David John Hand and Another v Richard George and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Rose |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] EWHC 533 (Ch) |
| Docket Number | Case No: HC-2016-000146 |
| Court | Chancery Division |
| Date | 17 March 2017 |
[2017] EWHC 533 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF THE HENRY FREDERICK HAND WILL TRUST
Royal Courts of Justice
The Rolls Building, London, EC4A 1NL
Mrs Justice Rose
Case No: HC-2016-000146
Jonathan Miller (instructed by Carpenter and Co) for the Claimants
Josh Lewison (instructed by Birketts Solicitors) for the Defendants
Hearing dates: 1 November 2016 and 3 March 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Henry Hand died on 9 June 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to such of their child or children who attained the age of 21, if more than one then in equal shares. The question that has arisen in this claim is whether adopted children count as "children" for the purposes of this will. The Claimants, who are the adopted children of Kenneth Hand, accept that under the domestic law in force, they are not included and their father's share of the Henry Hand trust would go to the Defendants, who are their cousins. However, the Claimants say that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The Defendants are the birth children of Joan George and the trustees of the Henry Hand trust. They stand to inherit if the law treats Kenneth Hand as having died without children. They argue that if Henry Hand had wanted to include adopted grandchildren as potential beneficiaries then he could have done so. Instead he used wording in his will which at the time he made the will excluded adopted children. They deny that the Claimants are entitled to rely on the Convention to achieve a different result. They say that there is no justification for applying the Convention to interpret an instrument that was drawn up before the Convention was even drafted. To allow the Claimants to inherit would subvert the intention of the testator.
Gordon Hand died on 15 July 1975 without any children. His one third share went to his brother and sister, Kenneth and Joan, half each for life and the remainder of each half to such of their children who attained the age of 21 and if more than one in equal shares. Joan George died on 24 August 1981 and the remainder interest in her now half of Henry's estate vested in the Defendants, Elizabeth Stanhope (known as Carolyn) (born on 22 December 1939) and Richard George (born on 5 March 1942). Kenneth Hand died on 17 August 2008. He was survived by David Hand and Hilary Campbell, the Claimants. David was born on 16 September 1947 and adopted by Kenneth and his wife on 5 March 1948. Hilary was born on 22 December 1949 and was adopted on 9 June 1950.
The relevant clause in Henry Hand's will is clause 6 which reads:
"…….my Trustees shall hold my residuary estate upon trust (a) as to one equal third part thereof (hereinafter called "Kenneth's Share") to pay the income thereof to my said son Kenneth Oliver Hilliary Hand during his life and on his death as to both capital and income thereof for his child or children who attain the age of twenty one years (subject to the proviso hereinafter contained) and if more than one in equal shares but if there be no such child then I declare that (subject to his life interest therein) my Trustees shall stand possessed of Kenneth's Share…"
The rest of the clause makes clear that if Kenneth has no children, then his share goes on his death to Gordon and Joan.
All the parties gave evidence at the short trial of this claim before me. All four witnesses were clearly truthful and sincerely believe that the disposition of the estate for which they contend would be fair and appropriate. Their evidence focused on two matters. The first was that after Kenneth's death the solicitors for the Trust initially accepted that the Claimants should inherit Kenneth's share of Henry's estate and only later apparently changed their minds and argued that they could not inherit because they are adopted. The second related to what contact David and Hilary had had with their relatives over the years; whether they were 'treated as part of the family' or not. I do not consider that either of these factual matters is relevant to the decision I have to make. There is no basis for requiring the Defendants to adhere to their initial view of the Claimants' entitlement, now that they contend that as a matter of law that view was mistaken. Further, there is no basis for regarding adopted children's rights as dependent in some way on how many holidays they spent with their relatives or how many Christmas cards they wrote, when the birth children do not have to prove any such connection to claim their entitlement. The question before me is a pure matter of law.
The domestic law on adoption
At the time Henry Hand wrote his will in 1946, the law relating to adoption was set out in the Adoption of Children Act 1926 ('the 1926 Act'). The 1926 Act provided broadly that a child remained the child of his or her birth parents rather than becoming in law the child of their adoptive parents. Section 5(2) dealt with an adopted child's entitlements to the estate of his natural and adoptive parents:
"5(2) An adoption order shall not deprive the adopted child of any right to or interest in property to which, but for the order, the child would have been entitled under any intestacy or disposition, whether occurring or made before or after the making of the adoption order, or confer on the adopted child any right to or interest in property as a child of the adopter, and the expressions "child," "children" and "issue" where used in any disposition whether made before or after the making of an adoption order, shall not, unless the contrary intention appears, include an adopted child or children or the issue of an adopted child."
That is the provision that was in effect at the date when David was adopted. This position was reversed by the Adoption of Children Act 1949 ('the 1949 Act') which provided that adopted children are treated as the children of their adopters and not of their birth parents:
"9.-(1) The provisions of this and the next following section shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property.
…
(3) In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order—
(a) any reference (whether express or implied) to the child or children of the adopter shall be construed as, or as including, a reference to the adopted person;
(b) any reference (whether express or implied) to the child or children of the adopted person's natural parents, or either of them shall be construed as not being, or as not including, a reference to the adopted person; and
(c) any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person,
unless the contrary intention appears.
…
(5) References in this section to an adoption order shall be construed as including references to an adoption order made before the date of the commencement of this Act; but nothing in this section shall affect the devolution of any property on the intestacy of a person who died before that date, or any disposition made before that date."
Thus at the end of section 9(5) there were two temporal restrictions on the application of the 1949 Act, the will had to be made after the adoption order and the disposition had to be made before the commencement of the 1949 Act. Neither of those conditions is satisfied here. That was the provision that was in effect in 1950 when Hilary Campbell was adopted.
The Adoption Act 1976 ('the 1976 Act') also provides that an adopted child shall be treated in law as the child of the adopter and not the child of any other person. Section 39 provides:
"(1) An adopted child shall be treated in law—
(a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnized);
(b) in any other case, as if he had been born to the adopter in wedlock (but not as a child of any actual marriage of the adopter).
(2) An adopted child shall, subject to subsection (3), be treated in law as if he were not the child of any person other than the adopters or adopter."
Section 39(5) and (6) of the 1976 Act deals with the temporal application of the status:
"39(5) This section has effect—
(a) in the case of an adoption before 1st January 1976, from that date, and
(b) in the case of any other adoption, from the date of the adoption.
(6) Subject to the provisions of this Part, this section—
(a) applies for the construction of enactments or instruments passed or made before the adoption or later, and so applies subject to any contrary indication; and
(b) has effect as respects things done, or events occurring, after the adoption, or after 31st December 1975, whichever is the...
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