FS v RS and JS  EWFC 63
The WLR Daily case summaries
FS v RS and another
2020 Aug 12; Sept 30
Sir James Munby sitting as a High Court judge
Marriage— Family provision— Neglect to maintain— Adult son seeking financial relief against married and cohabiting parents— Whether possible to construe legislation to bring applicant within provisions— Whether Convention rights engaged— Whether inherent jurisdiction in relation to vulnerable adults available to aid applicant— Matrimonial Causes Act 1973 (c 18), s 27(1)(6A)(6B) (as amended by Domestic Proceedings and Magistrates’ Courts Act 1978 (c 22), s 63(4) and Family Law Reform Act 1987 (c 42), s 33(1), Sch 2, para 52) — Children Act 1989 (c 41), Sch 1, para 2(4) — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 6, 8, 14
The applicant, a 41-year old adult, sought financial relief against his parents, who were at all material times married and cohabiting and lived abroad, pursuant to (i) section 27 of the Matrimonial Causes Act 1973, (ii) Schedule 1 to the Children Act 1989 and (iii) the inherent jurisdiction in relation to adults who, though not lacking capacity, were vulnerable. He contended that his parents had nurtured his dependency on them for the last 20 years or so with the consequence that he was now completely dependent on them. The applicant further sought to pray in aid his rights under each of articles 2, 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and/or under article 14 read with those articles.
On the applications—
Held, applications refused. (1) The applicant was not entitled to make an application under section 27(1) of the 1973 Act, nor could he bring himself within either subsection (6A) or (6B) because there had never been a periodical payments order in his favour. In relation to Schedule 1 to the 1989 Act, he was barred by paragraph 2(4) because his parents were living with each other in the same household. Rejecting the argument that the court should (i) construe section 27(1) as if the words “or, in the case of subsection (b) below, a child of the family who has attained the age of 16” appeared after “party to a marriage” and before “may apply” and (ii) construe paragraph 2(4) of Schedule 1 to the 1989 Act as if the words “as the applicant” appeared after “in the same household” by a process of reading down in accordance with section 3 of the Human Rights Act 1998, there was no legitimate process of construction by which those provisions could be so read. The statutory language was clear and meant what it said and if there was any ambiguity or other room for doubt that would inexorably be determined against the applicant by the Law Commission’s Report, Family Law: Report on Financial Provision in Matrimonial Proceedings (1969) (Law Com No 25), paragraph 42. A child might apply for relief under section 27 of the 1973 Act only where there had already been an order in the child’s favour applied for by one of the parties to the marriage. More generally, there was no free-standing jurisdiction under the 1973 Act for a child to bring a claim for maintenance against a party to a subsisting marriage. In each case what the applicant contended for was flatly contrary to the legislative scheme clearly laid down by Parliament and contradicted the will of Parliament. In the circumstances it would be fundamentally wrong and inconsistent with principle to read the proposed language into either statute and would not be “compatible with the underlying thrust of the legislation”, nor would it “go with the grain of the legislation”. On the contrary, it would be to ignore what was, as it had always been, a key feature of the scheme and scope of the legislation (paras 23, 24, 39, 59, 60, 61).
Dicta of Lord Nicholls of Birkenhead and Lord Rodger of Earlsferry in Ghaidan v Godin-MendozaB, paras 33, 111, 116, 121–122, HL(E) applied. (2) Although it was therefore not necessary to deal with the applicant’s contention that both section 27 of the 1973 Act and paragraph 2(4) of Schedule 1 to the 1989 Act were inconsistent with his rights under the Convention, it was quite impossible for the facts relied upon to engage, let alone breach, any of the articles relied on and, further, there could be no discrimination against the applicant since none of the categories of article 14 was relevant (paras 66, 69, 95, 96).
(3) The inherent jurisdiction was not available to assist the applicant where (i) such a claim lay far outside the accepted parameters of the branch of the inherent jurisdiction which fundamentally existed to protect and to facilitate the exercise of the autonomy of fully autonomous adults, (ii) because of the fundamental principle that the inherent jurisdiction could not be used to compel an unwilling third party to provide money or services and (iii) because of the fundamental principle that the inherent jurisdiction was pro tanto ousted by a relevant statutory scheme (paras 113, 114, 123, 132).
Dicta of Millett LJ in In re R (Wardship: Restrictions on Publication)  Fam 254Not on Bailii!, 271, CA, In re SA (Vulnerable Adult with Capacity: Marriage)B, In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) B, CA, dicta of Baroness Hale of Richmond in Holmes-Moorhouse v Richmond upon Thames London Borough Council B, paras 30, 38, HL(E) and dicta of Sir James Munby P In re X (A Child) (Jurisdiction: Secure Accommodation) B, para 37 applied. Timothy Amos QC (instructed by Payne Hicks Beach) for the applicant.
Justin Warshaw QC and Joshua Viney (instructed by Clintons) for the parents.
Jeanette Burn, Barrister
Matrimonial Causes Act 1973 (c 18), s 27(1)(6A)(6B) (as amended by Domestic Proceedings and Magistrates’ Courts Act 1978 (c 22), s 63(4) and Family Law Reform Act 1987 (c 42), s 33(1), Sch 2, para 52)
Children Act 1989 (c 41), Sch 1, para 2(4)
Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 6, 8, 14