The recent case of FS v RS is one fraught with the complexities akin to modern family law. Set against the backdrop of the Law Commission’s 1982 recommendation:
‘powers to make orders on the application of an adult child should only be available if the parents’ relationship has broken down’
Sir James Munby gives judgment on this ‘unprecedented’ and ‘most unusual case’.
The applicant was a qualified solicitor aged 41 who, as a result of poor mental health, had been unemployed for nine years. The respondents, the parents residing together in Dubai, provided financial support by way of accommodation and utilities. However, their relationship had since reduced and consequently, so had the financial support.
Therefore, an application was made pursuant to the Matrimonial Causes Act 1973 s.27, the Children Act 1989 Sch.1 and the court’s inherent jurisdiction. The application was on the basis that ‘special circumstances’ under s.27(6B(b) and Sch.1 para.2(1)(b) was substantiated by the mental health issues. Additionally, the applicant appealed to the court’s inherent jurisdiction as a ‘vulnerable’ person.
Under s.27 of the 1973 Act, the applicant was not entitled to bring a claim. While there are provisions to apply as a child, s.27(6A) and s.27(6B), the applicant had not previously obtained a periodical payments order.
The applicant was similarly barred by Schedule 1 of the 1989 Act, para.2(4) which negates the issue of an order when both parents of the applicant reside together in the same household.
Sir Munby stated that Section 27 and Schedule 1 para.2(4) are unambiguous in their restrictions. Thus, he confirmed that FPR 2010 r9.10 could not extend the ‘clear ambit’ of the primary legislation at hand; the court had no power to make an award in the applicant’s favour.
The applicant claimed the statutory provisions should be read down to avoid breaching his rights under Articles 2, 6, 8 and Protocol 1 Article 1 ECHR. Notwithstanding, Ghaidan v Godin-Mendoza [2004] UKHL 30 applied, there was a prescribed, non-discriminatory Parliamentary objective to each provision.
The statutory basis for the application was thus refused. Since none of the above ECHR articles were engaged, the court considered it unnecessary to consider them.
While the applicant’s claim for inherent jurisdiction was considered, it was not available. Inherent jurisdiction cannot compel an unwilling third party to provide money and so, the claim lay ‘far outside the accepted parameters of the branch.’
Sir Munby further confirmed that it was not possible to read down the statutory provisions to protect the applicant’s rights under the ECHR – even if those rights had been engaged.
Therefore, the Family Court could not make the order for financial provision under the Matrimonial Causes Act 1973 s.27, the Children Act 1989 Sch.1 or the court’s inherent jurisdiction.
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