On the true construction of s 27 of the Matrimonial Causes Act 1973, there was no free-standing jurisdiction for a child to bring a claim for maintenance against a party to a subsisting marriage. The Family Court so ruled, in dismissing an application by the applicant solicitor, aged 41, seeking financial relief against his parents who were married and lived together. Further, the court ruled that, where it was accepted that the respondents lived in the same household, it had no power to make any award in the applicant’s favour pursuant to para 2(4) of Sch 1 to the Children Act 1989; and that, notwithstanding the applicant’s mental health disabilities, the inherent jurisdiction could not be used to compel an unwilling third party to provide money or services, and it could not be exercised as the applicant wished.
 All ER (D) 07 (Oct)
*FS v RS and another
 EWFC 63
Sir James Munby
30 September 2020
Family proceedings – Financial relief and jurisdiction – Adult son’s application for financial relief from married and cohabiting parents
The respondents were a married couple who lived together in Dubai. The applicant, aged 41, was their son. He had several educational and professional qualifications and he was a qualified solicitor.
The respondents had supported the applicant financially over the years and continued, to some extent, to do so. They permitted him to live in a flat in central London, of which they were the registered proprietors, and in relation to which they had, until recently, been paying the utility bills. More recently, the relationship between the applicant and the respondents had deteriorated and the financial support they were prepared to offer had significantly reduced.
The applicant brought proceedings, seeking financial relief against the respondents: (i) pursuant to s 27 of the Matrimonial Causes Act 1973 (MCA 1973) (s 27); (ii) pursuant to Sch 1 to the Children Act 1989 (ChA 1989); and (iii) pursuant to the inherent jurisdiction which applied in relation to adults who, though not lacking capacity, were vulnerable. The applicant’s case was that his mental health disabilities constituted ‘special circumstances’ for the purposes of MCA 1973 s 27(6B)(b) and ChA 1989 Sch 1 para 2(1)(b).
The respondents contended that the court had no jurisdiction to give the applicant the relief he sought under MCA 1973 or ChA 1989, and they disputed that the inherent jurisdiction could be exercised as the applicant sought. The applicant contended otherwise. He relied on his rights under arts 2, 6 and 8 of the European Convention on Human Rights, taken on their own and read together with art 14 of the Convention.
(1) Whether the court had jurisdiction to give the applicant relief under s 27 or ChA 1989 Sch 1 para 2(4) (para 2(4)).
Section 27(1) provided, so far as material, that: ‘Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) (a) has failed to provide reasonable maintenance for the applicant, or (b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.’
The applicant submitted that the court should: (i) construe s 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 sixteen’ appeared after ‘party to a marriage’ and before ‘may apply’.
ChA 1989 Sch 1 para 2 provided, so far as material: ’(1) If, on an application by a person who has reached the age of eighteen, it appears to the court (a) that the applicant is, will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or (b) that there are special circumstances which justify the making of an order under this paragraph, the court may make one or both of the orders mentioned in sub-paragraph (2). (2) The orders are (a) an order requiring either or both of the applicant’s parents to pay to the applicant such periodical payments, for such term, as may be specified in the order; (b) an order requiring either or both of the applicant’s parents to pay to the applicant such lump sum as may be so specified. (3) An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him. (4) 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 … (7) The powers conferred by this paragraph shall be exercisable at any time.’
The applicant submitted that the court should construe para 2(4) as if the words ‘as the applicant’ appeared after ‘in the same household.’
The applicant submitted that both s 27 and para 2(4) should be read down, pursuant to s 3 of the Human Rights Act 1998 (HRA 1998), if they were construed in a way that was inconsistent with his rights under arts 2, 6, 8 and 14 of the Convention.
The problems facing the applicant were immediately apparent. On the face of it:
(i) in relation to s 27, he was not a person entitled to make an application under sub-s (1), and he could not bring himself within either sub-(6)(A) or sub-s (6)(B), because there never was a periodical payments order in his favour; (ii) in relation to ChA 1989 Sch 1, he was barred by para 2(4), because his parents ‘are living with each other in the same household’ (see  of the judgment).
So far as concerned s 27, there was no legitimate process of construction by which, adopting an appropriately purposive approach though leaving aside ‘reading down’, it could be read as counsel for the applicant would have the court agree. The statutory language was clear and meant what it said, and if, which there was not, there was any ambiguity or other room for doubt, that would inexorably be determined against him by the Law Commission’s Report. The simple fact was that a child could apply for relief under s 27 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 MCA 1973 for a child to bring a claim for maintenance against a party to a subsisting marriage (see ,  of the judgment).
In relation to para 2(4), the matter was equally clear. The statutory phrase ‘living with each other in the same household’ meant what it said, nothing less and nothing more. The answer to who was, or were, the persons embraced in the words ‘each other’ in the statutory language ‘living with each other was supplied by the immediately preceding words ’the parents of the applicant.’ Accordingly, by adding in a reference, as counsel for the applicant would have it, to someone else - ‘the applicant’ - one was not construing the statutory language; one was adding words, so as to change its meaning (see  of the judgment).
The wording of para 2(4) was explicit. There was no ambiguity. It was accepted by everyone that the respondents lived in the same household. Accordingly, the court had no power to make any award in the applicant’s favour (see  of the judgment).
Accordingly, with para 2(4), as with s 27, the statutory language was clear and meant what it said. And if, which there was not, there was any ambiguity or other room for doubt, that would again, as with s 27, inexorably be determined against the applicant by the Law Commission’s Report (see ,  of the judgment).
Assuming, in the applicant’s favour that, without the reading down for which he contended there would be a breach of his rights on one or other of the grounds relied on, and applying settled principles to the facts, the present court could not read down. In the circumstances, it would be fundamentally wrong and inconsistent with principle to read the proposed language into either statute. In each case, it was clear that there was a very precise Parliamentary purpose or objective: in the case of s 27, 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 be made only by a party to the marriage; and in the case of para 2(4), that the legislation was to remove discrimination against the illegitimate, but no more - 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.’ What counsel for the applicant and the applicant contended for was flatly contrary to the scheme clearly laid down by Parliament and contradicted the will of Parliament (see , - of the judgment).
In the circumstances, it would be fundamentally wrong and inconsistent with principle to read the proposed language into either statute (see  of the judgment).
It was, therefore not necessary for the court to deal with the contention that, construed in the way in which it had construed them, both s 27 and para 2(4) were inconsistent with the applicant’s rights under art 2, 6, 8 and 14 of the Convention, and art 1 of the First Protocol to the Convention. If counsel for the applicant and the applicant were right in their contentions, the applicant’s only remedy in the circumstances was a declaration of incompatibility under s 4, which he had not sought. Nothing the court had yet heard began to persuade it that the applicant had any case. Applying settled law to the facts, the applicant failed to make good his case based on the Convention (see - of the judgment).
Ghaidan v Godin-Mendoza  UKHL 30 applied; Z (a child), Re  EWFC 73 explained; Re X (a child) (parental order: surogacy arrangement)  EWFC 39 explained; Downing v Downing  3 All ER 474 considered; J v C (child: financial provision)  1 FLR 152 considered; Osman v United Kingdom (Application No 23452/94)  1 FLR 193 considered; S (children: care plan), Re; Re W (children: care plan)  UKHL 10 considered; Ghaidan v Godin-Mendoza  UKHL 30 considered; Kehoe v United Kingdom (Application No 2010/06)  2 FLR 1014 considered; Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police  UKHL 50 considered; Mathieson v Secretary of State for Work and Pensions  UKSC 47 considered; Z (A child) (No 2), Re  EWHC 1191 (Fam) considered; R (on the application of Unison) v Lord Chancellor  UKSC 51 considered; Gilham v Ministry of Justice  UKSC 44 considered.
(2) Whether the court had jurisdiction to grant the applicant relief under the inherent jurisdiction.
It was settled law that relief (under the inherent jurisdiction) could be granted in a ‘novel’ case. However, novelty alone did not demand a remedy. Any development of the inherent jurisdiction had to be principled and determined by more than the length of the Chancellor’s foot (see - of the judgment).
It was clearly established that the branch of the inherent jurisdiction on which counsel for the applicant relied existed. However, the inherent jurisdiction was not available to assist the applicant in the way suggested by his counsel. Such a claim lay far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant. It was important, at the outset, to appreciate that, precisely because they did not lack capacity, those subject to that branch of the inherent jurisdiction were fully autonomous adults; and that, fundamentally, the jurisdiction existed to protect and to facilitate their exercise of that autonomy (see , - of the judgment).
The second reason why the inherent jurisdiction was not available to assist the applicant was because of the fundamental principle that the inherent jurisdiction could not be used to compel an unwilling third party to provide money or services (see ,  of the judgment).
The third reason why the inherent jurisdiction was not available to assist the applicant was because of the fundamental principle in authority that the exercise of the prerogative - and the inherent jurisdiction was an exercise of the prerogative, albeit the prerogative vested in the judges rather in ministers - was pro tanto ousted by any relevant statutory scheme (see  of the judgment).
It followed that the inherent jurisdiction was not available to the applicant (see  of the judgment).
Concerning the three matters currently before the court, the applicant had no case. His applications would be summarily dismissed. The court had no jurisdiction to give him the relief he sought under MCA 1973 or ChA 1989, and the inherent jurisdiction could not be exercised as he would wish (see  of the judgment).
C (a minor), Re  2 FLR 168 applied; R (on the application of Kehoe) v Secretary of State for Work and Pensions  UKHL 48 applied; Holmes-Moorhouse v Richmond-upon-Thames London Borough Council  UKHL 7 applied; Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 applied; Re X (A Child); Re Y (A Child)  EWHC 2271 (Fam) applied; N v ACCG  UKSC 22 applied; JK v A local health board  EWHC 67 (Fam) applied; F, Re  2 AC 1 considered; R (a minor), Re  Fam 254 considered; SK (an adult) (forced marriage: appropriate relief), Re  EWHC 3202 (Fam) considered; SA (vulnerable adult with capacity: marriage), Re  EWHC 2942 (Fam) considered; LBL v RYJ  EWHC 2665 (COP) considered; A Local Authority v DL  EWCA Civ 253 considered; A Local Authority v DL  EWHC 1022 (Fam) considered; Anderson (personal representative of William Brian Anderson deceased) v Spencer  EWCA Civ 100 considered; Southend-on-Sea Borough Council v Meyers  EWHC 399 (Fam) considered; Wakefield Metropolitan District Council and another v DN and another  EWHC 2306 (Fam) considered; Redcar and Cleveland Borough Council v PR and others  EWHC 2305 (Fam) considered.
Tim Amos QC for the applicant.
Justin Warshaw QC and Joshua Viney for the respondents.
Carla Dougan-Bacchus - Barrister.