This is a guest post by Jessica Smith, a newly qualified solicitor hoping to specialise in family law.
Described as “a most unusual case”, the Family Court at the Royal Courts of Justice recently dismissed a forty-one-year-old son’s claim that the “bank of mum and dad” was legally obligated to maintain him. Most court orders for the payment of maintenance of children provide for that obligation to end at the age of 18 or upon the child leaving school. The courts retain jurisdiction to make or vary orders for maintenance of children in limited circumstances, including where there is already a court order in force, to meet expenses in connection with education or training for a trade, profession or vocation, and where the child has expenses attributable to a disability. In FS v RS and JS [2020] EWFC 63, Sir James Munby considered whether the court had jurisdiction in relation to claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and whether jurisdiction under the inherent jurisdiction could be exercised as the Applicant asserted. This is an overview of Munby J’s remarkable judgment in light of an unprecedented proposition upon the court’s traditionally paternal or parental character.
The facts
The Applicant, the forty-one-year-old son of the Respondents, sought financial relief against them. He did so on three alternative bases :
- Section 27 of the Matrimonial Causes Act 1973 (which deals with cases of neglect by a party to a marriage to maintain a child of the family),
- Schedule 1 to the Children Act 1989 (which deals with financial provision for children), and
- Under the court’s inherent jurisdiction to deal with cases involving adult Applicants who, though not lacking capacity, are “vulnerable”.
The Applicant was an educated man with various mental health disabilities. The Applicant argued that his mental health disabilities constituted “special circumstances” under section 27(6B)(b) of the 1973 Act and paragraph 2(1)(b) of Schedule 1 to the 1989 Act, and that he was “vulnerable” for the purposes of the court’s inherent jurisdiction.
The Applicant had been unemployed since 2011. His parents had supported him financially over the years and permitted him to live in a flat in central London, which they owned. Then, the relationship between the Applicant and his parents deteriorated and the financial support that they were prepared to offer significantly reduced.
The Respondents were married and lived abroad. They were very wealthy and had more than enough to comfortably meet their financial claims at their highest. It was argued on behalf of the son that, the court had a duty to protect him, rather than abandon him to the parents’ “capricious decisions”. It was said that the parents had nurtured his dependency for many years and should not now be permitted to let him fall back on the state.
In addition to the three claims, the Applicant also signalled an intention to bring proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) in relation to the flat, his claim being that it was held by his parents on trust for him as the absolute beneficial owner.
The proceedings
Two preliminary Case Management Conferences took place before Munby J via Zoom, one on 28 July 2020 and one on 12 August 2020.
Mr Amos, acting for the Applicant, emphasised the rights under the European Convention on Human Rights, specifically: Article 2 (the right to life), Article 6 (the right to a fair trial), Article 8 (the right to respect for privacy) taken on their own and read together with Article 14 (the right to not be discriminated against).
At both hearings, the Applicant sought an immediate order for interim maintenance, which Munby J refused in order to avoid becoming involved in a debate as to whether or not such an order could or should be made when the Applicant was a child rather than a spouse (a debate which might have delayed matters).
Munby J subsequently received two written submissions on behalf of the Applicant. The first re-centred the Applicant’s case on Article 14; the second introduced a new case based on Article 1 of Protocol 1 (which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions).
The statutory claims
Each of the statutory claims faced significant hurdles.
First, the Matrimonial Causes Act 1973 is only available where a Respondent has failed to provide, or make a proper contribution towards, reasonable maintenance for the Applicant as a child of the family and where there has previously been a periodical payments order in the child’s favour. Neither applied here.
Second, in relation to Schedule 1 to the 1989 Act, the Applicant was barred by paragraph 2(4) because his parents were living with each other in the same household.
Mr Amos sought to overcome these difficulties by inviting Munby J to interpret the words in the statute as if they had additional amendments based on an interpretation of Parliament’s intention. Alternatively, he invited Munby J to use the court’s duty to ‘read down’ under the Human Rights Act 1998 (i.e. to interpret the statute in a manner that was compliant with the Applicant’s human rights).
He argued that his preferred outcomes could be arrived at by a traditional approach to statutory construction and by “reading down” in accordance with section 3 of the Human Rights Act 1998 (explained below). However, before considering whether a traditional approach to statutory construction and reading down could be utilised to reach the Applicant’s preferred outcomes, Munby J set out some legislative history.
The legislative history
In his judgment, Munby J examined the history of section 27 of the 1973 Act and of Schedule 1 to the 1989 Act with reference to old case law and reports produced by the Law Commission. He concluded that the statute could not be construed in the way that the Applicant sought.
Construction
Construction, or statutory interpretation, is the process by which courts interpret and apply legislation.
Finding that there was no legitimate process of construction by which section 27 could be read in favour of the Applicant, Munby J said: “The statutory language is clear and means what it says.”
In relation to paragraph 2(4), Munby J’s judgment was equally clear. The statutory phrase “living with each other in the same household” means what it says.
Accordingly, the manner in which Mr Amos sought to overcome the difficulties in how the statute is worded would not have required Munby J to construe the statutory language, but actually to add words so as to change the meaning. As a result, the court had no power to conclude as the Applicant sought.
Reading down
Referred to as “reading down”, when considering statute, judges may read in words they consider to be necessarily implied by words already in the statute. Any reading down must be in accordance with section 3 of the Human Rights Act 1998, which provides that legislation must be read in a way that is compatible with the European Convention on Human Rights.
In Munby J’s judgment, he could not read down because this would have meant adopting a meaning inconsistent with a fundamental feature of legislation. The statutes in this case had a very precise Parliamentary objective. In the case of section 27, the aim was to ensure that a child (particularly an adult child) should not be able to take his parents to court to obtain finance, and that accordingly applications could only be made by a party to the marriage. In the case of paragraph 2(4), the aim was to ensure that the legislation was to remove discrimination against illegitimate children – any more fundamental change was explicitly disavowed, and the policy explicitly adopted in consequence restricted provision to adults whose parents had separated or (as the legislation expressed the concept) were not “living with each other.”
In the circumstances, Munby J expressed that it would be fundamentally wrong to read the proposed language into either statute.
Incompatibility
Due to the way that Munby J construed section 27 and paragraph 2(4), it was not necessary for him to deal with the argument that they were inconsistent with the Applicant’s rights under Article 2, Article 6, Article 8 and Article 14, and also Article 1 of Protocol 1 of the European Convention on Human Rights. The Applicant’s only remaining remedy was, therefore, a declaration of incompatibility under section 4 of the Human Rights Act 1998. Although the Applicant did not seek such a declaration, Munby J addressed it in his judgement anyway.
(A declaration of incompatibility is a declaration issued by a judge within the United Kingdom that a statute is incompatible with the European Convention of Human Rights. This is a central part of UK constitutional law, although few declarations of incompatibility have been issued.)
Article 2 – the right to life: Mr Amos argued that by reducing the financial support that they provided to their adult son, the Respondents had threatened and infringed the Applicant’s right to life, for their strategy was “in both its intent and its effect, pretty obviously/deliberately one of ‘starving’ him into submission”. In his view, this was aggravated by the Applicant being vulnerable and “(a) very ill; (b) a danger to himself in terms of inter alia neglect; and (c) wholly unlikely to be able to get, far less maintain, any employment position at all […].”
The Respondents lawyers expressed disappointment that such a grave and serious allegation had been deployed so lightly. Anyway, Munby J made the irrefutable point that, for Article 2 to be engaged, there must be a “real and immediate risk” or a “specific and serious” threat to life. In this case, there clearly was no such risk or threat to the Applicant’s life and inevitably the judge did not accept that UK law was incompatible with Article 2.
Article 6 – the right to a fair trial: Mr Amos argued that, if the Respondents were not legally obligated to provide financial support to their adult son, then the Applicant not only had no remedy but also no means of seeking a remedy and the fundamental right of access to justice.
However, as the judge explained, nothing within the Convention requires contracting states to legislate for specific categories of claim. In other words, the legislation in this country is not required to provide for every possible kind of claim by every conceivable category of applicant (for example, the maintenance claim of an adult child). What this country is required to do, however, is to provide every person in England and Wales with the opportunity to have a fair trial, in accordance with the Convention. The Applicant in this case made an application to court. He appeared before the court and was represented by leading counsel and expert matrimonial solicitors. He made no complaint about the fairness of the proceedings. He took no issue with the time it took for his application to be heard. He took no issue with the impartiality and independence of the tribunal. It was, therefore, impossible for the facts relied upon to engage Article 6, let alone to breach it.
Article 8 – the right to respect for privacy: Mr Amos submitted that the Applicant had lived in the flat for some 20 years and that “it … has been and remains his metaphorical umbilical cord to his family … The flat represents the security and continuity of relationship even when the human relations are strained and/or the family members estranged. But in addition, the flat also represents the only bulwark between [the Applicant] and very real possible destitution. And as such it is also the key to his privacy and indeed his only aspect of privacy.” He also submitted that Article 8 was engaged on the basis that the 1973 Act and the 1989 Act both provide positive financial relief measures to assist one’s children and family.
Needless to say, the parents’ lawyers did not accept hese arguments, saying that the points made were completely irrelevant and they pointed out that not a single authority had been produced in support of the proposition that such facts constituted an engagement of Article 8, let alone a breach. They also pointed out that the Applicant’s claim for periodical payments and/or a lump sum did not deal with his occupation of the property, because there is no power under either section 27 or Schedule 1 to make a transfer of property order. Munby J agreed.
Protocol 1, Article 1 – entitlement to peaceful enjoyment of possessions: Mr Amos sought to rely on JM v United Kingdom (Application no. 37060/06) (2008), [2008] ECHR 1544, in which the Applicant was the payer of maintenance and it was held that Article 1 of Protocol 1 was engaged because the state was depriving her of her ‘possessions’.
In this case, however, the actions that the Applicant sought to bring did not deprive the Applicant of his ‘possessions’. He had no Article 1 of Protocol 1 right to child maintenance. He was the payee, not the payer. He could not rely upon Article 1 of Protocol 1 in support of his application. According to Munby J, his case was “with respect, fundamentally, misconceived”.
Article 14 – the right not to be discriminated against: For all the reasons above, Article 2, Article 6, Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights were not engaged and the Applicant’s claims did not fall within the ambit of any of them. Munby J dealt with Article 14, albeit briefly, nonetheless.
The discrimination that the Applicant sought to rely upon was the difference in treatment between a person who is the child of parents who are still living together and a person who is the child of parents who are living separately from one another. The factor of the parents’ own living arrangements was, Mr Amos submitted, entirely irrelevant from the perspective of an adult disabled child and his needs. According to Mr Amos, the (disabled) adult child of together-parents who are living together with each other, but in a separate household from their child, is just as deserving of financial relief from his/her parents as the identical (disabled) adult child of separated parents who are living in households separate from each other, whether or not also separate from the adult child. To argue otherwise was, he said, unjustifiable discrimination.
Munby J judged this view as having been misconceived, for the following three reasons:
Firstly, any analogy in this case regarding “birth status” was wholly false. The marital status of the parents at the date of birth directly determines the status of their child as legitimate or illegitimate. That status of the child, although derived from the status of the parents, is a status of the child recognised as such in law. It may be that when the parents have died the child also attains the status of an orphan. However, the status of the parents as either divorced and/or separated (which is what the court was concerned with here) has, in general terms, no effect in law on the status of their child.
Secondly, in this case, the question in relation to Article 14 concerned the status of the child, not the status of the parents. The issue was, therefore, whether the Applicant could bring himself within the relevant words of Article 14: “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The asserted status was being the child of parents who were either divorced (or not) and/or separated (or not). That was not a status included within the list, nor, said Munby J, was it an “other status” within the meaning of Article 14. It was (as above) a matter of status as between the parents, which has no impact in law on the status of the child.
Thirdly, as the Respondents’ lawyers pointed out, the wording, which the Applicant would have had Munby J read into paragraph 2(4), would not have remedied the alleged discrimination. What it would have addressed is the Applicant’s specific situation as an adult child who lived separately from cohabiting parents. Reading paragraph 2(4) in this way would, Munby J explained, leave a lacuna (gap) because the adult child of cohabiting parents who remained in the same household as the parents would, on the Applicant’s analysis, be unable to seek the remedy he sought. There was, therefore, a fundamental disconnect between the way in which Mr Amos invited Munby J to read paragraph 2(4) and the discrimination upon which he sought to rely, that is, the inability of an adult child whether or not he is living with them to bring a claim against cohabiting parents.
For these reasons, the Applicant failed to make good his case based on the Convention.
The inherent jurisdiction
The law in England and Wales is comprised of statutes and statutory instruments (laws and rules passed by Parliament) and precedent (decisions taken by higher courts that bind future courts dealing with the same issue). On occasions where the law does not address a matter, the concept of inherent jurisdiction provides the High Court or above with jurisdiction to deal with almost any matter that comes before it. Lord Donaldson of Lymington MR famously described inherent jurisdiction in re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 13 as the “great safety net which lies behind all statute law, and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole.”
In this case, the court was concerned as to the ambit and extent of the jurisdiction, and specifically, as to the type of relief that could be granted (if at all). Munby J referred to the case of Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, in which it was confirmed that relief can only be granted in “novel” cases. However, whilst financial disputes between parents and their financially dependent adult children have been with us forever, and whilst there is no trace of them ever having been litigated, novelty alone does not demand a remedy.
Mr Amos submitted that the court was faced with a situation in which a vulnerable person had acquired a very significant level of dependency over a long period, that dependency having been established by the actions of his parents. If the Respondents were free to withdraw their support, the Applicant would have to face the prospect of not only degradation but also squalor and abuse. If he was not able to claim under either section 27 or Schedule 1, then, said Mr Amos, it was only just and fair that the inherent jurisdiction should fill the legislative gap.
His “central proposition” was that the inherent jurisdiction is unlimited. The Applicant was a vulnerable adult who, without the court’s protective help, was apparently going to be immediately at risk of harm. In these circumstances, Mr Amos said, the Applicant threw himself on the court’s protective function, not least given that the court traditionally exercises a paternal or parental jurisdiction – doing what it concludes that a good parent should and would do.
In Munby J’s judgment, the inherent jurisdiction was not available to assist the Applicant. He raised three arguments, which he said, separately and cumulatively, drove him “without reluctance” to his conclusion.
Firstly, the claim was far outside the accepted parameters of the branch of inherent jurisdiction relied on by the Applicant. Munby J said it was important to understand that: “(1) precisely because they do not lack capacity, those subject to this branch of the inherent jurisdiction are fully autonomous adults; and (2) that, fundamentally, the jurisdiction exists to protect and to facilitate their exercise of that autonomy.” Then, referring to his own judgment in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, he explained: “The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.” Ultimately, there was nothing in any references to case law which supported the proposition that the court’s inherent jurisdiction could be used as Mr Amos would have had him accept.
Secondly, Munby J pointed out the fundamental principle that the court’s inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services.
Thirdly, the inherent jurisdiction was not available to assist the Applicant because it cannot be used to override Parliament’s wishes expressed through statute.
Any claim under the inherent jurisdiction was therefore doomed.
Conclusion
The judge was, for all the reasons above, satisfied that the Applicant had no case in relation to all three of his claims. The court had no jurisdiction to give him the relief he sought under the 1973 Act or the 1989 Act, and could not use the inherent jurisdiction. The applications were summarily dismissed, as were the applications for interim maintenance and legal costs funding orders in relation to those claims.
On 8 September 2020, Munby J sent his draft judgment by email to the parties in the case, requesting submissions on costs and a draft order. This is standard practice and nothing out of the ordinary. However, a week later he received an email from Mr Amos, which said: “My client expressly and specifically instructs me to send to you his Invitation to reconsider and change your judgment prior to hand-down […].” The judgment tells us that attached to it was a note prepared by the Applicant himself, running to some 15 closely spaced pages and referring to a number of new authorities. The note asserted: “there are clear and obvious errors of law that need to be immediately corrected in order to avoid handing down a judgment that is “fundamentally wrong” and the enormous trouble and expense associated with a subsequent appeal.” The Applicant was seeking to reopen the case, particularly concerning his rights under the European Convention on Human Rights.
Unsurprisingly, the judge took the view that the demands of the Applicant went far beyond what was permissible, and amounted to blatant attempts to reargue points that had already been rejected.
As regards the Applicant’s unissued TOLATA claim against the Respondents, the Applicant was ordered to notify both the court and the Respondent’s solicitors by 4pm on 11 November 2020 whether or not he intended to pursue the claim and, if relevant, to issue his application together with Points of Claim (i.e. summary of the legal basis of his application).
The Applicant was also ordered to, within 21 days, pay the Respondents’ costs of almost £60,000 covering both hearings.
The Applicant applied (a) for permission to appeal (b) for an extension for the time to make an application for permission to appeal and (c) for a stay of execution in relation to costs pending appeal. These applications were, rather unsurprisingly, dismissed.
Feature pic : courtesy of Aaron Shumaker on Flickr – thanks!
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