2023.5748
THEMA
Sparen, Termijnrekening, Andere
ADVIES
Aanwezig:
R. Steennot, voorzitter
De heren A. Guigui, P D’Haen, François, E. Van den Haute, J. Vannerom, leden.
Datum: 19 november 2024
1. COMPLAINT
On 05/05/2004, the father of the client , opened a term deposit in her name (as she was still a minor). Pursuant to the opening document signed at the time and the reserve clause stipulated therein, (i) the capital and interest were to remain on the term deposit until he reached the age of majority and (ii) all withdrawals were subject to the prior consent of her father.
Pursuant the complaint and the elements he provided on 30/09/2024 and 03/10/2024, the facts are as follows:
In 2008, her parents separated, and her mother returned to Thailand.
On 02/12/2013, her parents divorced. Following said divorce, she lived with her mother.
She has not had any contact with her father ever since.
On 11/01/2022, she visited a Bank branch in order to check the status of her account. To her surprise, she discovered that her account had been closed.
Despite her efforts to obtain information regarding the closure, she has not received any from the Bank.
Her mother (and she) claim alimonies/child supports from her father, who sustains that none are due.
Pursuant to her complaint to Ombudsfin dated 09/08/2024, she wishes to be given an explanation from the Bank with respect to the closure of her account and claim that her father should not have been able to transfer funds from her term deposit to her own account.
2. THE FINANCIAL INSTITUTION’S POINT OF VIEW
Brief description
She complains that she has not received the necessary information from the bank regarding her term deposit and requests information on the destination of the deposited funds.
Facts
26/03/2024: the bank received a request from her lawyer for the history of the term deposit’s statements.
21/04/2024: The department sent the requested statements.
22/04/2024: They received a second request from her lawyer asking the bank to send the bank statements after 2014.
06/05/2024: They confirmed to the lawyer that they had sent all the statements at their disposal.
The Bank’s position.
First of all, they sent the missing history which they did not receive at the time of their initial request. This document covers the period from 2014 to 2016.
The balance of the term deposit (i.e. USD 210,595.52) was transferred on 05/12/2016 to the bank account belonging to her father.
Her father was responsible for opening the account on 05/05/2004 and the opening document stipulates that no reimbursement may be made without her consent, in accordance with the reserve clause of the term deposit.
Conclusion
On the basis of the above, they note that the balance on her term deposit was transferred to the account belonging to her father. Following this transfer, the bank settled the term deposit.
3. OPINION OF OUR COLLEGE
She claimed that her father had been able to transfer sums deposited by him in savings and term account opened in her name to her own account. This was the same account as the one on which the deposits were made.
She accused the bank of having exercised no control over these transactions.
Her term account, which was the main subject of the complaints, was opened in 2004 (she was 5 years old at the time). This was opened by her father alone.
The initial sums deposited from the father's personal account were substantial.
The history of her term account, provided by the bank, reveal a large number of transactions. Most of these consisted of the replacement of deposited funds that had reached maturity.
However, on several occasions from 2008 onwards, the bank, at her father's request, transferred various amounts directly to her personal account, to the point of withdrawing the entire balance from the term account. It should be noted that her account was soon credited back with an amount equivalent to the withdrawals, or even additional amounts via her father's account.
In 2016, her term account has been closed by transferring the available balances directly to her father's account.
The bank's opinion
As far as the bank is concerned, all the transactions were carried out by a legal representative of the minor.
Specific comments on the modus operandi
On the basis of the documents provided by the bank, it should be noted that her term account was not linked to a current account in her name to receive maturing capital. There is no clear explanation for the direct link between her term account and her father's account.
The fact remains that the documents used to open the account, and the bank's response to her complaints all confirm that we are dealing with financial account opened in the name of minors.
Family background
Her father, born in 1949, of Belgian nationality, married a Thai woman, born in 1966, on 06/03/1990.
The marriage was recorded before the registrar at the Belgian embassy in Bangkok.
The couple had a daughter on 17/04/1999 and a son on 18/09/2005.
At the time of the events, the husband and wife were living in Thailand. The same applies to the children.
According to the case file, all the protagonists are still living in Thailand.
The couple are due to separate in 2008. A divorce by mutual consent has been recorded by the Thai authorities on 02/12/2013. The ex-wife took then various actions in Thailand to obtain the payment of child supports and alimony.
According to the parties themselves, the bank was not informed either of the parents' separation or of their divorce. This ignorance existed both during the period when the term account was being managed and when it was finally closed in 2016.
The College's opinion on the subject
Preliminary comment
The College is asked to give its opinion on the transactions carried out by the bank, on the orders of the father alone, even though these transactions concern account opened in the name of minor child under Belgian law.
Analysis of the Belgian framework
While it is true that some legal scholars and case law recognize the right of fathers and mothers (unlike guardians) not to seek authorization from the Justice of the Peace to open, manage and make withdrawals and transfers from the current and savings accounts of minors under their parental authority, this freedom is not without limits.
Parents are accountable for the property of their minor children (article 379 of the former Civil Code). They must always act in their children's best interests.
Parental authority is exercised jointly by both parents, unless one of them has been granted administration of the child's property (article 384 of the former Civil Code).
However, this joint management by both parents is tempered by two other provisions of the former Civil Code. With regard to third parties acting in good faith, each of the father and mother is deemed to be acting with the agreement of the other when he or she alone performs an act relating to parental authority (article 373 of the former Civil Code) or an act relating to the administration of the child's property (article 376 of the former Civil Code). Particularly where large amounts are involved (which is the case here), the bank must exercise caution when, at the request of the legal representative, it carries out transactions from an account opened in the name of a minor.
The protection of the latter's interests must be a particular focus of attention. This is particularly the case if one of the parents is the beneficiary of the transaction.
If in doubt, on the basis of the information in its possession, the bank must consider whether to contact the other parent or even ask the legal representative to seek authorization from the Justice of the Peace
Nevertheless, in this case, given the history of transactions (such as repeated withdrawals and deposits), the College considers that there is no causal link between the disregard of the duty of care and the most recent transactions on the account.
The complaint is thus admissible but unfounded.
4. OMBUDSMAN OPINION
Ombudsfin understand from the file and the facts put forth under point 1. hereinabove that he wishes to receive an explanation from the Bank with respect to the closure of her account and claim that her father should not have been able to transfer funds from her term deposit to her own account.
The term deposit was opened by her father without her mother being present.
Without prejudice to the above, Ombudsfin regrets that the Bank did not deem necessary to contact her father when he made each of the following withdrawals:
on 20/10/2008, of USD 130,000.
on 18/11/2008, of USD 139,603.21 (corresponding to the balance of the term deposit).
on 03/06/2015, of USD 250,000.
on 06/09/2016, of USD 210,595.52.
However, even if the Bank had questioned her father, he was still her legal representative at the time and would have confirmed the withdrawals.
Ombudsfin notes that the Bank has informed him of various matters relating to her term account. Although Ombudsfin cannot conclude that the Bank is liable for the withdrawals made by her father (which he was entitled to make as being her legal representative under the former Civil Code). Ombudsfin agrees with the analysis of their college of experts and considers her request unfounded.
In any case, Ombudsfin gathers that the underlying context of her complaint is a family dispute between her mother (and she) and her father. Such a dispute is outside of the scope of competence.