Justin Warshaw QC and Josh Viney represented the successful respondents in this appeal by a 41-year-old seeking maintenance from his parents
- The Appellant, aged 41, sought financial support from the Respondents, his parents. He had been a qualified solicitor but had been unemployed since 2011. He asserted that he had various difficulties and mental health disabilities.
- The Respondents, aged 69 and 71, were married, had never divorced, and lived together in Dubai. The Respondents had financially supported the Applicant for many years, and continued to do so at the time of the hearing, for example, by permitting him to live in their flat in central London.
- The Appellant applied for permission to appeal the order made by Sir James Munby in RS v JS and another  4 WLR 139.
First instance judgment
- The Appellant had sought financial relief against the Respondents pursuant to (i) s.27 of the Matrimonial Causes Act 1973 (MCA 1973), (ii) Schedule 1 to the Children Act 1989, and (iii) the inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are ‘vulnerable’.
- The Appellant alleged that his mental health disabilities and difficulties constituted ‘special circumstances’ for the purposes of s.27(6B)(b) of the 1973 Act and paragraph 2(1)(b) of Schedule 1 of the 1989 Act. This was disputed, as a matter of both fact and law, by the Respondents.
- The Appellant further alleged that he was, in any event, ‘vulnerable’ as understood in authorities relating to the inherent jurisdiction. This was also disputed by the Respondents.
- At first instance, Sir James Munby dismissed the claims, finding that there was no jurisdiction to make the orders sought by the Appellant. Sir James found that the Appellant could not bring himself within the requirements of the relevant statutes because his parents were not divorced or living apart. Similarly, Sir James held that the inherent jurisdiction was not available and rejected the Appellant’s argument that the provisions of the Human Rights Act 1998 (HRA 1998) could provided a route to relief, notwithstanding the wording of the statutes.
Application for permission to appeal
- The application for permission to appeal relied on four matters the Appellant asserted the judge had erred in concluding, namely that:
- The subject matter did not come within the ambit of a right protected by the Convention (specifically Articles 6, 8 and Article 1 Protocol 1);
- Any discrimination was not on a ground that comes within the scope of Article 14 of the Convention;
- Relevant statutory provisions could not be read compatibly with the Convention;
- Alternatively, to the extent that the relevant statutory provisions cannot be read compatibly, compatibility with Article 14 cannot be achieved through the use of the courts’ inherent powers.
- McCombe LJ adjourned the applications for permission of (a) and (b) to be determined at an oral hearing, and refused permission in respect of (c) and (d). The appellant then applied for permission to reopen McCombe LJ’s refusal of permission, which was refused by Stuart-Smith LJ on 12 February 2021. Two consequences of this were that (i) the Appellant would not be able to appeal Sir James’ decision that s.3 HRA 1998 could not be used to ‘read down’ the legislation and (ii) that s.4 could not be used for a Declaration of Incompatibility.
The issues for this appeal were matters of status (ground (b) above), ambit (ground (a) above) and justification. The ‘rolled up’ (permission and merits) appeal was heard by The Court of Appeal (Underhill, Moylan and Dingemans LLJ). Moylan LJ gave the leading judgment, with which the other judges agreed.
- The issue of status addressed ground (b) above, namely the status of the Applicant and whether that brought about discrimination. The applicant sought to define his relevant status as being, either:
- An adult child whose parents continue to live together (under CA 1989);
- An adult whose parents have not divorced (under MCA 1973); or
- ‘Other status’ on the grounds of health status and disability, for the purposes of Article 14.
- The Appellant also sought to argue that the provisions amounted to indirect discrimination on the grounds of health status and disability, under the scope of ‘other status’ for the purposes of Article 14. The Respondents argued that being an adult child of parents who are not separated or have not divorced is not a personal or identifiable characteristic so as to fall under the scope of ‘other status’.
- As to ambit, the question was whether any of the Appellant’s claims under the MCA 1973 and/or Schedule 1 CA 1989 fall within the ambit of the rights protected by the ECHR for the purposes of Article 14.
- A difference in treatment of persons in analogous situations must have an objective and reasonable justification. The challenged measures must pursue a legitimate aim and the means employed must be reasonably proportionate to the aim pursued.
- The Applicant argued that there is no adequate justification for enabling some adult children to obtain financial provision form their parents but not others. The Respondents submitted that the difference in treatment was justifiable, particularly since the legislation had the clear purpose of prohibiting claims such as this.
- The judges refused the Appellant’s application for permission to appeal.
- Status is a broad concept and deliberately applied broadly, however, it is not unlimited. In relation to both s.27 MCA 1973 and Schedule 1 CA 1989, the Appellant’s inability to make an application is not based on the fact his parents have not divorced, are living together, or his health or disability.
- The Appellant sought to compare himself with children whose parents are divorced or separated. The purpose of the legislation is specifically to address the consequences of the breakdown of parental relationship, and so the Appellant is not in a relevantly similar situation.
- As to ambit, the court held that the articles relied on by the Appellant did not apply. In fact, it was the view of the court that it would be the Respondents who would be able to rely on the Article rights if they were challenging the Appellant’s right to make a claim against them.
On the issue of justification, the aim pursued was to address the financial consequences of the breakdown in a parents’ relationship. The court stated that this was clearly a legitimate aim. The means employed to pursue this were also proportionate to that aim. The Appellant’s argument sought to turn this on its head. It was not ‘the other side of the coin’. It is the measures which exist which must be justified, not the absence of so