At the Royal Courts of Justice
In Open Court
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Justin Warshaw QC and Mr Joshua Viney (instructed by Clintons) for the Respondents
Hearing date: 12 August 2020 (by Zoom)
Crown Copyright ©
Covid-19 Protocol: This judgment will be handed down by the judge remotely by circulation to the parties' representatives by email and by placing it on BAILII. The date and time for hand-down will be deemed to be in Open Court at 12 noon on 30 September 2020 (at which time the judgment will be published on BAILII).
Sir James Munby :
"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  EWCA Civ 1013,  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  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 statutory claims
"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."
"(6A) An application for the variation under section 31 of this Act of a periodical payments order or secured periodical payments order made under this section in favour of a child may, if the child has attained the age of sixteen, be made by the child himself.
(6B) Where a periodical payments order made in favour of a child under this section ceases to have effect on the date on which the child attains the age of sixteen or at any time after that date but before or on the date on which he attains the age of eighteen, then if, on an application made to the court for an order under this subsection, it appears to the court that –
(a) the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he also is, will be or would be in gainful employment; or
(b) there are special circumstances which justify the making of an order under this subsection,
the court shall have power by order to revive the first mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to exercise its power under section 31 of this Act in relation to any order so revived."
"On granting a decree of divorce … or at any time thereafter (whether, in the case of a decree of divorce … before or after the decree is made absolute), the court may make any one or more of the following orders …
(d) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; …
subject, however, in the case of an order under paragraph (d) … above, to the restrictions imposed by section 29 (1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen."
"(1) Where a petition for divorce, nullity of marriage or judicial separation has been presented, then, subject to subsection (2) below, proceedings … for a financial provision order under section 23 above … may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition.
(2) Rules of court may provide, in such cases as may be prescribed by the rules –
(a) that applications for any such relief as is mentioned in subsection (1) above shall be made in the petition or answer; and
(b) that applications for any such relief which are not so made, or are not made until after the expiration of such period following the presentation of the petition or filing of the answer as may be so prescribed, shall be made only with the leave of the court."
"(1) Subject to subsection (3) below, no financial provision order … shall be made in favour of a child who has attained the age of eighteen. …
(3) Subsection (1) above … shall not apply in the case of a child, if it appears to the court that –
(a) the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or
(b) there are special circumstances which justify the making of an order without complying with either or both of those provisions."
"(1) If, on an application by a person who has reached the age of eighteen, it appears to the court –
(a) that the applicant is, will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or
(b) that there are special circumstances which justify the making of an order under this paragraph,
the court may make one or both of the orders mentioned in sub-paragraph (2).
(2) The orders are –
(a) an order requiring either or both of the applicant's parents to pay to the applicant such periodical payments, for such term, as may be specified in the order;
(b) an order requiring either or both of the applicant's parents to pay to the applicant such lump sum as may be so specified.
(3) An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.
(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.
(7) The powers conferred by this paragraph shall be exercisable at any time."
i) In relation to section 27 of the 1973 Act, he is not a person entitled to make an application under subsection (1), and he cannot bring himself within either subsection 6(A) or 6(B) because there never was a periodical payments order in his favour.
ii) In relation to Schedule 1 to the 1989 Act, he is barred by paragraph 2(4), because his parents "are living with each other in the same household."
i) To construe section 27(1) as if the words "or, in the case of subsection (b) below, a child of the family who has attained the age of sixteen" appeared after "party to a marriage" and before "may apply."
ii) To construe paragraph 2(4) as if the words "as the applicant" appeared after "in the same household."
He argues that the outcomes for which he contends can properly be arrived at both by a traditional approach to statutory construction and, if that is wrong, by a process of 'reading down' in accordance with section 3 of the Human Rights Act 1998.
The legislative history
"In the Working Paper we drew attention to the somewhat confused position regarding the power for persons other than the spouses to apply for orders concerning provision for the children … In future there will be many cases where orders will be obtainable in respect of children over 18 but still being educated … We … recommend that rule 69 [of the Matrimonial Causes Rules 1968] should be amended so as to entitle a child of the family over the age of 18 to apply if he has obtained leave to intervene for that purpose. We think leave should be required so as to avoid the possibility of capricious interventions by children in their parents' matrimonial proceedings. We should make it clear that we do not recommend that such a child should be entitled to apply except in a suit between the parents. In other words, all he should be entitled to do is to intervene with leave in his parent's suit for divorce, nullity or judicial separation in order to apply for financial provision. We do not think that it would be desirable to give a child (particularly an adult child) a power to take his parents to court to obtain finance because, for example, he wants to embark on a scheme of training which they are not prepared to support (emphasis added)."
"So far as the law is concerned, all children will have equal rights to financial provision from both their parents … What the law can and, in our view should, do is to remove the wholly distinct procedure relating to illegitimate children, tainted as it is by its historical association with the Poor Law and its overtones of criminality."
"It seems to us … that if unmarried parents separate it is only right that the court should be able to make any appropriate order in favour of a child of theirs, just as it could make an order if the child's parents were in the process of divorce or judicial separation."
"We think that the inability of a non-marital child (and only a nonmarital child) to obtain a new financial provision order in any circumstances once he has attained the age of 18 would conflict with the basic policy of assimilating the legal position of marital and non-marital children. Although the precise method for application varies, the principle of the present law so far as marital children are concerned is reasonably clear, namely that a child of 18 and over should be able, in specified circumstances, to obtain financial provision from his parents where their relationship has manifestly broken down. We therefore recommend that the Guardianship of Minors Act 1971 should be amended to allow a child who has attained the age of 18 to apply to the court in certain circumstances for an order for periodical payments or a lump sum. The result will be to confer on all children of 18 and over, not just those born outside marriage, a new right to apply at their own instance for financial provision if they are undergoing education or training or if there are special circumstances. The children of divorced or divorcing parents already in effect have rights to apply for financial orders by virtue of the decision in Downing v Downing (Downing intervening)  Fam 288 and we can see no sufficient reason why this right should not be shared by other children whose parents' relationship has broken down (emphasis added)."
"We have said that the powers to make orders on the application of an adult child should only be available if the parents' relationship has broken down. This seems to be the policy of the present law; and we do not think it would be right, in the context of reforms primarily concerned to remove the legal disadvantages of illegitimacy, to seek to introduce a fundamental change. What method is to be adopted to achieve this result? … It seems to us that the best evidence of the breakdown of both married and unmarried relationships is provided by the parties separating; and we accordingly recommend that an adult child should only have a right to apply to the court for financial relief if at the time of the application his parents are not living with each other. Moreover, the court should not be empowered to make orders at a time when the parents of the applicant are living with each other (emphasis added)."
"(1) Any person who has attained the age of eighteen (whether or not his parents have at any time been married to each other) may apply … for an order under this section if at the time of the application his parents are not living with each other.
(4) No order shall be made under this section at a time when the parents of the applicant are living with each other."
"provision is made for applications by children over the age of 18 whose parents are separated and who are undergoing further education or training, or who have special needs, such as would arise from some form of physical handicap."
The Solicitor General, on Second Reading in the Commons on 7 April 1987 (Hansard, Vol 114, Col 257) used identical language.
"(1) If, on an application by a person who has attained the age of eighteen and whose parents are not living with each other in the same household, [etc].
(4) No order shall be made under this section at a time when the parents of the applicant are living with each other in the same household."
For present purposes, the addition of the words "in the same household" seems to me wholly immaterial.
"The object … was to remove the differences in the legal positions of children. The underlying principle was that children should not suffer just because their parents had, for whatever reason, not been married to one another."
That of course was correct, so far as it went. But equally important, as we have seen, was the disavowal of any more fundamental change and the consequential policy restricting provision to adults whose parents had separated or, as the legislation expressed the concept, were not "living with each other." Indeed, as Hale J continued:
"Equally of course they should not get more. There is a long line of authority, beginning with Chamberlain v Chamberlain  1 WLR 1557, and continuing with Lilford (Lord) v Glynn  1 WLR 78, (1978) FLR Rep 427 and Kiely v Kiely  1 FLR 248, that children are entitled to provision during their dependency and for their education, but they are not entitled to a settlement beyond that, unless there are exceptional circumstances such as a disability, however rich their parents may be."
"The effect of subsections (1) and (3) must surely be that a financial provisions order may be made in favour of a child who has attained the age of 18 if the child is receiving instruction at an educational establishment. That is precisely this case, and it seems to me to follow that there is jurisdiction to hear such an application.
Two important questions, however, remain: (1) by whom can the application be made; and (2) should a financial provision order be made in the circumstances of this case.
As to (1) either parent could ask for an order against the other that financial provision be made for the child. This is the effect of section 23 of the Act of 1973 and rule 68 of the Matrimonial Causes Rules 1973. But it would be necessary for the applicant's father or mother to obtain the leave of the court under rule 68 (2). Since neither parent wishes to make such an application and since the child's right to financial provision is sanctioned by the Act a procedure must be found. The answer seems to be provided by rule 72 (2) [quoted] that is to direct that the children be separately represented on the application, either by a solicitor or by a solicitor and counsel."
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation … The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, "go with the grain of the legislation"."
"121 … If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
122 … the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect."
"36 The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
37 Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a "fundamental feature", a "cardinal" or "essential" principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as [counsel] would have me read it would not be "compatible with the underlying thrust of the legislation", nor would it "go with the grain of the legislation." On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation."
"61 They submit the argument for reading down in Re Z failed because it was clear Parliament had taken a deliberate policy decision to exclude single parents, as was demonstrated by what Munby P set out … when he detailed the course of the Bill in 2008, at the Committee stage and during its passage through Parliament. Consequently, the requirement for two applicants was a key feature of the 'pith and substance' of the legislation.
62 The situation in this case, they submit, is different. There is no evidence that Parliament has ever considered the possibility of an intended parent dying during a surrogacy pregnancy, or that such a category of person should be excluded from obtaining a parental order."
"it suffices that the facts of the case fall "within the ambit" of another substantive provision of the Convention or its Protocols."
He points also to para 22:
"In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. However, only differences in treatment based on a personal characteristic (or "status") by which persons or groups of persons are distinguishable from each other are capable of triggering the application of Article 14."
"… Mrs Kehoe's argument that the system which prevents her from playing any part in the enforcement process is incompatible with Art 6(1) fails at the first stage. This is because she has no substantive right to do this in domestic law which is capable in European Convention law of engaging the guarantees that are afforded with regard to 'civil rights and obligations' by that Article."
The Strasbourg court said the same when dismissing her claim: Kehoe v United Kingdom (Application no. 2010/06)  2 FLR 1014, para 47:
"the court would note that the issue before it is whether the applicant has access to court to obtain payment of child support owing to her, not whether she has any enforceable 'civil right' to obtain damages from the authorities for their shortcomings in that respect, in which connection it would recall that Art 6 does not impose any requirements as to the content of domestic law."
"It is no exaggeration to say that it … has been and remains his metaphorical umbilical cord to his family … The flat represents the security and continuity of relationship even when the human relations are strained and/or the family members estranged. But in addition, the flat also represents the only bulwark between [the applicant] and very real possible destitution. And as such it is also the key to his privacy and indeed his only aspect of privacy. Any move to interfere with his occupation of [the flat], or any move which has the effect of endangering his occupation – such as stopping the payment of the utilities … – is an action which directly threatens [his] private and family life; and as such is an interference which the Court as a public authority should be at pains to stop/prohibit."
"Niemietz v Germany shows that private life includes the right of a person to define the 'inner circle' in which he chooses to live his life, including in particular, as it seems to me, the right to choose those with whom he does not want to establish, develop or continue a relationship – in short the right to decide who is to be excluded from his 'inner circle'. Article 8's guarantee of respect for an individual's 'private life' therefore embraces, at least in principle, both X's right to decide to establish and develop a relationship with Y (qualified, of course, by Y's right to decide that he does not wish to establish a relationship with X) and X's right to decide not to establish or continue a relationship with Z."
"If a father and his adult daughter wish to enjoy the type of normal family relationship that the State is obliged by the Art 8 guarantees of respect for each party's private and family life not to interfere with arbitrarily, then all well and good. But if for whatever reason, good or bad, reasonable or unreasonable, or if indeed for no reason at all, the daughter does not wish to have anything to do with her father, then he cannot impose himself upon her, whether by praying in aid his Art 8 right to respect for family life or his Art 8 right to respect for that part of his private life which entitles him in principle to establish and develop relationships with other human beings. His daughter can pray in aid against him her Art 8 right to respect for that part of her private life which entitles her to decide who is to be excluded from her 'inner circle' – and in that contest, because she is a competent adult, her Art 8 rights must trump his."
The same must, of course, go if, as here, the dispute arises, as it were, the other way round.
"If she were competent there would be no question of enforcing a relationship between her and her father. He would have a right to a relationship as far as she consented to it and no further."
As I commented in Re S (para 36) this can now be explained in Convention terms. It remains good law.
i) First, he submits that to deny financial relief to a child within marriage and yet provide it to one in the context of a divorce constitutes unlawful discrimination. It is, he says, classic "birth status" discrimination based on the child's parents' marital status. He submits that the marital status and living arrangements of the child's parents are clearly irrelevant to the child's objective needs and cannot be used as the basis to deny financial relief to a child of married parents in the situation of the applicant (that is, living in a separate household to both his parents) in contrast to the child with identical needs of divorced parents. This, he says, plainly constitutes unlawful discrimination.
ii) Secondly, he complains that on the view I have taken of the legislation there is discrimination between the adult child who happens to be the payee of an existing order under the 1973 Act and the other "twin" identical child who happens not to be the payee of such an order. On this approach, he says, one of the "twins" has a claim under section 27 because of the previous order, while the other does not, "simply because of the accident of there being no previous order." This, he says, is reminiscent of the kind of immutable personal characteristic which is entirely beyond one's personal control and for which the Strasbourg court has consistently held there can be no objective justification.
"The Court also recalls that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention. Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals."
The inherent jurisdiction
"the inherent jurisdiction of the High Court can, in an appropriate case, be relied upon and utilised to provide a remedy ... the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values."
"New problems will generate new demands and produce new remedies."
"The strange state of our law is that there may be a so-called common law duty to maintain, but when one analyses what that duty is it seems effectively to come to nothing. Like so many rights, the right extends only so far as the remedy to enforce it extends. There is no longer any agency of necessity and the common law has no remedy. The remedies to enforce a duty to maintain are the statutory remedies which are variously laid down in numerous statutes … One has the statutory framework in Sch 1 to the Children Act 1989, but when one looks beyond that one finds only specific statutory provisions."
"the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent."
Having elaborated what I meant by "coercion" and "undue influence," I turned to explain what I had in mind when referring to "other disabling circumstances" (para 78(iii)):
"the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others."
I identified what I called the "common thread to all this" (para 79):
"The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent."
"I have power to make whatever orders and direct whatever inquiries are needed to ascertain, when a marriage is proposed or arranged, what SA's true wishes are and to ascertain whether or not she has been able to exercise her free will or is confined, controlled, coerced or under restraint – in short to ascertain the true state of affairs. Likewise I have power to make such protective or other orders as are best designed to ensure that any marriage really is what SA wants."
I went on (para 131):
"In the final analysis, my concern must be to enable this vulnerable young woman to exercise her right to self determination, specifically her right to marry as enshrined in Art 12 of the Convention … I emphasise the importance these courts place on the right of the individual to exercise choice in this most intimate area of decision-making. And I agree … that the court has a positive duty to assist SA to enter into what will for her be the 'right' marriage, with someone who will confirm to her, in a way she can understand, that he understands and agrees with what she wants."
I added (para 133):
"By taking this course, far from depriving SA of her right to make decisions, I am ensuring, as best I can, that she has the best possible chance of future happiness. I am taking these steps to protect, support and enhance SA's capacity to control her own life and destiny in the way she would wish."
"I do not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst "capacitous" for the purposes of the Act, are "incapacitated" by external forces – whatever they may be – outside their control from reaching a decision ... However, I reject what appears to have been the initial contention of this local authority that the inherent jurisdiction of the court may be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance ... the relevant case-law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions."
"its primary purpose is to create a situation where the person concerned can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do. That is precisely what Munby J ordered in SA."
"It is, as … the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005."
He went on (para 54):
"The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity"
He added (para 67):
"I would expressly commend the approach described by Macur J … The facilitative, rather than dictatorial, approach of the court that is described there would seem to me to be entirely on all fours with the re-establishment of the individual's autonomy of decision making in a manner which enhances, rather than breaches, their European Convention Art 8 rights."
"I do not reject the possibility that in extremely exceptional cases the inherent jurisdiction might be used for long term or permanent orders forcing the vulnerable adult not to live with the person(s) he wants to, as was the case in Meyers. However, that must be a truly exceptional case. As was contemplated by Macur J in LBL, and apparently supported by McFarlane LJ in DL at , the normal use of the inherent jurisdiction is to secure for the individual, who is subject to the alleged coercion or undue influence, a space in which their true decision making can be re-established. If the inherent jurisdiction is used beyond this then the level of interference in the individual's article 8 rights will become increasingly difficult to justify."
"the wardship court has no power to … obtain for its ward rights and privileges not generally available to children who are not wards of court."
"When any family court decides with whom the children of separated parents are to live … it must choose from the available options … the court can[not] create options where none exist … Family courts have no power to conjure up resources where none exist."
"This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity."
"… 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 even to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child."
"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."
"Section 25 does not, to use Lord Dunedin's phrase, [in Attorney General v De Keyser's Royal Hotel Ltd  AC 508] at p 526, cover "the whole ground", it is not, in contrast to the legislation being considered in B v Forsey 1988 SC (HL) 28, a comprehensive statutory scheme intended to be exhaustive. To have recourse to the inherent jurisdiction in a situation, as here, wholly outside the territorial ambit of the statute, does not, to use Lord Sumption JSC's phrase in In re B (A Child) (Reunite International Child Abduction Centre intervening)  AC 606, para 85, "cut across" the statutory scheme, nor, to use Sir John Dyson JSC's phrase in R (Child Poverty Action Group) v Secretary of State for Work and Pensions  2 AC 15, para 34, would it be "incompatible with" the statutory scheme."
"The [Family Law Reform Act 1969, as amended] is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope … In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act."
The Court of Appeal agreed (para 40):
"The Act is, of course, comprehensive in relation to cases falling within its ambit … whereas post-mortem testing is, as the judge put it 'distinctly outside the scope of the legislation'."
"The inherent jurisdiction cannot be used to simply reverse the outcome under a statutory scheme, which deals with the very situation in issue, on the basis that the court disagrees with the statutory outcome."
Postscript (28 September 2020)
"Although I have not yet been able to discuss the matter with my client, I know that he is very keen, in order that he may understand your judgment better, that I ask you formally to rule on the question of whether discrimination between (1) the severely disabled children of together-parents and (2) the severely disabled children of separated and not-together-parents is objectively and reasonably justified. Whenever you decide to hand down your judgment, I should be very grateful if you would add a passage to your draft judgement in order to address this point please."
"My client expressly and specifically instructs me to send to you his Invitation to reconsider and change your judgment prior to hand-down, in accordance with the principle enunciated in [In re L and another (Children) (Preliminary Finding: Power to Reverse)  UKSC 8,  1 WLR 634]."
This was set out in a Note, prepared by the applicant himself, running to some 15 closely spaced pages and referring to a number of new authorities. The Note asserts that "there are clear and obvious errors of law that need to be immediately corrected in order to avoid handing down a judgment that is "fundamentally wrong" and the enormous trouble and expense associated with a subsequent appeal."
"if the learned Judge maintains his view that section 3 reading down is impossible in the circumstances of this case, then he should promptly proceed to update and correct his draft judgment based on the above discussion and proceed to make the following declarations of incompatibility:
i. Paragraph 2(4) of Schedule 1 of the Children's Act 1989 is incompatible with Article 14 when read with Article 8 and/or Article 1 of Protocol 1 in that it unjustifiably discriminates against the adult disabled child based on the living arrangements/status of his/her parents and insofar that it restricts entitlement to relief based on the living status of the Applicant child's parents.ii. Section 27 MCA 1973 is incompatible with Article 14 when read with Article 8 and/or Article 1 of Protocol 1 in that it unjustifiably discriminates against the adult child of married parents in comparison with the adult child of divorced parents and/or a child who is the beneficiary of an existing section 27 MCA 1973 financial provision order and insofar that it restricts entitlement to relief based on the marital status of the Applicant's parents and/or whether the Applicant is the beneficiary of a pre-existing financial order."
i) The question as formulated is in the most general and abstract terms, and it is not the function of the court to give advisory opinions.
ii) Insofar as the question arises in relation to Article 14, I have already explained (paragraph 93 above) that I saw no need to go further into it than I had.
iii) The sending out of a judgment in draft is not an invitation to enter into an ongoing Socratic dialogue.
"the demands by Mrs Carew Pole for correction and amplification of the draft judgment went far beyond what is permissible, and amounted to blatant attempts to reargue points which I had already rejected. This practice is becoming commonplace and should be stopped in its tracks in the interests of efficiency and the conservation of the resources of the court. Suggested corrections should be confined to typographical or plain numerical errors, or to obvious mistakes of fact. Requests for amplification should be strictly confined to claimed "material omissions" within the terms of FPR PD 30A para 4.6."
In In Re I (Children) (Practice Note)  EWCA Civ 898,  1 WLR 5822,  2 FLR 887, para 40, King LJ agreed and endorsed what Mostyn J had said, provided, she added, that the term "material omission" was taken to embrace the totality of the matters included in my judgment in In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note)  EWCA Civ 1205,  1 WLR 595,  1 FLR 134, para 16:
" … it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process."
She added this important observation (para 41):
" I would merely remind practitioners that receiving a judge's draft judgment is not an "invitation to treat", nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings."
i) This is a blatant attempt to persuade me to allow re-argument on the whole of the matters already dealt with in paragraphs 61-98, explicitly on the footing that the applicant wishes to put forward new points and arguments and additional authorities. It is an attempt to do the very things denounced in clear and robust terms by both Mostyn J and King LJ. The plain fact is that the applicant seeks to reargue these points because he finds my decision unpalatable and because, with the benefit of hindsight, he seemingly does not like the way in which they were argued by his own leading counsel and imagines that he can do better.
ii) As I have already explained, whatever the position may be in relation to these points cannot affect the outcome. I remind the applicant that appeals lie against orders, not judgments, so in relation to paragraphs 61-98 the appeal which he contemplates would be misconceived, inappropriate and otiose. I repeat the point already made, that the matters sought to be canvassed by the applicant cannot, for the reasons I have already explained in paragraph 147, affect the outcome. So, an appeal in relation to these matters would serve no useful purpose.
iii) The ultimate requirement is that I deal with the case justly. From the applicant's point of view, to embark upon the further exploration of these issues can, as I have indicated, achieve nothing, whether the new arguments he wishes to deploy be right or wrong. So, I do not act unjustly to the applicant if I proceed as I have indicated. If, on the other hand, I were to proceed as he wishes, I would be acting unjustly to the respondents, significantly increasing their costs and all for nothing.
iv) The applicant's proposal that I should now make declarations of incompatibility is completely misconceived. Quite apart from the fact that this marks a complete volte face, it is elementary that the court cannot grant such a declaration without the involvement of the Crown: section 5 of the 1998 Act and FPR rule 29.5.
i) The starting point (see the well-known passage in the judgment of Butler-Sloss LJ in Gojkovic v Gojkovic (No 2)  2 FLR 233, 236) is that costs follow the event.
ii) There is no reason for displacing that starting point; quite the contrary. So, costs should follow the event.
iii) Applying the principles in Three Rivers District Council and others v The Governor & Company of the Bank of England  EWHC 816 (Comm),  5 Costs LR 714, para 25, confirmed by the Court of Appeal in Timokhina v Timokhin  EWCA Civ 1284,  1 WLR 5458, paras 56-57, this is a case where an order for costs on the indemnity basis is appropriate. "The test is not conduct attracting moral condemnation … but rather unreasonableness … Where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails." As against that, as Mr Viney fairly acknowledges, such conduct must be unreasonable "to a high degree" for 'unreasonable' in this context "does not mean merely wrong or misguided in hindsight" and "whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order": Noorani v Calver (No 2/Costs)  EWHC 592 (QB), paras 8-9. The applicant's conduct here, he says, meets those tests.
iv) There should be a summary assessment in the full amount claimed.
i) I cannot in fairness depart from the assumption that I have previously, and correctly made, that the applicant is a "vulnerable adult". This, with respect to Mr Amos, is a hopeless submission. I made a forensic assumption, to facilitate legal argument as to proper ambit of the inherent jurisdiction, that the applicant was vulnerable within the meaning of the authorities on the inherent jurisdiction. I made no finding of fact to this effect; indeed, in the order I made on 28 July 2020 the assumption was expressly stated to be "without prejudice to the respondents' case as to whether he is." Mr Amos also refers to the medical evidence filed on behalf of the applicant: the report of a consultant psychiatrist. Given the nature of the hearing before me on 12 August 2020, this has never been the subject of either cross-examination or submissions. Moreover, even if it be the fact that the applicant is vulnerable, it has never been suggested that he lacks capacity either to litigate or to manage his affairs; and the documents he has himself prepared demonstrate his intellectual abilities. Vulnerability does not confer a licence to litigate with impunity.
ii) The applicant, to all intents and purposes, has no resources at all whereas, in very stark contrast, his parents have very considerable wealth. That may be, but poverty or economic inequality is not, in my judgment, a licence to litigate with impunity.
iii) The starting point must be that it would be extremely unusual for the court to make a costs order against an adult disabled and vulnerable child with on-going dependency because of his disability, who had brought a needs based child support application to the court because he was being inadequately provided for by his parents. Mr Amos cites no authority in support of this proposition, perhaps unsurprisingly given that this application is unprecedented. Be that as it may, I am unable to accept an assertion which, in my judgment, is contrary to principle.
iv) The applicant previously acted through solicitors working under a legal aid certificate and would have continued his case on legal aid, but for the complexity of this matter which required the engagement of a leading matrimonial finance firm and counsel who do not undertake legal aid work. No adverse or immediate costs order would have been made against him had he still been in possession of a legal aid certificate. He should not now be penalised for the complexity of his case, which was clearly outside of his control. To this I would merely observe that the fact is that the applicant is not legally-aided and that, even if he were, this would not immunise him from the making of an order for costs, merely from its enforcement without further investigation and order.
v) The clear picture that comes out of the correspondence written without prejudice save as to costs is one of the applicant trying his best to mediate/conciliate and putting out numerous olive branches to his parents, whilst they consistently refuse to cooperate and/or negotiate and set unreasonable pre-conditions to any discussions taking place, which clearly goes against the spirit and intent of mediation. This, says Mr Amos, is an important factor which I can and should have regard to in deciding whether to make a costs order. This may be, but the simple fact is that, on my reading of the correspondence, the applicant was holding out for significant ongoing financial provision – and in that endeavour he has wholly failed.
vi) Although the respondents' jaundiced view is that the applicant's case was "weak, speculative and opportunistic", and they seek indemnity costs on that basis, the applicant, as Mr Amos puts it, "would clearly not have brought this case without the assistance of expert matrimonial finance solicitors and Counsel unless he thought the case had some considerable substance to it." While noting what Mr Amos says, the fact is that, absent disclosure of the privileged discussions between the applicant and his advisers, this can only be speculation.
vii) In relation to quantum, beyond asserting that the respondents have spent more in legal costs and over a shorter period than the applicant, there is no specific challenge by Mr Amos either to the work alleged to have been done, or its reasonableness, or the seniority of the fee-earners, or the level of fees being charged.
The TOLATA claim
"Now the only other thing, and I suspect the answer is a matter for after judgment, is TOLATA. I raise it because, irrespective of the outcome of the current application, I would be averse for TOLATA to be hanging around there indefinitely. It seems to me that subject to submissions in due course, the respondents are entitled to know within a reasonable amount of time whether or not the TOLATA claim will be pursued. I just put it down by way of a marker, because it is something I am likely to require to be answered so it can be incorporated in my judgment."
"Every such court [that is, "every court exercising jurisdiction in England or Wales in any civil cause or matter"] … subject to the provisions of this or any other Act, shall so exercise its jurisdiction in every cause or matter before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided."
Permission to appeal
Further postscript (29 September 2020)
"the Court's proposed ToLATA debarring order is, even contingently, with respect new. On behalf of the applicant I submit that, if the Court is really minded to impose such an order, it should by analogy with inter alia Children Act s.91(4) be subject to the filter of a future Court's leave, not absolute as proposed and without limit of time, as a matter of inter alia the Applicant's Article 6 rights."
There was not a word of explanation as to why this new point had not been raised by Mr Amos in his earlier email, as one might have thought it could and should have been. Be that as it may, I see no reason to depart from the approach spelt out in paragraphs 170-171 or to alter in any way paragraph 7 of the order as set out below – which, I must emphasise, had been sent to the parties in this form on 28 September 2020. The suggested analogy, with all respect to Mr Amos, is wholly inapt, and his reference to Article 6 (in relation to which, I note, he cites no authority) takes him nowhere. The point, to repeat, is that the applicant cannot properly continue indefinitely to 'sit on the fence' whilst at the same time maintaining the restriction. He must, as I said, 'put up or shut up.' The respondents are entitled to know, within a specified time, whether or not he is going to pursue the claim. An order in this form is Article 6 compliant. The time I have afforded him is, it will be recalled, the very time sought by the applicant, not the shorter time for which the respondents contended. An order in the form now being proposed by Mr Amos would defeat this wholly desirable, indeed necessary, objective.
3. This Order is made further to the Order herein dated 28 July 2020 in which the Court, treating the Applicant's application under the Inherent Jurisdiction as being before the Court even though not issued and adjourning generally further consideration of the unissued TOLATA claim, gave directions for a further hearing to determine jurisdiction in relation to the Applicant's claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and under the Inherent Jurisdiction on the assumption (without prejudice to the Respondents' case as to whether the Applicant is a vulnerable person) that the Applicant is a "vulnerable person" as defined in the authorities.
4. The Court's judgment resulting from the jurisdiction hearing on 12 August 2020 was formally handed down today, in anonymised form so as not to publish the names or identifying features of any of the parties, the Judge having rejected the Applicant's applications for (a) expanded explanation of the Court's decision in relation to comparator groups for the purposes of discrimination and (b) revision of the draft judgment.
It is ordered that:
5. The Applicant's applications for interim maintenance and legal costs funding orders in relation to the said claims are each hereby dismissed.
6. The Court having determined that it does not have jurisdiction in relation to the claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and that jurisdiction under the Inherent Jurisdiction cannot be exercised as the Applicant asserts, the Applicant's claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and under the Inherent Jurisdiction are hereby dismissed.
7. As regards the Applicant's unissued claim against the Respondents, under the Trusts of Land and Appointment of Trustees Act 1996, in relation to the property at … registered at HM Land Registry under Title No … and in respect of which the Applicant lodged a Restriction on 20 June 2020:
a. The Applicant shall by 4pm on 11 November 2020 (time to be of the essence) notify both the Court (by email to Sir James Munby at …) and the Respondent's solicitors (by email to … of Clintons Solicitors at …) whether or not he intends to pursue the claim.
b. If within the time specified above, or within such further time as may have been allowed in accordance with sub-paragraph c, he has given notice that he does intend to pursue the claim then the Applicant shall by 4pm on 2 December 2020, or within such further time as may have been allowed in accordance with sub-paragraph c, (time in either case to be of the essence) issue his application together with Points of Claim setting out succinctly the facts and matters he relies upon.
c. In the event that the Applicant fails within the time specified to comply with either of these directions then (unless the court has on application made by the Applicant before the expiry of the relevant time extended time):
i. The Applicant shall be debarred from pursuing any such claim; and
ii. The Restriction shall be removed (for which purpose the Respondents are to be at liberty to apply to HM Land Registry and/or to the Court).
8. The Applicant shall within 21 days pay (a) the Respondents' costs down to 12 August 2020, summarily assessed on the standard basis at £47,500 and (b) the Respondents' costs from 13 August 2020 summarily assessed on the indemnity basis at £9,925.
9. The Applicant's applications (a) for permission to appeal (b) for an extension for the time to make an application for permission to appeal and (c) for a stay of execution in relation to paragraph 8 pending appeal are dismissed."