicants. These requirements need to be satisfied both when the application is made and at the time the court is considering making the parental order.
  • Theis J set out the legal framework for both of these requirements. He notes that domicile is a legal concept that must be met with the facts of the case.
  • Z asserted this jurisdiction as his jurisdiction of choice and a purposive interpretation of ‘home’ to include a situation where one of the applicants is not currently in the same jurisdiction as the child and not having contact. Y disputed these requirements and raised the issue as to whether the court can make a parental order against the wishes of one of the applicants.
  • Dealing firstly with the issue of jurisdiction, Theis J conducted a detailed analysis of the relevant factual background and concluded that Z did not establish that he was domiciled in this jurisdiction in February 2015, the time of making the application.
  • From 2012 until 2014, there was an ongoing debate between Y and Z about where they were going to live and this jurisdiction was never an agreed option. Of particular relevance was Z’s position in proceedings in Florida where he emphasised the settled nature of his residence in that jurisdiction.
  • Theis J stated that the hard facts relied on by Z such as period of time spent, qualification, working, citizenship, ownership of property and paying taxes in the jurisdiction were not sufficient to establish that he intended to permanently and indefinitely reside here to support him establishing this jurisdiction as his domicile of choice.
  • Theis J concluded that the circumstances of the case had been elevated by Z to support his assertion of a domicile of choice to enable the parental order application. In her judgment, it was more likely that Z retained his domicile of origin where he had ongoing strong ties with his family and links to his family business.
  • Therefore, the court was not required to determine whether the requirement that X must have her home with the applicants was met.

 

High Court order Female Genital Mutilation Protection Order until the child reaches 17 years

Re Z (A Child) (FGMPO: Prevalence of FGM) [2017] EWHC 3566 (Fam)

6th November 2017

  • This case concerned Z, a girl aged six and a half. Her mother (‘M’) is of white English Christian heritage and her father (‘F’) is from the Fulah community in Guinea.
  • M and F were married in 2007 and separated in late 2013.
  • There was extensive litigation between the parties since December 2013.
  • During these proceedings, findings of domestic abuse were made against F and an interim DVIP report was filed on 17 April 2015 which set out that F could not accept accountability for his abuse and violence and had difficulty separating out his interests from those of Z.
  • The case was transferred to the High Court on 23 February 2016 with the outstanding issues being M’s application for a prohibited steps order and an FGMPO.
  • On 30 March 2016, the case first came before the High Court and permission was given to instruct an expert witness, Dr Schroven, an expert on Guinea.
  • There was a delay in instructing the expert because F refused to give the expert witness information about his family or comment on his family, community or ethnic group.
  • At the hearing, the Court heard evidence from M and F. Russell J accepted M’s evidence that when she refused to allow Z to have her ears pierced, F spoke about FGM taking place. Even if he has changed his mind since then, his high status in the family may put him under greater pressure to adhere to cultural norms to maintain his status.
  • The expert’s evidence was that the vast majority of men and women of all age groups in Guinea agree that FGM should be practiced. The age for most FGM to take place is 5-9 years. There is also a total lack of protective measures that could be put in place because FGM is considered a family matter with disputes being settled by mediation authorities of religion, village or local or family elders. As most people believe FGM should continue this would provide little or no protection for Z.
  • The Court heard evidence from one of F’s sisters whose evidence that the practice of FGM had ceased was in direct conflict with the expert evidence. She did not provide any independent expert evidence that she had not undergone FGM and as there was no conclusive evidence, Russell J was unable to reach the conclusion that she had not undergone FGM.
  • Russell J applied the legislative framework for FGMPOs [set out at paragraphs 36-39] by which the court is given the power to make an FGMPO for the purpose of protecting a girl against the commission of an FGM offence or protecting a girl against whom FGM has been committed. Under schedule 2 Paragraph 1(2) FGMA 2003 the Court is required to have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the girl to be protected. FGMPOs can include prohibitions, restrictions and requirements and such other terms as appropriate.
  • Her Ladyship also considered section 1(1) Children Act 1989 and the United Nations Convention on the Rights of the Child.
  • After balancing the desirability of Z being able to visit Guinea and have contact with F’s culture and heritage against the risk to her of FGM, Russell J ordered an FGMPO to remain in force until Z’s seventeenth birthday. During school holidays and when Z is staying with F, F has to surrender his passport to M’s solicitors.  

 

 


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