Money, money, money, must be funny, in an [anonymised beneficiary’s] world: protecting child beneficiaries in variation of trust cases

A typical plot development in old novels is the sudden discovery of unexpected wealth, usually in the form of an inheritance, or the discovery of a long lost will or hidden relationship to a wealthy benefactor.  

That is sometimes what it is like for children who are beneficiaries of big trust funds. They may, for their own good, not be told about it until they are old enough to appreciate and make wise use of their sudden accession of wealth. Too soon, and they might be tempted to squander it, or not learn to be a useful member of society, or the knowledge of it might attract the greedy attention of the wrong sort of friends. 

Though expressed in more legalistic language, those were some of the concerns raised in MN v OP [2019] EWCA Civ 679 where the Court of Appeal had to consider whether it would be right to grant an anonymity order to protect the child beneficiaries in a case where the court was asked to approve a variation of trust. The question was whether such a case should be subject to the same automatic presumption of anonymity as where the court was asked to approve a settlement of compensation for personal injury involving a child.

Open justice v parental protectiveness

The court considered the matter against the baseline principle of open justice laid down by the House of Lords (then the highest court in the land) in the case of Scott v Scott [1913] AC 417. The activity of the public courts in resolving legal disputes must be subject to public scrutiny. The identities of the parties are an integral part of the proceedings and any restriction on their publication involves a derogation from the principle of open justice and freedom of expression.  

However, the Law Lords in Scott v Scott recognised that certain cases, including wardship cases involving children, were of a different nature from the usual disputes decided by the courts, in that the court was exercising a more parental or protective function. It is the recognition of that exception, and of the need to protect the interests of children more generally in family law cases, that justifies the presumption or default position in the family courts that such cases will be heard in private and judgments published anonymously. 

Compensation settlements 

Cases involving the approval of a compensation settlement for children affected by medical negligence or personal injury were the subject of JX MX (A Child) v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96; [2015] 1 WLR 3647. That case involved a six-year-old child severely injured at birth, who had limited life expectancy and mental capacity. Her mother brought a claim on her behalf against the NHS trust, who agreed to settle the claim for a substantial sum (running into millions) plus periodical payments.  

Because the child could not consent, the court was asked to approve the settlement. The Court of Appeal held gave guidance saying courts should normally make an anonymity order in such cases, unless there are particular reasons not to. 

A factor in the court’s reckoning was that the court’s function in an approval hearing was essentially of a protective nature, concerned less with the administration of justice than with ensuring that the claimant’s compensation was adequate. That was comparable to the protective function exercised in relation to wards of court. Another factor was that  

“In many, if not all, cases of this kind, the court will need to consider evidence of a highly personal nature relating to the claimant’s injuries, current medical condition, future care needs and matters of a similar nature.” 

There was also a need for consistency of approach in such cases. So, as with family cases involving children, anonymity should be the default position. The question in the present case was whether the same approach should apply to a variation of trust case.

Variation of trust cases

The present case was brought under the Variation of Trusts Act 1958, which was designed to allow the court to approve a decision to vary the terms of a trust, where the interested parties are not all able to consent by themselves. The court does not vary the trust itself, it merely provides the necessary consent.

Such cases are subject to the general rule in civil proceedings that the hearing should be in open court. As Mr Justice Vaisey said in Re Chapman’s Settlement Trusts [1959] 1 WLR 372, 275:

“I again wish to stress the importance of these cases being heard in open court. It is necessary for uniformity of practice, and the variation of trusts is a serious matter which ought not to be dealt with behind closed doors. […] If there is any real reason, such as the avoidance of unnecessary or undesirable publicity, an application can always be made for the case to be heard in chambers. “

In a case reported as V v T and A [2014] EWHC 3432 (Ch); [2015] WTLR 173 Mr Justice Morgan refused to hold the hearing in private, but agreed to the anonymization of the parties, on the basis (at para 11) that it would be:

“appropriate to impose some restrictions to safeguard the children from the adverse consequences of them becoming aware at too early an age of the extent of their likely wealth and to protect them from friendships and relationships with others who were inappropriately influenced by knowing about the likely wealth of the children. ”

In coming to that conclusion, he cited an earlier family law case, K v L [2011] EWCA Civ 550; [2012] 1 WLR 306 in which the Court of Appeal departed from the normal rule that appeals in divorce cases should be heard in open court, and published the judgment anonymously, noting at para 26 that:

“The fact is that the children live with a mother who is abnormally wealthy but who over many years has, together with the father, assiduously sought to create for them a normal life in which they and the family’s friends are unaware even of the broad scale of her wealth and over which she has been astute to cast no trappings indicative of it. ”

Mr Justice Morgan in V v T also gave guidance on the court’s approach to anonymisation of trust variation approval cases involving children, which he said should not be automatic, but should be considered afresh in each case.

This case: MN v OP

The trust fund in the present case is very valuable. The court was told that:

“The family and trustees have a common approach to the upbringing of the grandchildren, ensuring they should be brought up to appreciate the importance of education and hard work; to establish themselves in worthwhile careers; to make a positive contribution to society and to choose friends who respect them for their personal qualities rather than for the accident of their birth. Accordingly, the grandchildren are introduced to the implications of the family trusts at times and in a manner that is appropriate having regard to their personal development.”

Moreover

“There is real concern that publicity linking the grandchildren to the Settlement (as a result of these proceedings) might be inaccurate, and would lead to the grandchildren’s knowledge of their position before this would be appropriate, having regard to their personal development; further, attendant publicity might also undermine their families’ approach to their upbringing; it might distract and upset them; it might affect other people’s attitude to them in a way that would have an adverse impact on their lives and would increase the risk that they would be the targets of crime.”

(See para 37)

Nevertheless, the judge did not accept the case for anonymity and felt that it would be inconsistent with the guidance in V v T to derogate from open justice in this case.

The Court of Appeal agreed that the existing, case-by-case approach recommended in V v T should be adopted, and that trust variation approval cases were different from settlement approval cases such as JX MX (A Child) v Dartford and Gravesham NHS Trust (above). Although the court’s jurisdiction under the Variation of Trusts Act 1958 was a protective one, these were ordinary civil proceedings, not wardship proceedings. The presumption of anonymity was appropriate in settlement approval cases involving evidence of a highly sensitive and personal nature about particularly vulnerable claimants. Information about the individual shares of minor beneficiaries and their connection to a trust fund was of a different (ie lower) order of sensitivity.

So although there would be no presumption of anonymity, there were factors in this case which would justify some restriction on identifying the child beneficiaries. To achieve the minimum necessary restriction on publicity, the court decided to make an order under section 39 of the Children and Young Persons Act 1933, prohibiting identification by name of the minor beneficiaries, but not of any of the other parties or the trust itself.

Conclusion

There are various types of case in which anonymity may be ordered to protect the interests of children. In most family court cases, there is a presumption of privacy and anonymity. But in most civil proceedings the presumption is the other way – each case must be considered on its merits, balancing the interests of the child to privacy against those of freedom of expression and the public’s right to know.

What the case of MN v OP appears to clarify is that there is a difference between those civil cases where the approval of the court concerns a matter (such as the settlement of a medical injury claim) involving sensitive personal or medical information, in which case the default is towards privacy and anonymity; and where it merely involves details which it would be wise to keep quiet about, such as the impending wealth of a child, which it might be unwise to publicise, but where the default is towards openness unless it can be shown that privacy or anonymity is genuinely necessary.

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Featured image: Photo by Jennifer Murray from Pexels