Court of Appeal: Underhill VP, Moylan and Dingemans LJJ, [2021] EWCA Civ 1572, 2 November 2021

The claimant was a qualified solicitor with “various difficulties and mental health disabilities” who had been unemployed since 2011 and was accepted for the purposes of the litigation as being “vulnerable” as the term is used in the authorities relating to the inherent jurisdiction. He unsuccessfully sought financial orders against the respondents, his parents, requiring them to continue to provide him with significant financial support. His applications failed on the basis that the family court had no jurisdiction to make the orders sought under s27 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989 (because his parents were neither divorced nor separated), and that its inherent jurisdiction was not available to assist the applicant because of the “fundamental principle” that the jurisdiction cannot be used when there was “a comprehensive statutory scheme dealing … with the circumstances in which a child, including as here, an adult child, can make a claim against a living parent”. It further ruled that s3 HRA did not permit an alternative construction. The claimant appealed on the basis, inter alia, that the matters complained of fell within the scope of Articles 6 and 8 and A1P1 and engaged a protected status. Moylan LJ, with whom Moylan and Dingemans LJJ agreed, dismissed the appeal.

The claimant sought to rely on Article 14 on the basis that, whereas adult disabled children of divorced and separated parents were entitled to seek access to financial support from them, he was not so entitled by virtue of the fact that his parents remained married. The family court had ruled that the matters complained of were not within the scope of Articles 2, 6 or 8 of the Convention or of A1P1, and did not otherwise constitute discrimination within Article 14. In particular, it rejected the claim that being the child of parents who are either divorced (or not) and/or separated (or not) was “not a status included within the enumerated list, nor … is it an ‘other status’ within the meaning of Article 14”. In his appeal the claimant sought to rely on the more more flexible approach taken to ‘other status’ by the Supreme Court in R (Stott) v Secretary of State for Justice[2018] UKSC 59; [2020] AC 51 and R (C & Ors) v Secretary of State for Work and Pensions and others [2019] EWCA Civ 615, [2019] 1 WLR 5687.

Moylan LJ, with whom Underhill VP and Dingemans LJ agreed, at §101 summarised the claimant’s case as being that “because some adult children are entitled to apply for financial provision from their parents if there are ‘special circumstances’, it is discriminatory that all adult children cannot apply if there are special circumstances”. He characterised as “scattergun” the submissions made for the claimant  “in that they appeared to comprise a general challenge to the absence of any route by which [he] could make a claim for financial provision against his parents and did not always articulate why the various claims available to adult children in certain circumstances were discriminatory in respect of the Appellant, or others who are also unable to make claims, because of the jurisdictional framework”. At §102 Moylan LJ set out the four questions put by Lady Hale in Scott at §207: “(1) does the treatment complained of fall within the ambit of one of the Convention rights; (2) is that treatment on the ground of some “status”; (3) is the situation of the claimant analogous to that of some other person who has been treated differently; and (4) is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?” and, while noting that “there is often a significant degree of overlap”, nevertheless went on to consider them separately.

His Lordship cited SC, Carson v United Kingdom  (Application no. 42184/05) (2010) 51 EHRR 13, Clift v United Kingdom (Application No 7205/07, 13 July 2010) §60 and R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 §56, per Lady Black before accepting at §109 that the treatment complained of under Schedule 1 para 2 of the Children Act 1989 was because the claimant’s parents were living together, though at §§109-110 he concluded that this did not amount to “a personal or identifiable characteristic of the Appellant, ‘taking into consideration all of the circumstances of the case and bearing in mind the aim of the Convention’” (citing Clift v UK §60). He agreed with the judge below 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 [claimant’s] position”. And at §111, “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 [in R (SC) v Secretary of State for Work and Pensions [2019] EWCA 615, [2019] 4 All ER 787], ‘merely a description of the difference in treatment itself’”.

At §112 Moylan LJ concluded that “a child of parents who are living together is [not] in a comparable or analogous situation to a child whose parents are separated”, this because (§113) “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’” and “are not focused on needs”. At §§119 and 123 Moylan LJ ruled that the matters complained of did not come within the scope of Article 6 or A1P1, this because the claimant had no relevant legal claim, and at §121 he ruled that the Article 8 rights in issue were those of the claimant’s parents rather than the claimant himself. Finally, as to justification (§§129-130) “The aim in the present case, in respect of claims by children but also claims by spouses or parents, is to address the financial consequences of a breakdown in the parents’ relationship … clearly a legitimate aim … [and] the … right to make an application for financial provision … excludes children whose parents have not separated, because to include them would be in pursuit of a completely different aim”.

Dingemans LJ agreed, Underhill VP stating (this being a rolled-up hearing) that he would have denied permission on the basis that the claimant’s grounds of challenge had no reasonable prospect of success (§136):

137. … even if (contrary to my view) prima facie discrimination could be established, the Appellant’s claim would be bound to fail on the issue of justification.  The question of the circumstances in which parents may be ordered to provide financial support to their adult children has been the subject of legislation on two occasions. It is clear … that it is the considered policy of Parliament that parents may only be ordered to provide support to their adult children in the context of relationship breakdown and that there should be no general discretionary power to require the provision of such support outside that context…
138. … The relevant provisions of the MCA 1973 and the CA 1989 are concerned only with situations of relationship breakdown, and their aim is simply that children – including, in some circumstances, adult children – should be protected from the loss of financial support when their parents’ relationship breaks down (the paradigm case, as regards adult children, being where their education or training is jeopardised by financial disputes between their parents). That does not … call in question what was plainly Parliament’s view, reflecting understood social norms, that (whatever the moral position might be) parents should be under no legal duty to support their adult children, however grave their need. Judgements of that kind are peculiarly a matter for Parliament, and this is a situation of the type identified by Lord Reed at para. 161 of his judgment in R (SC) where a particularly wide margin – corresponding to the “manifestly without reasonable foundation” formulation – must be accorded to the legislator… I do not consider it remotely arguable that attitudes have changed in a way that would require us to hold that it was manifestly without reasonable foundation that adult children should be unable to claim financial support from their parents outside the parameters of that legislation.

Claimant: Hugh Southey QC, instructed by Dale Langley Solicitors

Respondents:  Justin Warshaw QC, Joshua Viney and Jennifer MacLeod, instructed by Clintons Solicitors