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There is no authority because nobody has thought it plausible up till now to question them

This is a very perplexing case.

It is an appeal from

Re FS v RS and JS 2020

https://www.bailii.org/ew/cases/EWFC/HCJ/2020/63.html

decided by Sir James Munby.

I honestly can’t improve on Sir James Munby’s opening in that judgment, so let’s crack into it

This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel.” I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it.
The cynic will recall the words of Diplock LJ in Robson and another v Hallett [1967] 2 QB 939, 953:
“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”
But if at the end of the day the answer is clear, as in my judgment it is, the points are not so simple as one might at first suppose. Equally in point, is the observation of Thorpe LJ in Moses-Taiga v Taiga [2005] EWCA Civ 1013, [2006] 1 FLR 1074, para 21, that:

“the absence of … authority … only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.”
But is the universal assumption correct? I leave the last word to Megarry J, who in Hampstead & Suburban Properties Ltd v Diomedous [1969] 1 Ch 248, 259, said with grim humour:

“It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.”

The nub of the case is that Mr S is 41 years old. His parents are married to one another and live in Dubai. Mr S has a series of impressive qualifications- he has a First in Modern History, he is a qualified solicitor, he has a Masters in Taxation and is studying for Chartered Tax Advisory and Law School Admissions Test examinations. His parents have provided him with a rent-free flat in central London, and up until this litigation had been paying the utility bills.

Mr S was asking the Court to make an order that his parents financially support him.

Yes, you read that right.

I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it

Yep, that certainly describes my view.

I would certainly say that those representing him left no stone unturned in their efforts to find a legal basis for suggesting that the Court should have jurisdiction to make married parents pay maintenance for their 41 year old professionally qualified son.

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1572.html

Siddiqui v Siddiqui & Anor [2021] EWCA Civ 1572 (02 November 2021)

Could it be s27 of the Matrimonial Causes Act 1973?

  1. Section 27 of the MCA 1973 is headed: “Financial provision orders, etc., in case of neglect by party to marriage to maintain other party or child of the family”. Section 27 provides:

“(1) 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.

I suspect it doesn’t take a Court of Appeal Judge, or even a lawyer to work out why s27 doesn’t work. Hint , a child is not a ‘party to a marriage’

Then Schedule 1 of the Children Act 1989, which does provide provision for a child to apply for financial support from a parent, and there are some breadcrumbs of this applying to children over 18 who are still in education (which Mr S sort of is), but the problem there is

Schedule 1 para 2 (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.

And Mr S’s parents clearly are.

The next attempt was the inherent jurisdiction, which sort of expanded into vulnerable adults who did not meet the tests of the Mental Capacity Act 2005.

The judge rejected this argument for three reasons. First, at [113], because the asserted claim “lies far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant”. The basis of the jurisdiction was, at [114], “to protect and facilitate” a vulnerable adult’s exercise of autonomy.
Secondly, at [123]: “The second reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle that the inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services”. In support of this reason, the judge cited from a number of authorities including N v A Commissioning Group and other [2017] AC 549, a case concerning an application under the Mental Capacity Act 2005, in which Baroness Hale said, at [35]:
“the court only has power to take a decision that P himself could have taken. It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the ‘available options’. In this respect, the Court of Protection’s powers do resemble the family court’s powers in relation to children. The family court … cannot oblige an unwilling parent to have the child to live with him or eve
n to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child.”
Thirdly, at [132]:
“The third reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle which I summarised in In re X (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam); [2017] Fam 80, where I referred at para 37 to:
“the well known and long-established principle that the exercise of the prerogative – and the inherent jurisdiction is an exercise of the prerogative, albeit the prerogative vested in the judges rather in ministers – is pro tanto ousted by any relevant statutory scheme.”
The judge set out, at [137], his assessment of the legislation:
“Between them, the 1973 Act and the 1989 Act provide a comprehensive statutory scheme dealing, along with much else, with the circumstances in which a child, including, as here, an adult child, can make a financial claim against a living parent (I put the point this way to make clear that I have not overlooked section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975). More specifically, the legislation, in its general reach, applies to the applicant, as to every adult child, and is comprehensive in relation to cases falling within its ambit. Furthermore, as Mr Warshaw and Mr Viney point out, the legislation deals explicitly with the very claims the applicant seeks to make; indeed, in the case of the 1989 Act it explicitly prohibits the claim he seeks to pursue. There is accordingly, in my judgment, no scope for recourse to the inherent jurisdictio
n.”

So that is also out.

Next, under the Human Rights Act that there is discrimination under article 14, a breach of Mr S’s article 6 rights and that the Court should read down the existing legislation to allow his application.

(Bear in mind, this is all litigation to decide whether the Court even has power to make the orders Mr S wants – no consideration yet of the merits if any of his application)

The argument here was that Mr S, as a child of parents who are not separated, is being treated differently to a child of parents who are (as he would be able to make a Schedule 1 Children Act application if his parents were separated.)

I am sure that Courts, particularly the Court of Appeal, do not have swear jars, but if they did I would greatly admire the forebearance of anyone who wasn’t chipping in quite heftily. For my part, I can’t read this judgment without muttering “For F***s sake”

110. In my view, it is clearly not. As Mr Warshaw submitted, not permitting an order to be made in favour of a child whose parents still live together does not run counter to the purposes of article 14 or the aim of the ECHR. I also agree with the judge, for the reasons he gave, when he said, at [88], that “the suggested analogy with ‘birth status’ is wholly false”. Apart from the fact that birth status is expressly included in article 14, describing or defining a child as “legitimate” or “illegitimate”, because of the marital status of their parents, is clearly an identifiable characteristic, or status, attributable to the child. There is no equivalence or correlation between a child’s status being defined by whether their parents are or are not married, as relied on by Mr Southey, and the Appellant’s position.
Being the child of parents who are living together in the same household is not a personal or identifiable characteristic any more than being the child of parents who have divorced is a personal characteristic. It is not something the child has or which, in any way, defines the child. Being the child of parents who are not separated is simply a bar to the court making an order under paragraph 2 of Schedule 1. In essence, the Appellant’s complaint is, as Leggatt LJ said, “merely a description of the difference in treatment itself”.
Analogous Situation
I also do not consider that a child of parents who are living together is in a comparable or analogous situation to a child whose parents are separated. As set out in Clift v UK, at [66], “the requirement to demonstrate an ‘analogous position’ does not require the comparator groups to be identical”. What is required is that the “applicant must demonstrate that, having regard to the particular nature of his complaint, he was in a relevantly similar situation to others treated differently”. This is sometimes said to require a specific and contextual analysis.
As set out in the judgment below, the whole history of the relevant statutory provisions show that they are giving the court powers to make financial orders “when the parents’ relationship has broken down”, as set out in the 1982 Report (para 6.31). That is their purpose and objective. They are not focused on needs, as Mr Southey submitted. Needs are clearly relevant to the court’s determination of what, if any, order should be made but only in the context of the parents’ relationship having broken down.
The fact that the jurisdiction to make orders under sections 23 and 24 of the MCA 1973 depends on the parents’ relationship having broken down is self-evident. It is also clear from section 27 because it depends on the failure to provide reasonable maintenance. It is also clear from paragraph 2(4) of Schedule 1 which, as referred to above, was expressly included to ensure that orders could only be made in favour of children “over the age of 18 whose parents are separated”, as made clear by the 1982 Report and as stated by the Lord Chancellor.
Mr Southey additionally submitted that the challenged provisions amount to indirect discrimination because, as set out in DH v Czech Republic at [175], “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group”. The present case is far removed from the facts of DH v Czech Republic which concerned racial discrimination in education in that a disproportionate number of Roma children went to special schools. I do not consider that the principle or approach referred to in that case applies to the circumstances of the present case. All children whose parents are not divorced or separated cannot obtain an order and I do not consider that the challenged provisions can be said to have disproportionately prejudicial effects on a particular group as set out in DH v Czech Republic or as submitted by Mr Southey.
Further, again, as set out in DH v Czech Republic, at [175], the difference in treatment must be between “persons in relevantly similar situations”. In the present case, as explained above, the Appellant is not in a relevantly similar situation to adult children whose parents have divorced or are not living together. As Lady Hale did in R (Stott), at [213], I would quote what Lord Nicholls said in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 at [3]:
“There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.”

In my view, there is an obvious and relevant difference in the present case. The difference is obvious because the Appellant seeks to compare himself with children whose parents are divorced or separated. It is also relevant because, to repeat, the purpose of the legislation is specifically to address the consequences of parents either being divorced or separated or, to put it more broadly, the breakdown of the parents’ relationship.
I would repeat that the Appellant is not treated differently because of his health status or disability. They are not relevant features in the context of this case. Further, as explained above, the Appellant does not have a status which engages article 14 at all.

The appeal was unanimously refused. The judgment doesn’t go on to say whether Mr S’s parents sought an order for costs, nor whether they were ceasing to allow Mr S to live in their London flat unless he starts paying his way. Or indeed whether they are writing a will that cuts Mr S off completely. If they don’t do any of that, they are kinder and better humans than I.

On the plus side, there’s a powerful incentive for Mr S’s parents to never ever separate, because the second they do, the Schedule 1 bar falls away and off we go again. I’ve heard of people staying together for the sake of the children, but this is a new wrinkle.