Jersey Unreported Judgments

Settlement - reasons for release of funds to Tutelle.

[2014]JRC198

Royal Court

(Samedi)

17 October 2014

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher and Kerley
Between	V (as Administratrix of the Estate of A)		Applicant

IN THE MATTER OF THE ESTATE OF MR A

AND IN THE MATTER OF THE TUTELLE OF HIS MINOR CHILD, B

Advocate P. G. Nicholls for the Applicant.

judgment

the commissioner:

1.        On 23^rd June, 2014, the Court approved the settlement of the action brought by the applicant as administratrix of the estate of her late partner, Mr A, against the Minister for Health and Social Services arising out of the death ofMr  A.  Part of that settlement was for the benefit of their child B.  In its judgment of 23^rd June, 2014, (V-v-Minister for Health and Social Services [2014] JRC 137), the Court at paragraphs 37-45 considered how these funds should be applied for the benefit of B.  For ease of reading, we set out those paragraphs again:-

"37.    One of the objectives set out in the commentary to Rule 21 [the Civil Procedure Rules 1998] above is to make sure that the money recovered by or on behalf of a child is properly looked after and wisely applied.  This is premised upon Rule 21.11(1) that provides that where in any proceedings monies are recovered by or on behalf of or for the benefit of a child it will be dealt with in accordance with directions given by the Court.  The English judge will assess the future needs of the child and give a direction in this respect to the Court Funds Office who will then invest the funds.  This Court has no equivalent rule, procedure or facility and cannot undertake an ongoing role in looking after and wisely applying the funds.  However, we do feel that the Court's role should extend to being satisfied that proper arrangements have been put in place to look after the funds on behalf of the child.  In this jurisdiction, a Tutelle is the appropriate body to look after the funds and in this case, a Tutelle has been formed following the settlement, with the plaintiff as the Tutrice. 

38.      In discussion with Advocate Nicholls, it transpired that the plaintiff is actually living permanently in Ireland with B and another child who she has had with her husband, whom she married following the death of the deceased.  Her husband, however, would appear to be living in Jersey, although we were told that they were not estranged. 

39.      We were told that the intention is for the funds to be used to buy a house in Ireland for the occupation of the plaintiff and her now two children, which would be an asset of the tutelle, although it is not clear how in law this would be achieved. Thus potentially, both the Tutrice and the assets would be outwith the jurisdiction and therefore beyond the supervision of the Court.  It would be very difficult we feel for the electors, all of whom reside in Jersey, and the Court to hold the Tutrice to account in these circumstances.  Ordinarily, we would expect the Tuteur/Tutrice to be resident within the Island and therefore amenable to the jurisdiction of the Court.  If B is to live permanently with his mother in Ireland in a house to be purchased with his funds then consideration needs to be given as to whether these assets should be under the supervision of the Irish courts. Our understanding is that the High Court in Dublin will accept and manage funds for children resident in the Republic (see page 22 of Senior Master Turner's Handbook).

40.      We were told that the electors were drawn from friends of the plaintiff and include the plaintiff's husband and his mother.  We do not wish to impugn the integrity of either of them as there may be good reason for this, but we did wonder whether B's stepfather and step-grandmother should be involved in his Tutelle.

41.      A further issue for discussion is the conflict that inevitably will arise between the plaintiff's duties as Tutrice and her personal interests and how that will be addressed within the Tutelle.  We note that in England a pragmatic approach is taken towards the apportionment of any award as between the widow and the child with the bulk of any award going to the widow, who will have the task of providing for the child, with a small proportion only being reserved for the child (MacGregor on Damages 28th Edition paragraph 36-079).  In this case, the plaintiff has the task of providing for B, as his mother, but regrettably she is unable to receive any of the award in her own right.  Senior Master Turner's Handbook makes reference on page 6 to the need to resist requests/demands of the surviving parent to "raid" their child's award.  Again, we do not wish to impugn the integrity of the plaintiff, as we have no reason to believe that she would not look after those funds properly as Tutrice, but in protecting B, it is right that we raise the issue. 

42.      Advocate Nicholls was not in a position to assist us in relation to these observations and it was therefore ordered that the settlement funds be paid to his firm to be held to the order of the Court pending further order.  A separate application will then be made as to the application of the funds.

43.      In the ordinary course, we would expect the Court being asked to sanction a settlement on behalf of a child living in the Island to be provided with the following information at least in relation to the application of the funds:-

(i)        The names, addresses, age and experience of the Tuteur/Tutrice and each of the electors and their relationship to the child.

(ii)       Confirmation that the Tuteur and each of the electors have been advised in writing of their duties.

(iii)      Where the Tuteur/Tutrice is in a position of potential conflict, how that conflict is to be addressed within the Tutelle.

(iv)      The proposals of the Tutelle for the investment of the funds.

44.      Where the child is living outside the Island then we can see no objection to the use of a Tutelle if the Tuteur/Tutrice are resident here (and thus the funds controlled from here), but if the funds are to be controlled from abroad, the Court will need to be advised as to how they will be held and the interests of the child safeguarded.

45.      Currently, the Tuteur/Tutrice and the electors must pass annual accounts of the Tutelle, which must be dated and signed by them with a copy provided to each elector.  There is no requirement for the filing of the accounts with the Court.  This compares adversely we feel with the protection given to persons under a curatorship.  We were minded to consider the possibility of ordering the Tutrice to file the accounts of the Tutelle with the Judicial Greffier annually."

2.        On the application of the applicant, the Court has now ordered the release of the funds held by Walkers to the Tutelle created for B and we now set out our reasons. 

3.        The principal concern of the Court was the possibility of the applicant, as Tutrice of the Tutelle, and the assets of the Tutelle being outwith the jurisdiction of the Court.  Mr Nicholls drew our attention to the following passage in the Traite du Droit Coutumier de L'ile de Jersey by Charles Sidney Le Gros at page 176:-

"La personne élue et assermentée à la charge de tuteur doit résider dans l'ile.  Le tuteur qui désire s'absenter de l'île pendant un certain temps a le droit de nommer un Procureur de la tutelle conformément au conseil et avis de ses électeurs."

4.        The purpose of that requirement is to ensure that the Tuteur or Tutrice remains within the Court's jurisdiction and therefore subject to its control, thus enabling the Court to exercise its supervisory function for the benefit and protection of the minor. 

5.        A similar requirement applies to the appointment of a curator, although the Court has recently held that in very exceptional circumstances a non-resident curator can be appointed (see In the matter of the curatorship of L and B [2010] JLR N 42). 

6.        To address this concern, it is now proposed by the applicant that she should stand down as Tutrice in favour of a person resident within the jurisdiction; she will remain on as one of the electors.  That proposal also helpfully addresses the issue of the potential conflict that the applicant would have had between her duties as Tutrice and her personal interests.   That conflict would have arisen immediately upon the purchase of a house in Ireland for occupation by the applicant, her new husband, B and his half sibling.  It is proposed that rental should be paid by the family for that occupation.  As Tutrice, the applicant would have had to negotiate the terms of that occupation with herself.  Those terms can now be discussed and agreed at arms' length between the applicant and the Tutrice designate. 

7.        Whilst we can understand that a reasonable sum should be paid by the family to the Tutelle for that occupation, we wondered whether it was fair for the family to pay the full market rental, as proposed, bearing in mind that B will be living there with them.  In any event that will now be a matter for agreement between the Tutelle and the family. 

8.        It is also proposed that the applicant's new husband and his mother, namely B's stepfather and step-grandmother, will stand down as electors in favour of Jersey resident individuals.  Again, we think that is appropriate because of the potential conflict between their duties to B as electors and their personal interests in their own child and grandchild (B's half sibling).  We were informed that all of the members of the Tutelle, as now proposed, will meet with Walkers and will be advised as to their duties and responsibilities. 

9.        The applicant has taken advice from Irish solicitors who have advised that the property to be purchased in Ireland can be purchased in the name of the Tutelle members as trustees for B with the title passing to him on his attaining 18 years of age.  The balance of the funds will be invested with appropriate professional advice in a balanced investment portfolio held through this jurisdiction. 

10.      In all, the Court was satisfied with the proposals put forward for the investment of the funds received for the benefit of B and with the proposed constitution of the Tutelle.  

11.      The applicant has made inquiries as to whether the funds could be placed under the control of the Irish courts.  It appears from the correspondence with the Registrar of the Irish Office of Wards of Court that this could be done but only pursuant to an order of the Irish court and it will therefore require an application to be made to the Irish court for that purpose.  It is unclear whether in such circumstances a property could then be purchased on B's behalf.  As the cost of establishing a Tutelle in Jersey has already been incurred and the Court is now satisfied that it will shortly be appropriately constituted, we see no reason to require an application to be made to the Irish court incurring yet further costs, all of which would fall to be deducted from the funds held for the benefit of B. 

12.      In its judgment of 23^rd June, 2014, the Court had raised in paragraph 45 the possibility of requiring the Tutelle accounts to be filed with the Judicial Greffier annually, a suggestion which arose in the context of a possible non-resident Tutrice.  We did not feel it appropriate to impose such a requirement on the Tutelle as it will now be constituted, not least because we had no input as to how the impact of such a requirement, which might be followed in future Tutelles, on the resources of the Judicial Greffier.  

13.      Finally, we would reiterate the requirements set out in Le Gros that a Tuteur or Tutrice should ordinarily be resident in the Island.  We note that Le Gros envisages a Tuteur or Tutrice who wishes to leave the Island for what we interpret as temporary periods having the right to appoint a Jersey resident Procureur.  We leave open the question of whether the Court would permit a Tuteur or Tutrice to reside permanently outside the jurisdiction, in respect of which, as with curatorships, there would not appear to be a statutory prohibition.  It is conceivable that there may be exceptional circumstances in which the Court might consent to such a proposal, subject to appropriate safeguards, but it will require an application to the Court.  

Authorities

V-v-Minister for Health and Social Services [2014] JRC 137.

Traite du Droit Coutumier de L'ile de Jersey by Charles Sidney Le Gros.

In the matter of the curatorship of L and B [2010] JLR N 42.