Convention’s prohibition on discrimination may apply to pre-Human Rights Act wills

30 March 2017 by Rosalind English

Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment

The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.

Background Facts and Law

Henry Hand died in 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 their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.

The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained 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 argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed.

The court ruled that the relevant part of the Adoption Act should be read down so as to uphold the claimants’ rights not to be discriminated against under Article 14 in conjunction with Article 8.

Reasoning behind the Decision

The claimants’ principal difficulty was to show that the Human Rights Act 1998 conferred on them a right to seek a remedy for that infringement in the domestic court. But the 1998 did not generally have retrospective effect (Wilson v First County Trust Ltd (No.2) [2003] UKHL 40). Nor could the ECHR be applied retrospectively whenever the individual circumstances of a case indicated that the result of that application would, on balance, be fair.

The starting point for the case law on the application of the Convention to adopted and illegitimate children was Marckx v Belgium (appn No 6833/74, judgment of 13 June 1979). In that case the Strasbourg Court held that Article 8 of the Convention, by guaranteeing the right to respect for family life, presupposes the existence of a family. Article 8 makes no distinction between legitimate and illegitimate family, and that the Belgian Civil Code’s failure to recognise a legal bond between an unmarried mother and her child. The Court went on to hold that compliance with Article 8 does not merely compel the State to abstain from interference with family life but may impose positive obligations “inherent in an effective “respect” for family life”.

The principal authority on the application of the ECHR to adopted children is Pla v Andorra (69498/01) [2004] 2 F.C.R. 630. Pla confirmed the decision in Marckx that the right of succession between children and parents and between grandchildren and grandparents is so closely related to family life that it comes within the sphere of Article 8: paragraph 26. However, it was not right to state that the ECHR had become part of English law to such a degree that Pla had to be taken into account as an advisory opinion of the European Court of Human Rights whenever a domestic court interpreted a private instrument.

The task of the court was not to undertake a general balancing of the fairness of the parties’ claims, but to identify whether a right under the ECHR had been breached, and if so whether the 1998 Act provided a means of redress. Furthermore, Rose J observed that it was not correct to state that the Convention has become part of English law to such a degree that paragraph 62 of Pla must be taken into account as an advisory opinion of the ECtHR whenever a domestic court interprets a private instrument:

There may be member States of the Council of Europe in which the Convention has been absorbed into domestic law to such as degree but the United Kingdom is not one of them

Citing Lord Nicholls in another case In re McKerr (AP) (Respondent) (Northern Ireland) [2004] UKHL 12  Rose J emphasised that Convention rights are not identical to rights conferred by the Human Rights Act.

 The former existed before the enactment of the Human Rights Act 1998 and they continue to exist. They are not as such part of this country’s law because the Convention does not form part of this country’s law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the Human Rights Act. The latter came into existence for the first time on 2 October 2000. They are part of this country’s law. The extent of these rights, created as they were by the Human Rights Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the Human Rights Act came into force will be mirrored by a corresponding right created by the Human Rights Act. Whether it finds reflection in this way in the Human Rights Act depends upon the proper interpretation of the Human Rights Act.

On the other hand, the interpretation of Henry Hand’s will was not ‘over and done with’ before the HRA came into effect in the same way that the interpretation of Mrs Wilson’s consumer credit agreement in the Wilson case was a completed transaction before 2 October 2000. The question of whether Kenneth had any “children” within the meaning of the will only fell to be determined on his death, after the HRA has come into force.The conduct that was being challenged in the instant case as breaching the claimants’ rights under the ECHR was the failure of the 1949 Act and the 1976 Act to overturn s.5(2) of the 1926 Act. In the absence of Sch.2 para.6 to the 1976 Act, the reference to “child or children” in the testator’s will would have included the claimants, pursuant to s.39(6)(a) of the 1976 Act. The domestic law therefore breached the claimants’ Convention rights  by failing to ensure that the interpretative provision in s.5(2) of the 1926 Act had no continuing effect in relation to wills construed after the ECHR came into force. The importance placed by the ECHR case law on treating adopted children as fully the equals of natural children was consistent with the current position under English law and there was therefore no reason not to follow that case law under Pla.

Reading down Sch.2 para.6 so as to uphold the claimants’ rights not to be discriminated against would not be giving retrospective effect to the 1998 Act in a way that was inconsistent with Wilson. Lord Nicholls observed in that case that section 3 of the HRA is retrospective in the sense that it expressly applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the HRA came into force may have to be reconsidered and revised in post-HRA proceedings. Also in Wilson, Lord Hope considered that account must be taken of the purpose of the HRA, namely to give further effect to rights and freedoms guaranteed under the Convention which the United Kingdom has already signed and ratified:

99. … Its purpose is to ensure that legislation is read and given effect in a way that is compatible with Convention rights, so far as it is possible to do so, whenever the legislation was enacted. To restrict the application of the interpretative obligation, without exception, to “events” that happened or “transactions” entered into on or after 2 October 2000 would be to introduce a restriction which is not stated expressly anywhere in the 1998 Act. A restriction in such absolute and all-embracing terms would seem to be contrary to the intention of the legislation and incapable of being read into it by necessary implication.

In any event, the issue of the proper interpretation of the will only arose for consideration on Kenneth Hand’s death, which was after the 1998 Act came into effect; and since the defendants had done nothing to avail themselves of the remainder interest they acquired under the will in 1946, their rights were not vested in the sense used in Wilson to describe the kinds of rights that should not be interfered with, even by the prospective operation of legislation to change the rights and obligations of parties under private instruments arising from post-Act events.

As for the defendants’ argument that the holding that Henry Hand’s will now as including adopted children amounted to an infringement of their rights under Article 1 of Protocol 1. The Court dismissed that argument.

Even if, as to which I make no decision, the Defendants’ rights in the present case fall within the ambit of A1P1, they cannot prevail against the Claimants’ rights under Article 14 in conjunction with Article 8.

It was therefore possible for the Court to read down the offending provision in the Adoption Act pursuant to Section 3(1) of the HRA so that it complies with the claimants’ Convention rights in the following way:

Section 39—

(a) does not apply to an existing instrument or enactment in so far as (i) it contains a disposition of property, and (ii) the beneficiary of the disposition has done something to avail himself or herself of the property right in question before the coming into force of the Human Rights Act 1998.

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