FS v RS

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date30 September 2020
Neutral Citation[2020] EWFC 63
CourtFamily Court
Docket NumberCase No: ZC20P04055
Date30 September 2020
Between:
FS
Applicant
and
(1) RS
(2) JS
Respondents

[2020] EWFC 63

Before:

Sir James Munby

Case No: ZC20P04055

IN THE FAMILY COURT

At the Royal Courts of Justice

In Open Court

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Tim Amos QC (instructed by Payne Hicks Beach) for the Applicant

Mr Justin Warshaw QC and Mr Joshua Viney (instructed by Clintons) for the Respondents

Hearing date: 12 August 2020 (by Zoom)

Judgment Approved by the court for handing down

Sir James Munby
1

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.

2

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 facts

3

Put shortly, the applicant, who is the 41-year old son of the respondents, seeks financial relief against them: (i) pursuant to Section 27 of the Matrimonial Causes Act 1973; (ii) pursuant to Schedule 1 to the Children Act 1989; and (iii) pursuant to that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are “vulnerable.” Mr Justin Warshaw QC and Mr Joshua Viney, appearing for the respondents, dispute that the court has jurisdiction to give the applicant the relief he seeks under the 1973 Act or the 1989 Act and dispute that the inherent jurisdiction can ever be exercised as the applicant would wish. Mr Tim Amos QC, on behalf of the applicant, contends otherwise. In support of these claims, Mr Amos seeks to pray in aid the applicant's rights under each of Article 2, Article 6 and Article 8 of the Convention, taken on their own, and, in any event, his rights under each of those Articles read together with Article 14 (he expressly disavowed reliance on Article 3).

4

Since I am at present concerned entirely with matters of law, I can take the facts very shortly. Mr Warshaw and Mr Viney observe that, despite the limited scope of this hearing (see below), the applicant has chosen to have included in his counsel's skeleton arguments comments about himself and his parents which, they say, are unnecessary, unpleasant, wholly unjustified and bordering on insulting. In the interests of fairness, as they put it, it is necessary to remind the court of some of the features of what they call the applicant's own egregious conduct. Mr Amos rejects these complaints.

5

I do not propose to go any further than is absolutely necessary into this unedifying and really rather sad dispute. As Thorpe LJ observed in Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324, [2006] 1 WLR 578, [2006] 1 FLR 825, para 19, in response to submissions made by the claimant as to merits in a case where the Court of Appeal was dealing with a jurisdictional question, “what is before us is a pure point of law that does not admit of any inquiry as to where justice lies”.

6

The respondents are and have at all material times been married. They have never divorced and live together in Dubai. The applicant, as I have said, is their son. He has several educational and professional qualifications: he has a first degree in Modern History; he is a qualified solicitor; he has a Masters in Taxation, for which he studied at the Institute of Advanced Legal Studies; and he is now studying for his Chartered Tax Advisory and Law School Admissions Test examinations. As against that, he has various difficulties and mental health disabilities which there is no need for me to elaborate at this stage, though their true extent is not clear; they will become highly material if the matter proceeds. Suffice it to say that his case is that they constitute “special circumstances” as that phrase is used in section 27(6B)(b) of the 1973 Act and paragraph 2(1)(b) of Schedule 1 to the 1989 Act. That is disputed, as a matter of both fact and law, by Mr Warshaw and Mr Viney. The applicant's case is that he is in any event “vulnerable” as that word is used in the authorities relating to the inherent jurisdiction. That also is in dispute, but for the purpose of deciding the preliminary issue I am prepared to assume, though I emphasise without deciding, that he is indeed vulnerable in that sense. He has been unemployed since 2011.

7

His parents have supported him financially down the years and continue, to some extent, to do so. They have permitted him to live in a flat in central London, of which they are the registered proprietors, and in relation to which they have until recently been paying the utility bills. Of late, and for reasons which again there is no need to explore at this stage, the relationship between the applicant and his parents, in particular, it would appear, his father, has deteriorated and the financial support they are prepared to offer has significantly reduced.

8

Mr Amos tells me that the applicant's parents are very wealthy and have more than enough comfortably to meet any order which the court might reasonably make, even taking the applicant's financial claims at their highest. He characterises their stance as seemingly being that, having in fact, whether wittingly or unwittingly, nurtured his dependency on them for the last 20 years or so – with the consequence that he is, so it is said, now completely dependent on them –, they now seek to cast that dependency onto the State. He characterises their stance as being that the British state should pick up whatever is the appropriate “tab” for their son, rather than that he should be supported by his non-resident parents. He submits that “this proposition imports an obvious disconnect and should be rejected by the court, inter alia as a matter of policy.” He invites the court to say that it has both the jurisdiction and the duty to protect the applicant, rather than abandon him now to the capricious decisions of his parents. He submits that the nature and style of their attacks on their son is another reason why the court should not leave his future in his parents' discretion. They cannot be trusted to look after him and the more they fight against the orders he seeks, the more, he says, the court should rightly be concerned for his future.

9

Needless to say, while making no comment as to their means, Mr Warshaw and Mr Viney vigorously challenge this characterisation of their clients.

10

In addition to the three claims I have already identified, the applicant has signalled his intention to bring TOLATA proceedings in relation to the flat, his claim being that it is held by his parents on trust for him as the absolute beneficial owner.

The proceedings

11

The papers were placed before Mostyn J on 18 July 2020 with a request from the applicant's solicitors for an urgent hearing within a week. On 20 July 2020 Mostyn J made an order allocating all four claims to me and directing a preliminary CMC (by Zoom) before me on 28 July 2020.

12

At that CMC the respondents confirmed that they took no point on service. I treated the application under the inherent jurisdiction as being before the court even though not issued. I adjourned generally further consideration of the unissued TOLATA claim. I directed that there be a further hearing before me on 12 August 2020 to determine jurisdiction in relation to the claims under the 1973 Act and the 1989 Act and under the inherent jurisdiction, on the assumption (without prejudice to the respondents' case as to whether he is) that the applicant is a “vulnerable person” as defined in the authorities.

13

During the CMC Mr Amos sought to persuade me to make an immediate order for interim maintenance (including costs-funding) on a Moses-Taiga basis. I declined to do so, taking the view that rather than become involved in a debate as to whether or not such an order could or should be made when the applicant was a child rather than a spouse (a debate which might itself delay matters), the appropriate way forward was to have the very early hearing that I directed.

14

In accordance with the directions I had given, the matter came on for hearing before me (again by Zoom) on 12 August 2020. Mr Amos again sought to persuade me to make an immediate order for interim maintenance (including costs-funding) on a Moses-Taiga basis. I declined to do so, for much the same reasons as before. At the end of the hearing, and in...

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