The central question in Re N concerned a share in a property situated in Switzerland. Unlike the previously decided case law, this case relates to an inter-vivos gift.
What is parental responsibility?
Parental responsibility refers to the legal rights, duties, powers, responsibilities, and authority a parent has for a child and the child's property. Someone with parental responsibility has the right to make decisions about the child's care and upbringing and look after the child’s property. It also includes making decisions about the child’s education and medical treatment, as well as representing the child in legal proceedings. Parental responsibility generally ends when the child turns 18 but can be removed by the Court in some circumstances, particularly if it's in the best interests of the child.
Background:
This case concerned an application by the parents of a 15-year-old, N, for authorisation to accept a gift of one-third of a property in Switzerland on his behalf in the exercise of their parental responsibility.
N’s father owns the property and wants to transfer it in equal shares to N’s mother, N’s brother and N. Unlike under English law, minors are entitled to own property in Switzerland. But, because N is not domiciled in Switzerland, Swiss law requires the courts of the country where he is habitually resident to authorise the acceptance of the gift.
Decision:
The Court referenced two previous cases, Re AC [2020] and Re B [2022], where similar authorisations were sought for minors to accept overseas property. However, those two cases differed in that the authorisations were required due to forced heirship laws after a parent's death. Mr Justice Peel noted that, even though the circumstances are different, the legal principle remains the same.
The application was initially listed before a family judge at the Central Family Court and later allocated to the High Court due to the factual distinctions.
The evidence and documentation provided to the Court was comprehensive – with evidence from Swiss lawyers about the legal requirements in Switzerland. N was consulted and expressed contentment with the proposed arrangement. The proper procedure as outlined in Re B was scrupulously followed. Making such an order would however not prejudice N. Moreover, the application included a signed Deed of Agreement ensuring that N's father would cover all running costs and provide indemnities.
Consequently, the application was regarded as falling within the exercise of parental responsibility as it was in N’s best interest and in accordance with the overarching requirements of the paramountcy principle.
Implications:
This case clarifies that a declaration from the Court for the parents to accept a gift on behalf of a child can be achieved. Such principle applies to inter-vivos gifts and not only to them in the inheritance’s context. This judgement also highlights that courts will easily be convinced if provided with the right evidence and if such transfer is in the best interest of the child. Accepting such a gift falls within parental responsibility.