Article of the Month

This month’s complimentary article is from Family Law Journal.

Check back here next month for a new article.

Want more? To subscribe to this journal or our whole Law Journals series, please contact our Subscriptions team

Hannah Viet considers an unusual case involving a claim by an adult child against his parents and the extensive arguments submitted in support of that claim

There is no jurisdiction for a child to bring a claim for financial relief against a party to a subsisting marriage.

In FS v RS [2020], Sir James Munby considered the inherent jurisdiction and examined the meaning of s27, Matrimonial Causes Act 1973 (MCA 1973) and para 2(4) of Sch 1, Children Act 1989 (ChA 1989) to establish whether a 41-year-old man could seek financial relief from his parents who are married and live together.

Although the facts of this case may rarely apply to everyday practice, it is an interesting decision and well worth a read. Sir James Munby referred to the case as 'unprecedented' and the applicant himself described his applications as 'novel'. While the points made were somewhat unique, each was dealt with thoroughly by the judge, including as to the limitations of the relevant legislation, the inherent jurisdiction and the circumstances in which legislation may be 'read down'.

Background

The applicant was a 41-year-old living in London. Despite the applicant having a number of educational and professional qualifications, including a first degree in modern history, a masters degree in taxation, and being qualified as a solicitor, he considered himself to be 'vulnerable', as he had various difficulties and mental health disabilities.

The respondents were the applicant's parents, who are married and reside together in Dubai. The respondents had financially supported the applicant; in particular they were the proprietors of the property in which he lived and, until shortly before the applicant issued his application, they were paying his utility bills.

Sadly the relationship between the applicant and the respondents deteriorated, which resulted in the respondents reducing the financial support that they provided to the applicant. The applicant argued that his parents were incredibly wealthy and that they had:

… nurtured his dependency on them for the last 20 years or so – with the consequence that he is, so it is said, now completely dependent on them…

and that on this basis, the applicant invited the court to conclude that it had 'both the jurisdiction and the duty to protect' him (para 8).

At the case management conference on 28 July 2020, Sir James Munby directed that a hearing be listed for 12 August 2020, at which he would determine jurisdiction in relation to the applicant’s claims.

Remedies sought

The applicant was faced with the immediate issue that he was not a person entitled to make an application under s27(1), MCA 1973 because he was not a party to the marriage and he could not rely on ss27(6A)-(6B), MCA 1973 because there had never been a periodical payments order in his favour. Moreover, he was not entitled to make an application under Sch 1, ChA 1989 because the respondents were living together in the same household.

The applicant tried to circumvent these difficulties and invited the court to construe s27(1), MCA 1973 with the inclusion of the words in bold:

Either party to a marriage or, in the case of subsection (b) below, a child of the family who has attained the age of sixteen, may apply to the court for an order under this section on the ground that the other party to the marriage

  • has failed to provide reasonable maintenance for the applicant, or
  • has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family

Similarly, the applicant also invited the court to insert the following words in bold into para 2(4) of Sch 1, ChA 1989:

No order shall be made under this paragraph at a time when the parents of the applicant are living with each other in the same household as the applicant.

The applicant argued that his interpretation of s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989 could 'be arrived at by a traditional approach to statutory construction', and if that was wrong 'by a process of reading down in accordance with section 3 of the Human Rights Act 1998 [HRA 1989]' (para 24).

Statutory construction

Within his judgment Sir James Munby helpfully set out the legislative history of s27, MCA 1973 and Sch 1, ChA 1989 to illustrate that the applicant's application was flawed and that the court could not read the legislation in the manner sought. In particular, he discussed the Law Commission’s 1969 report (Law Com No 25) Family Law: Financial Provision in Matrimonial Proceedings (see: www.legalease.co.uk/law-com-financial), which recommended that a child over the age of 18 could only intervene in their parents’ matrimonial proceedings with leave of the court. The report commented (at para 42) as follows:

We do not think that it would be desirable to give a child (particularly an adult child) a power to take his parents to court to obtain finance because, for example, he wants to embark on a scheme of training which they are not prepared to support.

As a result of this recommendation, Parliament expressly limited the ability to apply for financial relief under the Matrimonial Proceedings and Property Act 1970 to those who were a party to the marriage. The ability for children to apply for such relief by way of s27(6A)-6(B) came much later, 1978 and 1987 respectively, and even then Parliament has only provided such relief in limited circumstances.

Sir James Munby concluded that s27(1), MCA 1973 'is clear and means what it says' (para 40), and if there was any ambiguity, which he did not consider there was, one could look at the Law Commission’s report which gave very clear guidance. In short, there is no jurisdiction for a child to bring a claim for financial relief against a party to a subsisting marriage.

Regarding the history of Sch 1, ChA 1989, Sir James Munby referred to the Law Commission’s 1982 report (Law Com No 118), Family Law: Illegitimacy (see: www.legalease.co.uk/illegitimacy). What is clear is that the initial intention behind Sch 1 was to provide equality between the children of married parents and those of unmarried parents. The report commented (at para 6.6) that:

if unmarried parents separate it is only right that the court should be able to make any appropriate order in favour of a child of theirs, just as it could make an order if the child’s parents were in the process of divorce or judicial separation.

The Law Commission gave clear guidance that an application could only be brought by an adult child if at the time of their application their parents were not living together. Thus, with regards to para 2(4) of Sch 1, ChA 1989, Sir James Munby rejected the applicant’s proposed additions and concluded that by adding such words, the statutory language was not being construed, but rather the meaning was being changed, and that 'living with each other in the same household' means what it says and 'nothing less and nothing more' (para 45).

Reading down

The applicant submitted that if he was wrong in his argument that a traditional approach to statutory construction would allow for his proposed inclusions to s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989, then his interpretation of those paragraphs could be arrived at by 'reading down' in accordance with s3 of HRA 1998.

The applicant argued that s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989 were inconsistent with his rights under Arts 2, 6 and 8 of the European Convention on Human Rights (ECHR) taken on their own and when read together with Art 14, ECHR. Following the hearing, the applicant emailed Sir James Munby and sought to also argue that child maintenance comes under the scope of Art 1 of Protocol No 1, ECHR.

Interestingly, the applicant did not seek a declaration of incompatibility in accordance with s4, HRA 1998, but instead argued that if s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989 were read down in the way he sought, then a breach of his ECHR rights could be avoided.

Sir James Munby considered what is meant by reading down and referred to the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004], the leading authority on this issue. In Ghaidan, Lord Nicholls said (at para 33):

The meaning imported by application of [s3, HRA 1998] must be compatible with the underlying thrust of the legislation being construed. Words implied must… 'go with the grain of the legislation'.

Also in Ghaidan, Lord Roger said that it is not open to the courts to depart substantially from a 'cardinal principle' of the legislation (para 116).

Sir James Munby therefore concluded that it was 'quite impossible' (para 57) to read down s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989 in the way suggested by the applicant and to do so 'would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation' (para 60).

Incompatibility

Despite the applicant not seeking a declaration of incompatibility under s4, HRA 1998, Sir James Munby considered it right to deal with the applicant's ECHR rights, as he had heard much argument on these points. He discussed Arts 2, 6, 8, 14 and Art 1 of Protocol No 1, ECHR in turn, which are summarised as follows:

Article 2 – right to life

The applicant submitted that the respondents' actions had the effect of 'starving him into submission, not just metaphorically in intent, but also literally in effect'. It was argued that this was 'aggravated' by the fact the applicant is a vulnerable adult, in that he is ill, he is a danger to himself in terms of neglect and it was unlikely he would gain/retain employment. This was not accepted by the respondents, who referenced various case law to support their position that the applicant needed to demonstrate a 'real and immediate risk' or a 'specific and serious' threat to life (para 66). Sir James Munby agreed with the respondents and concluded that Art 2 was not engaged and was not breached.

Article 6 – right to a fair trial

The applicant argued that if the respondents were correct, then he had no remedy or means of seeking a remedy. The respondents relied on the fact that nothing in the ECHR requires contracting states to legislate for specific claims, ie as here, the maintenance of adult children (para 69). Sir James Munby highlighted that the applicant had made an application and that he made no complaint about the process, therefore, on the facts, Art 6 was not engaged and was not breached.

Article 8 – respect for private and family life

The applicant argued that actions such as stopping payment of utility bills had the effect of endangering his occupation of his flat in London, which threatened his private and family life. The respondents referred to the 'disconnect' between the relief sought by the applicant and the facts he relied upon to illustrate a breach of Art 8. There is no power under s27, MCA 1973, nor Sch 1, ChA 1989, to make a transfer of property order and even if the applicant were awarded periodical payments and/or a lump sum, this would not deal with his occupation of his flat. Sir James Munby agreed and concluded that Art 8 was not engaged and was not breached (paras 72-76).

Protocol 1, Art 1 – right to peaceful enjoyment of property

The applicant placed reliance on JM v UK [2010] in support of his position that child maintenance comes within Protocol 1, Art 1. Sir James Munby said the applicant's case was 'fundamentally misconceived' (para 77). While that provision was engaged in JM v UK because the state was, through the Child Support Agency, depriving the applicant in that case of her 'possessions' and Protocol 1, Article 1 protects a person’s possessions, as the applicant was the payee, he was not deprived of his possessions and Protocol 1, Art 1 therefore did not apply (para 78).

Article 14 – protection from discrimination in respect of these rights and freedoms

The focus of the applicant’s argument here was that discrimination arises because the legislation, as drafted, distinguishes between a disabled adult child who is living separately from parents who are living together and an identical disabled adult child who is living separately from parents who are living in separate households. The respondents argued that the discrimination the applicant sought to rely upon was 'misconceived' and Sir James Munby agreed (paras 80-96).

Inherent jurisdiction

 Sir James Munby concluded that the inherent jurisdiction was not available to the applicant for the following reasons (see paras 100-138):

  • The applicant sought the court’s protective function, because without the court’s help, he would be at risk of harm. He argued that if he could not seek relief under s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989, then 'it is only just and fair that the inherent jurisdiction should fill the legislative gap'. Sir James Munby did not accept this and concluded that the applicant’s claim lay beyond the accepted parameters of this branch of the inherent jurisdiction. He highlighted that this branch of the inherent jurisdiction is used to protect individuals who do not lack capacity, but are considered vulnerable, in exercising their autonomy.
  • The inherent jurisdiction cannot be used to force a third party, in this case the respondents, to provide money or services against their will.
  • The inherent jurisdiction cannot be used to reverse the outcome that is achieved as a result of statute, on the basis the court does not agree with the outcome.

Conclusion

In summary, the applicant’s applications were dismissed on the basis that there was no jurisdiction for him to seek financial relief under s27(1), MCA 1973 and para 2(4) of Sch 1, ChA 1989. Moreover, the inherent jurisdiction could not be exercised in the way that he so wished.

The key take-away points are:

  • there is no jurisdiction for a child to bring a claim for financial relief against a party to a subsisting marriage;
  • an application can only be brought under Sch 1, ChA 1989 by an adult child if, at the time of their application, their parents are not living together; and
  • when reading down it is not open to the court to substantially depart from the principle of the legislation.

Following receipt of the draft judgment, the applicant both directly and via leading counsel made further representations and asserted that there were 'clear and obvious errors of law' that needed to be corrected to avoid handing down a 'fundamentally wrong' judgment and the 'enormous trouble and expense associated with a subsequent appeal' (para 146). Sir James Munby considered the further points raised by the applicant, but needless to say, he did not change his judgment and made a costs order in the respondents' favour.

Sir James Munby also reminded those reading his judgment of the words of King LJ in In the Matter of A and L (Children) [2011], when she said (at para 41):

I would merely remind practitioners that receiving a judge's draft judgment is not an 'invitation to treat', nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings.

I think this reminder is particularly relevant given the new world we find ourselves in as practitioners, with remote hearings being the norm. Remote hearings have a host of problems, but one that frequently arises is the drafting of an order following a hearing. It is increasingly common for orders to take several days to finalise and an opponent may use the draft order as an opportunity to seek agreement/a decision from the judge on issues that were not raised at court. This inevitably increases all parties' costs as a result of several emails back and forth and therefore should be avoided.

 

 

Cases Referenced