Hays v Hays

Hays v Hays

The English court, as the court of the minor's habitual residence, has jurisdiction to apply French law (the lex situs) to authorise the Defendant to enter into the contract of sale of the French property on behalf of the minor, as would be done by the French court if the minor were habitually resident in France. This is not an exercise of the court's inherent jurisdiction over minors under English law, but an application of French substantive law as required by English private international law.

Parties
Claimant: Estelle Hays; Litigation Friend for Claimant: Frank Howard; Defendant: Julie Hays
Jurisdiction
England and Wales
Judgment Date
30 December 2015
Procedural Posture
Part 8 Claim (friendly Claim) / Judgment After Hearing on Application for Order Authorising Sale of Minor's Property
Outcome
Claim allowed; order granted authorising Defendant to enter into contract of sale on behalf of minor
Legal Topics
Capacity of Minors to Dispose of Immovable Property, Jurisdiction of English Courts Over Foreign Property, Application of Foreign Law by English Courts, Parental Responsibility and Property Rights, Trusts and Minors, Sale of Immovable Property Owned by Minors
Private International Law Property Law Family Law Capacity of Minors to Dispose of Immovable Property Jurisdiction of English Courts Over Foreign Property Application of Foreign Law by English Courts Parental Responsibility and Property Rights Trusts and Minors +1 more

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Parties

Estelle Hays

Claimant

Frank Howard

Litigation Friend for Claimant

Julie Hays

Defendant

Procedural Posture

Part 8 Claim (friendly Claim) / Judgment After Hearing on Application for Order Authorising Sale of Minor's Property

Legal Issues

  1. 1 Whether the English court has jurisdiction to authorise the sale of a French immovable property owned in part by a minor habitually resident in England
  2. 2 Whether English or French law governs the capacity and process for such a sale
  3. 3 Whether the Defendant (mother) can be authorised to act as agent for the minor in the sale

Ratio Decidendi

The English court, as the court of the minor's habitual residence, has jurisdiction to apply French law (the lex situs) to authorise the Defendant to enter into the contract of sale of the French property on behalf of the minor, as would be done by the French court if the minor were habitually resident in France. This is not an exercise of the court's inherent jurisdiction over minors under English law, but an application of French substantive law as required by English private international law.

Court Disposition

Claim allowed; order granted authorising Defendant to enter into contract of sale on behalf of minor

Orders

  • Defendant authorised to enter into the specific contract of sale of the Paris apartment on behalf of Estelle Hays, with liberty to apply in case of change of circumstances
  • Order to annex the draft contract (in French)