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Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

01 DEC 2006


(Court of Appeal; Thorpe and Moses LJJ; 9 November 2006)

The trustees of a trust fund set up for the benefit of a child on the basis of an order made by a Family Division judge sought leave to vary the terms of the order. Subsequent unforeseen tax consequences had arisen, primarily because of a mistake as to the child's nationality. The trustees argued that the court had jurisdiction to alter the order, thereby creating a different trust, by reference to s 3 of the Children Act 1989 (the 1989 Act) read with s 8.

Under the 1989 Act the court had jurisdiction to ensure that parental responsibility was properly exercised by the guardian of a child's property. Although initially concerned that the court was being asked to assist with tax planning, the court accepted that there had been an unforeseeable mistake which it was appropriate to correct. However, the case had not needed to be dealt with by means of an appeal to the Court of Appeal; the case could have been dealt with by the Chancery Division exercising the inherent jurisdiction.

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