Loco Parentis in UK Law

My Lords, I do not distinguish between the purchase of shares and the acquisition of shares upon allotment, and I think that the law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis, there is no such resulting trust but a presumption of advancement.

It is, I think, correctly stated in substantially the same terms in every text book that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell's Equity, 22nd Edition, at p. 122, which is as follows:

On a transfer from a man to his wife, children or others to whom he stands in loco parentis, equity presumes an intention to make a gift. Therefore in such a case, unlike the case where the presumption of resulting trust applies, in order to establish any claim the plaintiff has himself to lead evidence sufficient to rebut the presumption of gift and in so doing will normally have to plead, and give evidence of, the underlying illegal purpose.

Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man".

On those premises, that is to say in the absence of any challenge as to the propriety of what the local authority or its officers have done as distinct from their wisdom, I feel compelled, by the clear indication of the language to which I have alluded in the statute, to conclude that this matter of judging the present best interests of the child in the circumstances of this case has been placed by Parliament in the exclusive jurisdiction of the local authority.

Granted that "family" is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that.

The test has to be whether the relationship of the appellant to the deceased was one where there is at least a broadly recognisable de facto familial nexus. I would not define that familial nexus in terms of its structures or components: I would rather focus on familial functions. The question is more what a family does rather than what a family is. A family unit is a social organisation which functions through its linking its members closely together.