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Taking legal action against an individual over unrepaid 'loans'


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Not sure if I'm in exactly the right place for this, but I'm looking for advice on making a claim (MCOL) against an individual.

 

I have recently discovered that my ex partner has coerced/bullied our 11 year old son into transferring the entire balance of his savings account to them (about £3k), allegedly on the basis of a loan. The funds were transferred in relatively small amounts (£30 - £80, almost daily, sometimes multiple transfers per day) predominantly over the course of a couple of months last year.

 

I setup the savings account for our son (well after we had separated), and all deposits to the account had come from me. My ex didn't even know about the account. When our son turned 11 the bank automatically gave him a current account as well. I set him up for online banking/app, which also gave him online access to the savings account. I did tell him not to touch the savings account, which he hasn't for his own use at all. Every single withdrawal was immediately transferred to his mother (and her new partner), via his current account. I have no idea where the money went, but in one month alone they took over £1600!

 

Given our son's age, I'm not happy that the bank haven't queried or flagged these transactions in any way, but I expect they'll brush it off if I complain to them. Account is with HSBC, and they are in our son's name, they don't offer children's accounts held in trust. I had asked for the accounts to be linked to my online banking, so that I could monitor them, but HBSC said they don't do that either.

 

The account was completely emptied 9 months ago, and I've only just found out about it (ex had bullied son into keeping it a secret). He's under the impression that it's a loan, but nothing has been repaid (except a few tiny amounts, which ex has then made son transfer back a day or so later), both savings and current account have balance of £0.00.

 

I've confronted ex about it, who was less than apologetic, made it sound like she was entitled to appropriate our sons savings, but did concede it was on a loan basis. Obviously no repayment plan is in place, and the lack of repayments so far make it look like a perpetual loan. Ex is hopeless with money, constantly pleading poverty, refuses to get a job and therefore pays no child maintenance either.

 

In addition to my son's savings, I've also lent my ex money myself as she regularly claims she can't afford to feed our son when he goes to her for occasional contact time. That's added up to another £1k over the last 3 years. Despite it being agreed as a loan, I was willing to write that off as a lost cause, but in light of her also appropriating all my son's savings I'm going to take legal action. Unfortunately, I doubt either of us will ever see the money again, but at the very least I want to try, if nothing else to get the debt (and hopefully a repayment plan) formalised.

 

Can I claim on behalf of myself and my son, is it ok to name our son as a joint claimant even though he's a child?
Presume I start by serving a letter before action, outlining the amounts and giving 14 days to repay?
As there's no way they'll be able to repay in 14 days, I'm also inclined to offer to discuss a repayment plan before commencing the MCOL. Or is this a bad idea?

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Topic moved to General Legal Issues Forum.

 

The following CPR may be of interest to you.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part21

 

 

Andy

 

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With regard to your son it is financial abuse of a vulnerable minor. Contact your local Council Social Services who can have it investigated.

 

H

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44 years at the pointy end of the motor trade. :eek:

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Posted (edited)

Ironically we already have social services early intervention assisting us! This is because my ex has convinced our son that he ought to go and live with her (despite social services taking our kids off her a couple of years due to her neglecting them, that's why they live with me now).

 

I've mentioned the money thing to the early intervention lady and she was pretty shocked by it as well. Not sure there's anything they can do about it though.

Edited by dx100uk
unnecessary previous post quote removed
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1 hour ago, Andyorch said:

Topic moved to General Legal Issues Forum.

 

The following CPR may be of interest to you.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part21

 

 

Andy

 

Thanks Andy.

 

Struggling to get my head around that though. Is it saying that a child under 18 has to have a 'litigation friend'? Obviously I would want to take on that role. And I would prefer to shield my son from the legal proceedings as far as possible possible, especially as he doesn't really appreciate that he's been taken advantage of by his own mother. 

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12 minutes ago, Ethel Street said:

Was there anything in the divorce settlement about money belonging to your son?

We weren't married. And none of us had any savings while we were together because ex managed to spend if faster than I earnt it. 

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So do we gather that your 11-year-old son lives with you .

You are the legal guardian or custodian. Your son lives with you as a result of some court order and your ex doesn't have any legal control over him .

 

This is certainly not an area that I am familiar with, but if your ex still has some kind of legal status in respect of your son then it could complicate matters .

I'm a bit surprised at what you are telling us about the bank account because it sounds to me as if your son has an adult bank account even though he is 11 years old and I would certainly consider making a complaint to the ombudsman .

 

If you did bring a legal action then it would have to be in your son's name but being bought by you in his name.

You could only do this if you had legal custody or control over your son and your ex did not.

You suggest that you might be prepared to enter into some repayment plan instead of going into litigation .

I don't think this is a good idea. I think that you need a judgement in your favour.

 

And after that if you want you can talk about having some structured scheme of repayment but with the threat of legal action hanging over your ex's head.

 

However, having a judgement against your ex is not necessarily useful if she does not have any assets.

You must always consider how you are going to enforce a judgement against someone.

 

Simply being able to wave a piece of paper saying that they are in debt to you is not going to be helpful if you aren't going to be able to force repayment

 

Finally, what is the effect of all of this on your son. It seems to me that his interests should be paramount .

Although it might eventually mean a loss of money, you should probably consider whether it might be in his best interest to avoid conflict, but simply to make him aware that in future he should not give his money away in any circumstances, even to his mother .

If he's prepared to understand that, then it might be a better way to go rather than to put him through the business of having to take a legal action, to give evidence against his mother and eventually maybe even to begin an enforcement process against his mother.

 

Is the loss of this money a serious loss to you or has it become a matter of principle ?

If it has become a matter of principle to you, maybe it is not a matter of principle to your son and maybe it would be simply better to learn the lesson and then to get everybody to move on.

 

 

 

 

 

 

 

 

 

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If you want to keep on putting money aside for your son do some investigation about the best way to do it so that he can't get access to it until he is 18.

 

I can't advise the best way to do it but there are lots of reputable independent websites out there that do deal with this issue. 

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1 hour ago, BankFodder said:

So do we gather that your 11-year-old son lives with you .

You are the legal guardian or custodian. Your son lives with you as a result of some court order and your ex doesn't have any legal control over him .

 

This is certainly not an area that I am familiar with, but if your ex still has some kind of legal status in respect of your son then it could complicate matters .

I'm a bit surprised at what you are telling us about the bank account because it sounds to me as if your son has an adult bank account even though he is 11 years old and I would certainly consider making a complaint to the ombudsman .

 

If you did bring a legal action then it would have to be in your son's name but being bought by you in his name.

You could only do this if you had legal custody or control over your son and your ex did not.

You suggest that you might be prepared to enter into some repayment plan instead of going into litigation .

I don't think this is a good idea. I think that you need a judgement in your favour.

 

And after that if you want you can talk about having some structured scheme of repayment but with the threat of legal action hanging over your ex's head.

 

However, having a judgement against your ex is not necessarily useful if she does not have any assets.

You must always consider how you are going to enforce a judgement against someone.

 

Simply being able to wave a piece of paper saying that they are in debt to you is not going to be helpful if you aren't going to be able to force repayment

 

Finally, what is the effect of all of this on your son. It seems to me that his interests should be paramount .

Although it might eventually mean a loss of money, you should probably consider whether it might be in his best interest to avoid conflict, but simply to make him aware that in future he should not give his money away in any circumstances, even to his mother .

If he's prepared to understand that, then it might be a better way to go rather than to put him through the business of having to take a legal action, to give evidence against his mother and eventually maybe even to begin an enforcement process against his mother.

 

Is the loss of this money a serious loss to you or has it become a matter of principle ?

If it has become a matter of principle to you, maybe it is not a matter of principle to your son and maybe it would be simply better to learn the lesson and then to get everybody to move on.

 

 

 

 

 

 

 

 

 

It's not an adult account, it's HSBC's "mysavings" children's account. I believe the account is held in the child's name with an 'authorised adult mandate' that should also allow me to operate the account on their behalf. I did ask the bank for parental access to at least monitor the account, but was told that isn't possible (despite the AAM).  https://www.hsbc.co.uk/savings/products/mysavings/

 

My son lives with me, but his mum does still have parental responsibility. So it sounds like that could prevent any kind of legal action? His mum's 'new' partner has also been a direct recipient of some of these money transfers, and definitely does not have PR for my son. Was hoping to name them as respondents jointly though. I was also hoping to shield the lad from as much of the legal process as possible. If there is no prospect of that, and he'd be called into court as a witness, then it would probably stop me from taking the legal route. 

 

The wider picture is that my son apparently understands that this money was a loan to his mother, but has obviously been taken advantage of as it is clear there is no intention to repay it. She has manipulated and conditioned him to think that he is somehow responsible for his mother's welfare (she has mental health conditions, is alcoholic, and now I'm thinking possibly other drug addictions (not sure what else this money might have been spent on). I am looking at trying to get counselling for him because it clearly isn't healthy for an 11 year old to feel responsible for his parent in this way. I guess it's similar to any other victim of coercive control (except between parent and child rather than a couple in a relationship) - that the victim doesn't realise that they are a victim until after they break free of their abuser. Until I can break that toxic bond between mother and son, he isn't going to learn any lesson from this. Part of my thinking behind gaining a judgement is that it establishes officially that what his mother has done is wrong.

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24 minutes ago, billy_79 said:

It's not an adult account, it's HSBC's "mysavings" children's account. I believe the account is held in the child's name with an 'authorised adult mandate' that should also allow me to operate the account on their behalf. I did ask the bank for parental access to at least monitor the account, but was told that isn't possible (despite the AAM).  https://www.hsbc.co.uk/savings/products/mysavings/

 

Yes, I understood that. I think you should go somewhere other than HSBC and open a different type of account that will let you control it until your son is 18. Otherwise the same thing may happen again.

 

Or open a separate savings account in your name and gift it all to him when he reaches 18!

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I've said it before, so you will be pleased this is the last time but this is classic, text book, financial abuse. I doubt the courts will even be interested as, on the face of the facts above, there has been no crime. The money was handed over willingly. It needs looking at, and a solution offered from a very different perspective.

 

H

44 years at the pointy end of the motor trade. :eek:

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1 hour ago, Hammy1962 said:

I've said it before, so you will be pleased this is the last time but this is classic, text book, financial abuse. I doubt the courts will even be interested as, on the face of the facts above, there has been no crime. The money was handed over willingly. It needs looking at, and a solution offered from a very different perspective.

 

H

I agree with it being financial abuse, and I've touched on that in my replies. Whether it's a crime or not is another matter, but if it were, the police are people who deal with crimes. County Court/MCOL is for resolving civil matters is it not? There is no doubt that all parties agree the money was loaned, if the borrower isn't repaying then surely small claims court is an appropriate legal route to try and recover the loaned money? However, I don't believe that the borrowers ever had any intention of repaying, which could be argued as theft (admittedly difficult to prove to a criminal standard).

 

Having now gone through the statements thoroughly, it's become clear that about half of the money transfers were made to his step dad. And whilst his mum has repaid a fair bit of what went to her, step dad hasn't repaid anything himself. He owes over 2k. And now they've split up (but not yet divorced).  Not sure if that's of significance or not?

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