FS v RS and JS

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Between :

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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.

The cynic will recall the words of Diplock LJ in Robson and another v Hallett [1967] 2 QB 939, 953:

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).

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.

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".

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.

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.

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

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

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 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.

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.

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.

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 light of the way the arguments had proceeded, I asked Mr Amos whether further time was being sought to develop the Convention arguments. He told me it was not. I reserved judgment.

I subsequently received two further written submissions on behalf of the applicant, the first on 14 and the second on 24 August 2020. Although forwarded by his solicitors, they had in fact been prepared by the applicant himself. The first, seemingly, recentred his case on Article 14; the second introduced a wholly new case based on Article 1 of Protocol 1. Mr Warshaw and Mr Viney replied with brief written responses on 16 and 26 August.

Section 27 of the 1973 Act is headed "Financial provision in case of neglect to maintain." Section 27(1) provides as follows:

Subsections (3) to (6) contain further provisions in relation to such an application which there is no need for me to set out. Subsections (6A) and (6B) provide as follows:

To set section 27 in context I should also refer to sections 23, 26 and 29. Section 23(1), so far as material for present purposes, provides that:

Section 26 provides so far as material that:

Section 29 provides as follows:

Paragraph 2 of Schedule 1 to the 1989 Act, headed "Orders for financial relief for persons over eighteen," provides so far as material as follows:

It will be noted that sections 27(6A) and (6B) of the 1973 Act pre-suppose a previous periodical payments order while paragraph 2(3) of Schedule 1 to the 1989 Act prevents an application where there has been a previous periodical payments order.

The problems facing the applicant are immediately apparent. On the face of it:

Mr Amos seeks to overcome these difficulties by inviting me:

Before proceeding further, it will be convenient to examine the legislative history of section 27 and of Schedule 1. It has been helpfully traced out for me by Mr Warshaw and Mr Viney in their skeleton argument.

I begin with section 27. The roots of this, as Mr Warshaw and Mr Viney show, go back at least to the nineteenth century but there is no need to go further back than the Matrimonial Proceedings and Property Act 1970. Before then, as they point out, there was neither power to make an order in relation to an adult child nor, indeed, power to make any order on the application of the husband (only the wife could apply).

As is well known, the origins of Part II of the 1973 Act, including section 27, are to be found in the epoch-making work of the Law Commission under its first Chairman, that great family lawyer Sir Leslie Scarman, which saw its fruition in the Commission's 1969 Report (Law Com No 25) Family Law: Report on Financial Provision in Matrimonial Proceedings. The very point with which I am here concerned was considered by the Commission in para 42:

Thus clause 6 of the draft Bill (Report, page 72), which became section 6 of the 1970 Act and, in due course, section 27 of the 1973 Act as originally enacted – that is, before the insertion of subsections 6A and 6B – permitted applications to be made only by a party to the marriage. In other words, Parliament expressly limited the right of application under what is now section 27 to the parties to the marriage. Only with the insertion of subsection 6A by the Domestic Proceedings and Magistrates' Courts Act 1978, followed by the insertion of subsection 6B by the Family Law Reform Act 1987, was a child enabled to apply, and even then only in very specific and very limited circumstances.

The roots of Schedule 1 to the 1989 Act are ancient, but for present purposes I can start with the Law Commission's 1982 Report (Law Com No 118), Family Law: Illegitimacy, which led to the enactment of the 1987 Act, re-enacted in this respect as Schedule 1. Amongst the Commissioners who signed the Report was another great family lawyer, Stephen Cretney. The Commission's "central recommendation" (see para 6.3) was that (para 6.2):

They went on (para 6.6):

Elaborating this, they said (para 6.30):

For present purposes, what is crucial is what followed (para 6.31):

Accordingly, clause 8 of the draft Bill attached to the Report, providing for the insertion as section 11B of the Guardianship of Minors Act 1971 of a new provision for "Orders for financial relief for persons over eighteen," included this as sections 11B(1) and 11B(4) (Report, pages 216, 218):

This crucial limitation was well understood by those promoting the Parliamentary passage of the Bill. Thus, the Lord Chancellor, on Second Reading in the Lords on 27 November 1986 (Hansard, Vol 482, Col 651), said that:

Albeit with some slight, but for present purposes immaterial, drafting alterations, the Commission's draft was carried forward as section 14 of the 1987 Act, where subsections (1) and (4) of what was now inserted as section 11D in the 1971 Act provided that:

Sections 11D(1) and 11D(4) were later incorporated by way of consolidation as paragraphs 2(1) and 2(4) of Schedule 1 to 1989 Act. With the exception of the substitution of the word "paragraph" for the word "section," paragraph 2(4) replicates section 11D(4) precisely. In paragraph 2(1) the words "and whose parents are not living with each other in the same household" have been omitted, but this has no bearing on the meaning of paragraph 2(4).

In J v C (Child: Financial Provision) [1999] 1 FLR 152, 155, Hale J said this of the Law Commission's report:

Hale J's reference to "disability" will be noted. This is not the occasion for any extended discussion of what is meant by the statutory phrase "special circumstances" as it appears in section 27(6B)(b) of the 1973 Act and paragraph 2(1)(b) of Schedule 1 to the 1989 Act, and indeed this is not something on which I have heard any submissions, but it is clear that "disability" can be and, indeed, is probably the most obvious example of, a special circumstance: see C v F (Disabled Child: Maintenance Orders) [1998] 2 FLR 1.

I return to the questions of construction.

So far as concerns section 27, there is in my judgment no legitimate process of construction by which, adopting an appropriately purposive approach though leaving aside 'reading down', it can be read as Mr Amos would have me agree. The statutory language is clear and means what it says. And if, which there is not, there was any ambiguity or other room for doubt, that would inexorably be determined against him by the Law Commission's Report. The simple fact, as Mr Warshaw and Mr Viney say, is that a child may apply for relief under section 27 only where there has already been an order in the child's favour applied for by one of the parties to the marriage. More generally, as they correctly put it, there is no free-standing jurisdiction under the 1973 Act for a child to bring a claim for maintenance against a party to a subsisting marriage.

In relation to section 27, Mr Amos referred to Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324, [2006] 1 WLR 578, [2006] 1 FLR 825, and to Villiers v Villiers [2020] UKSC 30, [2020] 3 WLR 171. But neither is in point and neither assists. He relies heavily upon Downing v Downing (Downing intervening) [1976] Fam 288, a decision of Payne J in relation to section 23(1) of the 1973 Act. In my judgment, it does not assist. The point arose in the following way. Her parents were divorced in 1966 when the intervenor was 10 years old. She was now aged 20 and at university. She had fallen out with her parents, neither of whom was prepared to make an application under section 23 to provide for the funding of the parental contribution to the applicant's LEA grant. She now sought relief against both parents under section 23.

Having set out the relevant parts of sections 23 and 29, Payne J said (at p 293):

What did Payne J have in mind when he said of the intervenor's claim that her "right to financial provision" was "sanctioned by the Act"? It can only have been, as indeed he made clear, sections 29(1) and 29(3), read in the context of and in conjunction with section 23(1). But – and this is the important point – jurisdiction under section 23(1), in contrast to section 27(1), which itself specifies who may apply for relief under the section, is conferred not, as in the case of section 27(1), because someone has made an application but rather upon the happening of a defined event. This, as Mr Warshaw and Mr Viney point out, is why section 26 is needed in relation to section 23 but has no relevance in relation to section 27. Section 23, in contrast to section 27, does not address the manner in which applications are to be made or who can apply; that is governed by section 26. Accordingly, in my judgment, sections 23, 26 and 29 throw no light upon the true meaning and effect of section 27.

Nor, with respect to Mr Amos, does FPR 2010 Rule 9.10, supplementing section 26, assist. True it is that orders made under section 27 are a type of financial remedy, but it does not follow that Rule 9.10 can affect, let alone amplify, the jurisdiction conferred by section 27. Section 27 is clear and restricts the circumstances in which a child may apply to those set out in subsections (6A) and (6B). Rule 9.10 cannot operate to extend the clear ambit of the primary legislation.

In relation to paragraph 2(4), the matter, in my judgment, is equally clear. The statutory phrase "living with each other in the same household" means what it says, nothing less and nothing more. One can test it this way. Who is, or are, the persons embraced in the words "each other" in the statutory language "living with each other"? The answer is supplied by the immediately preceding words "the parents of the applicant." So, by adding in a reference, as Mr Amos would have it, to someone else - "the applicant" - one is not construing the statutory language; one is adding words so as to change its meaning.

As Mr Warshaw and Mr Viney put it, the wording of paragraph 2(4) is explicit. There is no ambiguity. It is accepted by everyone that the respondents live in the same household. So, they say, the court has no power to make any award in the applicant's favour. That is the end of the matter. I agree.

So, with paragraph 2(4) as with section 27, the statutory language is clear and means what it says. And if, which there is not, there was any ambiguity or other room for doubt, that would again, as with section 27, inexorably be determined against the applicant by the Law Commission's Report.

Mr Amos submits that, construed in this way, both section 27 and paragraph 2(4) are inconsistent with 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, inconsistent with his rights under each of those Articles read together with Article 14. Since then, as I have mentioned, the applicant on his own initiative has added similar claims based on Article 1 of Protocol 1. Mr Amos submits that any breach of those rights can, and should, be prevented by what he says is a permissible reading down of the two provisions in accordance with section 3 of the 1998 Act, to be achieved, he submits, by inserting the words identified above. He does not seek a declaration of incompatibility in accordance with section 4 of the 1998 Act.

So, what about reading down in accordance with section 3 of the 1998 Act?

I propose in the first instance to assume in the applicant's favour that without the reading down for which he contends there will be a breach of his rights on one or other of the grounds relied on. Can I read down? In my judgment I cannot.

In relation to 'reading down', family practitioners will be familiar with the speech of Lord Nicholls of Birkenhead in In Re S (Care Order Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291, but the leading authority remains the decision of the House of Lords in the later case of Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. This explains the extremely wide function that section 3 performs

In a number of passages in his speech, Lord Rodger indicated the boundaries of what is permissible. In para 111, he said that section 3(1) gives the court no power to "change black into white" or to remove "the very core and essence" or "pith and substance" of what Parliament has enacted. In para 116 he said that it was not open to the court to depart substantially from a "cardinal principle" of the legislation. He elaborated (paras 121-122):

In relation to 'reading down,' Counsel referred me to the recent trilogy of decisions about various provisions in section 54 of the Human Fertilisation and Embryology Act 2008: In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135, [2015] Fam 186, [2015] 1 FLR 349, In re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73, [2015] 1 WLR 4993, [2017] 1 FLR 472 (together with the related judgment in In re Z (A Child) (Surrogate Father: Parental Order) (No 2) [2016] EWHC 1191 (Fam), [2017] Fam 25, [2016] 2 FLR 327) and, very recently, Re X, Y v Z [2020] EWFC 39. Of these, the two most important decisions for present purposes are In re Z and Re X, Y v Z.

In In re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73, [2015] 1 WLR 4993, [2017] 1 FLR 472, I declined to read down the relevant provision. Explaining why it was simply not possible to do so, I said (paras 36-37):

In contrast, in Re X, Y v Z [2020] EWFC 39 Theis J was able to read down. She explained the essential distinction between In re Z and Re X, Y v Z when summarising the argument of counsel, which in the event she accepted:

I have no difficulty at all with Theis J's decision in Re X, Y v Z which was, in my judgment, if I may say so, clearly correct and is entirely consistent with my decision in In re Z. There is nothing in Re X, Y v Z to cast any doubt on either the outcome or the reasoning in In re Z. The usefulness of the two decisions, as it happens on provisions in the same statute where the outcomes differed, is that they neatly illustrate the operation of the guiding principles and the kind of differences which in the one case will drive the court to find that 'reading down' is impossible while in the other will enable the court to find that reading down is permissible.

Mr Amos points out that the relevant statutes and the Law Commission reports are elderly. So they are – at least in terms of a family law perspective – but that, as I read the authorities, does not affect the principles governing 'reading down.' In my judgment it is quite impossible to read down either section 27(1) or paragraph 2(4) in the way suggested by Mr Amos. Mutatis mutandis, the reasons are the same in both cases.

In each case it is clear that there was a very precise Parliamentary purpose or objective: in the case of section 27 that a child (particularly an adult child) should not be able to take his parents to court to obtain finance, and that accordingly applications could be made only by a party to the marriage; in the case of paragraph 2(4), that the legislation was to remove discrimination against the illegitimate but no more – any more fundamental change was explicitly disavowed and the policy explicitly adopted in consequence restricted provision to adults whose parents had separated or, as the legislation expressed the concept, were not "living with each other."

In each case, as Mr Warshaw and Mr Viney correctly submit, what Mr Amos and the applicant contend for is flatly contrary to the scheme clearly laid down by Parliament and contradicts the will of Parliament. I agree. I make clear, lest it be thought I have overlooked the point, that nothing turns on the fact that Parliament has subsequently amended section 27 by inserting subsections (6A) and (6B). These are very narrow and very focused provisions which, evidently as a matter of policy, limit a child's right to apply to cases where there has already been an order in the child's favour applied for by one of the parties to the marriage.

In the circumstances it would be fundamentally wrong and inconsistent with principle to read the proposed language into either statute. Reverting to the language of the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, both in relation to section 27 and in relation to paragraph 2(4) to do as Mr Amos would have me do would be to fly in the face of a "fundamental feature", a "cardinal" or "essential" principle of the legislation. Putting the same point the other way round, 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. Mr Amos submits that "grain" of Schedule 1, as it now is, is the illegitimacy point, and nothing else. For reasons which will be apparent I do not agree.

It is therefore not necessary for me to deal with the contention that, construed in the way in which I have construed them, both section 27 and paragraph 2(4) are inconsistent with the applicant's rights under Article 2, Article 6, Article 8 and Article 14 of the Convention and Article 1 of Protocol 1. If Mr Amos and the applicant are right in their contentions, the applicant's only remedy in the circumstances is a declaration of incompatibility under section 4, and that he has not sought. Nevertheless, as I have heard much argument on the point, it is right that I deal with it. I have to say that nothing I have yet heard begins to persuade me that the applicant has any case.

Mr Amos correctly describes the Convention as a living and organic instrument whose interpretation is never static; rather, as he says, its interpretation and application must always move with the times. He accepts that Article 14 is not freestanding and that it requires to be engaged in conjunction with another Article. But, as he correctly submits, this does not require that there be a breach of the other Article in question.

He points to Deaconu v Romania (Application no. 66299/12) (2019), para 21:

Mr Warshaw and Mr Viney do not dispute any of this. So far, so good. But how does Mr Amos seek to make good his case?

Article 2: Mr Amos cites no authority. His case, as set out in his skeleton argument, is that the course on which the applicant's parents embarked in October 2019 threatens and infringes the applicant's right to life for it is, he submits, "in both its intent and its effect, pretty obviously/deliberately one of 'starving' him into submission, not just metaphorically in intent but also literally in effect." That intent and effect, he submits is "particularly aggravated" by the fact, he says, that, on any view, the applicant must properly be viewed as a vulnerable adult, bearing in mind that the applicant is "(a) very ill; (b) a danger to himself in terms of inter alia neglect; and (c) wholly unlikely to be able to get, far less maintain, any employment position at all, still less one commensurate with either his high intellect or the level of his education and educational attainment." Article 2 is engaged, he says, on the basis that, to apply the legislation in the restrictive way contended for by the respondents, would, or might well, where maximum state allowances represent only a small fraction of a severely disabled child's true and reasonable needs, result in a very substantial and serious risk to a/this disabled child's life.

Mr Warshaw and Mr Viney express disappointment that such a grave and serious allegation is being deployed so lightly and in such an unfocused manner. Be that as it may, their short, and in my judgment irrefutable, point is that for Article 2 to be engaged the bar is high, and much higher than can here possibly be made out: they refer to cases such as Osman v UK (Case 87/1997/871/1083) [1999] 1 FLR 193, Venables v News Group Newspapers Ltd and others, Thompson v News Group Newspapers Ltd and others [2001] Fam 430 and Van Colle v Chief Constable of Hertfordshire Police (Secretary of State for the Home Department and others intervening), Smith v Chief Constable of Sussex Police (Secretary of State for the Home Department and others intervening) [2008] UKHL 50, [2009] 1 AC 225, as showing that what must be established is a "real and immediate risk" or a "specific and serious" threat to life. There is here, as they correctly submit, no such risk or threat to the applicant's life, and any suggestion otherwise is risible. On the applicant's own case as set out above (which they do not accept) it is quite impossible, they say, for the facts relied upon to engage let alone breach Article 2. I agree.

Article 6: Mr Amos submits that if the respondents are correct the applicant not only has no remedy but also no means of seeking a remedy in his assumed situation. He prays in aid the fundamental right of access to justice and points to cases such as R (Unison) v Lord Chancellor [2017] UKSC 51, [2017] ICR 1037. That case, with great respect, is simply not in point.

Much more to the point, Mr Warshaw and Mr Viney submit, is R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42, where the applicant mother was seeking child support from the respondent father. The mother argued that the provisions of the Child Support Act 1991, which purported to deny

That is fatal to the applicant's claim under Article 6. As Mr Warshaw and Mr Viney correctly submit, nothing within the Convention requires contracting states to legislate for specific categories of claim, for example, as here, the maintenance of adult children. The applicant has made an application to court. He is appearing before the court and is represented by leading counsel and expert matrimonial solicitors. He makes no complaint about the fairness of the proceedings. He takes no issue with the time it has taken for his application to be heard; in fact, he expresses thanks for the speed with which the case is being heard. He takes no issue with the impartiality and independence of the tribunal; in fact, he expresses great admiration for the court. In my judgment it is quite impossible for the facts relied upon to engage Article 6 let alone to breach it.

Article 8: Again, Mr Amos cites no authority. His argument is that the applicant has lived in the flat for some 20 years. He says (I quote his skeleton argument):

He submits that Article 8 is engaged on the basis that the 1973 Act and 1989 Act both provide positive financial relief measures to assist one's children and family.

Mr Warshaw and Mr Viney are briskly dismissive, saying that the points made in the passage set out above are completely irrelevant and pointing out that not a single authority is produced in support of the proposition that such facts constitute an engagement of Article 8 let alone a breach. They also point out that there is a disconnect between the remedies the applicant seeks and the facts relied on in support of the allegation that Article 8 is engaged. His claim for periodical payments and/or a lump sum will not address his occupation of this property (the factual basis of his allegation that Article 8 has been breached), for there is no power under either section 27 or Schedule 1 to make a transfer of property order. I agree.

If authority is required, then reference can usefully be made to the discussion in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, paras 31-36, of Article 8 and of Niemietz v Germany (1993) 16 EHRR 97, para 29. To this, when I brought it to his attention, Mr Amos had no effective answer. Two passages make the position clear. First, para 35, where I said:

I went on (para 37):

The position at common law had previously been set out by Butler-Sloss LJ in Re D-R (Adult: Contact) [1999] 1 FLR 1161, 1165, That was a case where the adult was under disability but, as Butler-Sloss LJ made clear:

The applicant, in my judgment, cannot bring himself within Article 8.

Protocol 1, Article 1: In his written submissions of 24 August 2020, the applicant seeks to pray in aid JM v United Kingdom (Application no. 37060/06) (2008) in support of the contention that child maintenance comes within the ambit of Article 1 of Protocol No 1, which he can therefore rely upon. His case is, with respect, fundamentally, misconceived.

Article 1 of Protocol No 1 protects a person's possessions. The applicant in JM v United Kingdom was the payer of maintenance. In that case, Article 1 of Protocol No 1 was engaged because the state (or ex-partner, it makes no difference for this analysis) was, through the CSA, depriving her of her 'possessions'. In the present case, the actions he seeks to bring do not deprive the applicant of his 'possessions'. He has no Article 1 Protocol 1 right to child maintenance. He is the payee, not the payer. The respondents, in contrast, may be able to pray in aid Article 1 of Protocol 1, for any order that they pay child maintenance to the applicant is, as in JM v United Kingdom, an interference with their peaceful enjoyment of those possessions. But this is nothing to the point, for the fact that the respondents' Article 1 rights might be engaged is simply not relevant to the applicant's case. He cannot rely upon Article 1 of Protocol No 1 in support of his application.

Article 14: For all these reasons, none of Articles 2, 6, 8 and Protocol 1, Article 1, is engaged and the applicant's various claims do not fall within the ambit of any of them. We therefore never get to Article 14. But I ought nonetheless to deal with it.

Both generally, and specifically in relation to Article 14, Mr Amos is clear as to the discrimination he seeks to rely upon. It is, as he puts it, the difference in treatment between a person who is the child of parents who are still living together and a person who is the child of parents who are living separately from one another. He points to the editorial comment in the 2020 Red Book, para 2.233[1], p 488, that "the adult child whose parents are living together and for no valid reason are refusing to support him or her through university is in a markedly worse situation than an adult child whose parents have separated (emphasis added)." He submits that on this basis the law is fundamentally unfair and obviously discriminatory in the sense that it treats differently, and, he says, with no good reason, two identical people in otherwise identical situations. The factor of the parents' own living arrangements is, he submits, patently entirely irrelevant from the perspective of the adult disabled child and his needs.

Somewhat shifting the emphasis, he submits that, in the present case, no objective or legitimate reason whatsoever exists for the differential treatment of adult disabled children with identical requirements living in a separate household from their parents, let alone the "weighty reasons" required under the leading Strasbourg and domestic authorities. Equally, he adds, "weighty reasons" are required to justify discrimination on grounds of disability, in relation to which he cites JD and A v United Kingdom (Applications nos. 32949/17 and 34614/17) [2020] HLR 5. It will be seen that at this point in the argument Mr Amos somewhat shifts the focus in his references to the applicant being disabled – not, it will be noticed, something reflected at all in his proposed constructions of either section 27 or paragraph 2(4).

But his "core" submission, as he makes clear in his skeleton argument in reply, is that the (disabled) adult child of together-parents who are living together with each other, but in a separate household from their child, is self-evidently just as deserving of financial relief from their parents as the identical (disabled) adult child of separated parents who are living in households separate from each other, whether or not also separate from the adult child. To argue otherwise is, he says, to set up an unjustifiable, as well as unnecessary, discrimination.

Revealingly, he submits that including the status of the parental relationship, that is, whether the parents are living together or separate, as the focus of paragraph 2(4), brings "the situation perilously, and unnecessarily, close to the accident of birthstatus" which it was the central purpose of the 1987 Act to abolish; and also, he says, perilously close to marital status, which is not only irrelevant for these purposes but also clearly acknowledged as an improper basis of discrimination in both Strasbourg and domestic case law.

In the final analysis, he submits, the case comes back to rest on the proposition that it cannot be right or even just that children of separated parents are treated better than children of together-parents.

Thus far in his submissions Mr Amos has focused on paragraph 2(4). He elaborates the argument in relation to section 27, making two key points:

So, in sum, it is, says Mr Amos, discriminatory under Article 14 to allow adult (disabled) children of divorced parents (the 1973 Act) and of separated parents (the 1989 Act) access to relief, but not the children of married and/or together parents, especially when the adult (disabled) child is, as here, living separately from the

Mr Warshaw and Mr Viney submit that the discrimination the applicant seeks to rely upon is imprecise and that it is imprecise because his claim is misconceived. That it is indeed misconceived I entirely agree. There are three reasons:

First, the suggested analogy with "birth status" is wholly false. The marital status of the parents at the date of birth (I ignore the subtleties deriving from the doctrine of legitimation per subsequens matrimonium) directly affects, indeed determines, the status of their child as legitimate or illegitimate. That status of the child, although derived from the status of the parents, is a status of the child recognised as such in law. It may be that when the parents have died the child also attains the status of an orphan. But the status of the parents as either divorced and/or separated (which is what we are concerned with here) has, in general terms, no effect in law on the status of their child. As Mr Warshaw and Mr Viney put it, legitimacy is a question of both birth and status. The distinction between adult children whose parents are cohabiting and those who are separated is neither. It has nothing to do with the birth of the adult child or the status of the adult child. Likewise, the distinction between adult children whose parents are divorced and those who are not. This is why the reliance Mr Amos places on Inze v Austria (Application no. 8695/79) (1987), Pla and Puncernau v Andorra (Application no. 69498/01) (2004), Fabris v France (Application no. 16574/08) (2013), and Wolter and Sarfert v Germany (Applications nos. 59752/13 and 66277/13) (2017), is misplaced; for, as Mr Warshaw and Mr Viney point out, these are all cases of discrimination on the basis of illegitimacy.

Secondly, in a case such as this the question in relation to Article 14 concerns the status of the child, not the status of the parents. The issue is, therefore, whether the applicant can bring himself within the relevant words of Article 14: "without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." The asserted status here is being the child of parents who are either divorced (or not) and/or separated (or not). That is not a status included within the enumerated list, nor, in my judgment, is it an "other status" within the meaning of Article 14. It is, to repeat, a matter of status as between the parents which has no impact in law on the status of the child. Mr Amos has been unable to point me to any authority to the contrary; his failure is unsurprising. I am not aware of any authority suggesting that whether an applicant's parents are cohabiting or not (or divorced or not) impacts upon the 'status' of the applicant.

Thirdly, as Mr Warshaw and Mr Viney point out, the wording which the applicant would have me read into paragraph 2(4) does not remedy the alleged discrimination. What it addresses is this applicant's specific situation as an adult child who lives separately from cohabiting parents. Reading paragraph 2(4) in this way would leave a lacuna because the adult child of cohabiting parents who remains in the same household as the parents would, on the applicant's analysis be unable to seek the remedy he now seeks. In other words, there is a fundamental disconnect between the way in which Mr Amos invites me to read paragraph 2(4) and the discrimination upon which he relies, that is, the inability of an adult child whether or not he is living with them to bring a claim against cohabiting parents. Mutatis mutandis there is likewise a fundamental disconnect between the way in which Mr Amos invites me to read section 27 and the discrimination upon which he relies.

Mr Warshaw and Mr Viney also submit that in any event, and even if Article 14 is in some way engaged, any distinction in status (if there is any) is legitimate. They point to JD and A v United Kingdom (Application nos. 32949/17 and 34614/17) [2020] HLR 5, para 81, where the Strasbourg court made clear that contracting states are free to treat different categories of people in different ways:

They submit that the restrictions contained within Schedule 1 of the 1989 Act and section 27 of the 1973 Act on claims by adult children against cohabiting parents are both legitimate and proportionate. The legislative purpose of both statutes, they say, is to regulate financial provision on relationship breakdown or where there has been domestic instability. It is, they submit, entirely legitimate and proportionate for the state not to intervene where a cohabiting relationship subsists. The essence of the applicant's case, they say, is that any adult child who is in or contemplating higher education or where there are special circumstances should be able to bring a claim for maintenance against their own parents, whether cohabiting or not. This was never ever envisaged by the drafters of the legislation or by Parliament; in fact, as they point out, it was expressly disavowed. And that statutory scheme, they submit, is both legitimate and proportionate.

I need not follow Mr Warshaw and Mr Viney into this further thicket, save to say that I can well see the force of what they are saying.

In his written submissions of 14 August 2020, the applicant sought, as I have said, to re-centre his case on Article 14, seeking to pray in aid in this connection Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250. That was a case where the asserted ground of discrimination under Article 14 was disability: the Supreme Court held that there was discrimination where the relevant regulations distinguished between a severely disabled child who required more than 84 days of care and a severely disabled child who required less than 84 days of care. According to the applicant "This case can be seen to have an exact parallel with the present case in which the two relevant comparators in relation to Schedule 1 are (1) severely disabled children of parents who live together and (2) severely disabled children of parents who are separated and who don't live together."

Mr Warshaw and Mr Viney submit that Mathieson is irrelevant and has no bearing on the present case, where, they say, there can be no discrimination because none of the categories of Article 14 is relevant: the cohabitation of the applicant's parents (Schedule 1) or the requirement to be a party to the marriage (for an application under

I agree. Moreover, there is a fundamental disconnect between this line of argument and both (a) the way in which Mr Amos puts the case under Article 14 and, more importantly, (b) the way in which Mr Amos (and, I assume, the applicant) invite me to read paragraph 2(4) and section 27 and the discrimination upon which the applicant (in distinction to Mr Amos) relies.

Mr Amos referred me to other cases: Weller v Hungary (Application no. 44399/05) (2009), Glor v Switzerland (Application no. 13444/04) (2009), In re McLaughlin

For all these reasons, the applicant fails to make good his case based on the Convention.

I turn therefore to the inherent jurisdiction.

Before going any further a few general remarks about the inherent jurisdiction may not be out of place. Counsel remind me of Lord Donaldson of Lymington MR's famous description (In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 13) of the common law – here, the inherent jurisdiction – as the "great safety net which lies behind all statute law, and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole." But the choice of metaphor is revealing: the inherent jurisdiction is a safety net, not a springboard. And Lord Donaldson would have been the first to acknowledge that the inherent jurisdiction, whatever its theoretical reach, is, in settled practice, recognised as being subject to limitations on what the court can and should do. For an example, see his observations in In re R (A Minor) (Wardship: Criminal Proceedings) [1991] Fam 56.

I recognise of course that, as Singer J said in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, relief can be granted in what he acknowledged was a "novel" case. As he said (para [8]):

I emphatically agree. Striking examples are its recent use in cases of forced marriage, female genital mutilation and, more recently radicalisation. So, as I said in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 45:

But novelty alone does not demand a remedy. Any development of the inherent jurisdiction must be principled and determined by more than the length of the Chancellor's foot (John Selden, Table Talk, 1689; Selden Society, 1927).

Moreover, human nature being what it is, many seemingly new problems are far from new. Wardship judges have been familiar down the ages with the impressionable youngster embarking upon some unsuitable relationship or dangerous cause. 'Hot pursuit' in the days of Lord Eldon LC conjures up the image of the coach and four labouring up Shap Fell taking the young heiress and her unsuitable paramour to the Scottish border and the blacksmith's forge at Gretna Green. Today it more probably conjures up the image of the potential teenage jihadist travelling by aeroplane to the Turkish border en route to join so-called ISIS in war-torn Syria. But we have to remember that the romantic or idealistic call to participate in foreign wars is nothing new: one has only to think of John Cornford who went as a young man, but in law still a minor (technically, in the language of the era, an infant), to fight in the British Battalion of the International Brigades in the Spanish Civil War, where he was killed in action the day after his 21st birthday. And, to bring this closer to home, financial disputes between parents and their financially dependent adult children have been with us for ever. Recall that familiar figure in Victorian and Edwardian culture, the remittance man. Yet it is a striking fact that, notwithstanding the prevalence of these disputes, there is no trace of them ever having been litigated. The law – that is, the common law and equity – never entertained a cause of action or claim between a financially dependent adult child and his parents, and this whether the child was illegitimate or legitimate, nor was there any process by which a legitimate adult child could have made such a claim.

That the branch of the inherent jurisdiction upon which Mr Amos relies exists is clearly established: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, approved by the Court of Appeal in DL v A Local Authority [2012] EWCA Civ 253, [2013] 2 FLR 511. So too that it applies to those who, while they have capacity, are vulnerable, as that expression is described, even if not defined, in the authorities. The question in the present case is as to the ambit and extent of the jurisdiction, specifically as to the type of relief that can be granted.

Mr Warshaw and Mr Viney are scornful of Mr Amos in his attempt to invoke the inherent jurisdiction. They point out that, insofar as the protective jurisdiction with which I am here concerned is akin to the parens patriae or wardship jurisdictions, neither of those jurisdictions includes powers to award maintenance. Indeed, they say, the applicant cannot point to a single authority in which this or any other facet of the inherent jurisdiction has been invoked to require a party to pay maintenance. This, they submit, is unsurprising. Maintenance, they say, is essentially a creature of statute, because although at common law a husband was obliged to maintain his wife and, by extension, his minor children, that duty had no corresponding remedy when breached, save through the agency of necessity, by which a deserted wife could pledge her husband's credit. I agree. Long before the modern law emerged, a deserted mistress could claim maintenance for her illegitimate children under various statutes. And a wife, before 1858, could obtain orders for herself and her children from the ecclesiastical courts under canon law if she petitioned, for example, for a divorce a mensa et thoro (since 1858 the remedies available to her in, successively, the new Court for Divorce and Matrimonial Causes, created by the Matrimonial Causes Act

Mr Warshaw and Mr Viney refer to what Ward J said in Re C (A Minor) (Contribution Notice) [1994] 1 FLR 111, 116, in connection with maintenance of a child:

They point out that the agency of necessity was abrogated by section 41 of the 1970 Act and that the common law duty to maintain has been abolished by section 198 of the Equality Act 2010 (astonishingly, not yet in force). Thus, they submit, there is no longer a common law duty for a husband to maintain his wife and his minor children, while there has never been a common law duty to maintain adult children.

Mr Amos submits that the court is faced with a situation in which a vulnerable person has acquired a very significant level of dependency over a long period of very many years, that dependency having been established by the actions – often, but not always, generous – of his parents. If they are to be free to withdraw their support, notwithstanding the level, depth, and intensity of his dependency on them, the reality, he says, is that the applicant will face the prospect of not only penury and degradation but also squalor and abuse. If he cannot claim under either section 27 or Schedule 1, then, says Mr Amos, it is only just and fair that the inherent jurisdiction should fill the legislative gap since, he submits, the adult disabled child of parents living together but in a separate household from their child is self-evidently just as deserving of financial relief as the identical children of parents living in households separate from each other. It is, he says, unreasoned and illogical to make this arbitrary distinction, and both are equally deserving of access to justice, of the court's protection, and of financial relief.

In relation to the inherent jurisdiction, his "central proposition" is that the inherent jurisdiction, provided it exists and has not been superseded by statute, is unlimited. The applicant is a vulnerable adult who, without the court's protective help, will be immediately at risk of harm. In these circumstances, he says, the applicant throws himself on the court's protective function. He urges the court to say that the applicant is deserving of succour and that the court has power to order it, not least given that the court traditionally exercises a "paternal" or "parental" jurisdiction – doing what it concludes that a good parent should and would do – especially where, as here, what is

In my judgment the inherent jurisdiction is not available to assist the applicant in the way suggested by Mr Amos.

Three separate arguments, separately and cumulatively, drive me without reluctance to this conclusion.

The first is that such a claim lies far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant.

It is important at the outset to appreciate that, (1) precisely because they do not lack capacity, those subject to this branch of the inherent jurisdiction are fully autonomous adults; and (2) that, fundamentally, the jurisdiction exists to protect and to facilitate their exercise of that autonomy.

It is convenient to go first to my judgment in Re SA, para 77:

It is useful to explain what I was doing in the particular case. I said (para 126):

The same concept was picked up by Macur J in an important passage in LBL v RYJ and VJ [2010] EWHC 2665 (COP), [2011] 1 FLR 1279, para 62:

Likewise, Theis J at first instance in A Local Authority v DL & Ors [2011] EWHC 1022 (Fam), (2011) 14 CCLR 441, para 53(7), said of the jurisdiction:

The Court of Appeal specifically approved all this. McFarlane LJ, with whose judgment Davis and Maurice Kay LJJ agreed, said this of the jurisdiction (para 53):

There is nothing in any of this which begins to support the proposition that this branch of the inherent jurisdiction can be used as Mr Amos would have me accept. Quite the contrary.

Recently, it has been suggested, by Hayden J in Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam), [2019] COPLR 202, and by Lieven J in London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam) (though contrast the approach of Cobb J in Redcar and Cleveland Borough Council v PR and Others [2019] EWHC 2305, [2020] 1 FLR 827, and in Wakefield Metropolitan District Council and Another v DN and Another [2019] EWHC 2306 (Fam)), that the jurisdiction may extend further. As Lieven J said in the latter case (para 63):

There is no need for me to consider whether this is correct, though I have to confess to some doubt. But even if correct, it must, not least for the reasons articulated by Lieven J, mark the extremity of what can be done in exercise of the jurisdiction; moreover, even this somewhat wider view does not begin to support Mr Amos.

The second reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle that the inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services.

The key point was stated by Millett LJ in In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271:

It follows as a matter of principle that neither the wardship judge exercising the inherent jurisdiction in relation to a child nor a judge exercising the inherent jurisdiction in relation to an adult can require a third party to provide facilities or services, or to put their hand in their pocket, if they are unwilling to do so: for an illustration see Re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court).

In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, Baroness Hale of Richmond put it this way (paras 30, 38):

Exactly the same principle applies in relation to an incapacitated adult and to the jurisdiction of the Court of Protection. As Baroness Hale of Richmond DPSC said in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591, para 18:

She returned to the same theme in N v A Clinical Commissioning Group and others [2017] UKSC 22, [2017] AC 549, para 35:

Fastening upon the expression "available options", Mr Amos says that his parents, who are enormously wealthy, have plenty available for the applicant. Maybe, but "available" here has the connotation of 'willing to make available', and that, it seems, they are not.

Mr Amos submits that the respondents, being his parents, are not for this purpose to be treated as third parties vis-à-vis the applicant. He invites my attention to what he calls the family dynamic and reality: the respondents are the parents of an adult child who is (assumed to be) a vulnerable adult with (assumed) special needs; and they are being asked "to put their hands in their pockets", not for some new or unrelated liability, but rather for the results, and the continuation, of the dependency which they themselves have inculcated, or fed, or simply serviced, generously, for over 20 years. The legal nexus is in truth, he says, one of the closest imaginable, namely between

The short answer to this is that provided in paragraphs 104 and 106 above and in the passages I have set out, in paragraphs 107 and 128 above, from the judgments of Ward J in Re C (A Minor) (Contribution Notice) [1994] 1 FLR 111 and Baroness Hale in N v A Clinical Commissioning Group and others [2017] UKSC 22, [2017] AC 549.

The third reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle which I summarised in In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, where I referred (para 37) to:

The question in that case was whether the inherent jurisdiction could be exercised to put a child in secure accommodation in a case which fell outside the provisions of section 25 of the Children Act 1989. Having gone through the authorities, I said (para 45):

Mr Amos referred me to Anderson v Spencer [2018] EWCA Civ 100, [2019] Fam 66.

The point was put very pithily by Lieven J in JK v A Local Health Board [2019] EWHC 67 (Fam), (2019) 171 BMLR 184, para 57:

Of course, on one view this all depends on the degree of generality or specificity with which one chooses to define or describe the ground or scope or ambit of the relevant statutory scheme. In DL there was a bright-line distinction between incapacity and capacity, the relevant legislation dealing exclusively with the former. In In Re X there was similarly a bright-line distinction between secure accommodation in England and secure accommodation in Scotland, the relevant legislation dealing exclusively with the former. In Anderson v Spencer there was a bright-line distinction between testing inter vivos and testing post mortem, the relevant legislation dealing exclusively with the former.

The legislation with which I am here concerned is rather different. Between them, the 1973 Act and the 1989 Act provide a comprehensive statutory scheme dealing, along with much else, with the circumstances in which a child, including, as here, an adult child, can make a financial claim against a living parent (I put the point this way to make clear that I have not overlooked section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975). More specifically, the legislation, in its general reach, applies to the applicant, as to every adult child, and is comprehensive in relation to cases falling within its ambit. Furthermore, as Mr Warshaw and Mr Viney point out, the legislation deals explicitly with the very claims the applicant seeks to make; indeed, in the case of the 1989 Act it explicitly prohibits the claim he seeks to pursue. There is accordingly, in my judgment, no scope for recourse to the inherent jurisdiction. To exercise the inherent jurisdiction in these circumstances would simply be to do what Lieven J has rightly said is impermissible.

For all these reasons it is quite clear, in my judgment, that the inherent jurisdiction is not available to the applicant.

So far as concerns the three matters currently before me, I am, for all these reasons, satisfied that the applicant has no case. His applications should be summarily dismissed. The court has no jurisdiction to give him the relief he seeks under the 1973 Act or the 1989 Act and the inherent jurisdiction cannot be exercised as he would wish.

I should add two things:

The first is that the TOLATA claim raises issues entirely different from those considered in this judgment. Nothing I have said (or not said) here should be thought to throw any light on whether or not the applicant has a proprietary claim to the flat.

Secondly, I have not had to consider, and have heard no argument on, the ambit of section 27(6B)(a) of the 1973 Act and the corresponding provision in paragraph 2(1)(a) of Schedule 1 to the 1989 Act, nor on how the court should exercise its powers in a case where, unlike the present case, it does have jurisdiction under one or the other of these provisions. Conventional wisdom and practice are that, in an appropriate case, the court will make orders in relation to secondary and tertiary education, the latter extending to one first degree course, but no further. Whether in addition an order will be made to cover a post-graduate professional qualification – qualifying, for example, to be called to the Bar or admitted as a solicitor – is, it would seem, an open question amongst practitioners, and neither I nor the very experienced counsel before me is aware of any case in point, reported or not. I would not want to be thought necessarily opposed to the making of such an order in an appropriate case, though I would require to be persuaded that it was right as a matter of principle. But it will be appreciated that the applicant's contention here goes much further, since he already has a first degree, is qualified as a solicitor and, indeed, has further qualifications. I make the point because I would not want it to be thought that by saying nothing I am somehow accepting that in this respect the law and practice extends anything like as far as the applicant asserts the court should go. On the contrary, conventional wisdom and practice would suggest that these provisions were never intended to be used and cannot be used to fund the education of a perpetual student.

The judgment as it appears above is, with only a small number of trivial corrections, in the form in which it was sent to the parties in draft by email in the usual way on 8 September 2020. In that email I asked to be sent submissions on costs and a draft order, agreed if possible. Later the same day I confirmed that the draft judgment could be shown to the lay clients. By the end of the same day, counsel responded with their proposed corrections. The following day, 9 September 2020 I informed the parties, by email, that I would be ready to hand down the judgment on 11 September 2020 "but prefer not to until I have a draft order and submissions on costs." By email on 10

It will be recalled (paragraphs 14, 15 above) that at the end of the hearing on 12 August 2020 I had asked Mr Amos whether further time was being sought to develop the Convention arguments – he told me it was not. Notwithstanding that, I subsequently received, on 14 and on 24 August 2020, two further written submissions prepared by the applicant himself. Unsurprisingly, Mr Warshaw and Mr Viney complained that each of these had caused the respondents to incur further, not insubstantial, costs. On 25 August 2020 I circulated an email to the parties, asking the applicant’s solicitors to confirm that it was not proposed to send me any more such documents (I explained that I needed to know because I was at the very point in preparing the judgment where I was about to deal with these issues). They replied the following day: "it is not proposed to send you any more such documents." On the basis of that assurance, I completed the judgment in draft and circulated it, as I have said, on 8 September 2020.

In his email of 10 September 2020, Mr Amos said this:

On 15 September 2020 I received a further email from Mr Amos in which, amidst much else, he said this:

It is important to appreciate that this latest submission is confined to the applicant’s contentions in relation to his rights under Article 2, Article 6 and Article 8 of the Convention and Article 1 of Protocol 1, read together with Article 14; that is, and I emphasise the point, the matters, and only the matters, dealt with in paragraphs 61-98 above. I emphasise the point for this reason. As will be appreciated, the structure I had adopted in my judgment was to deal first with the question of 'reading down' (paragraphs 48-60) before dealing with the underlying issue of incompatibility (paragraphs 61-98). I had emphasised (paragraph 50) that I approached the issue of 'reading down' by assuming in the applicant's favour that without the reading down for which he contended there would be a breach of his rights on one or other of the grounds relied on under the Convention. So, as I explained in paragraph 61, given my decision in relation to 'reading down', my decision on the issues dealt with in paragraphs 61-98 did not and could not, nor can it now, affect the outcome.

The applicant ventures the opinion that it is "highly likely that if this case had been brought in the Administrative Court, a public law Judge would have either read down the relevant statutes" – a topic on which the Note otherwise makes no submissions whatever – "or at the very least made declarations of incompatibility." He continues:

Upon receiving this document I circulated an email on 16 September 2020 asking Mr Warshaw and Mr Viney whether it was their submission that I should embark upon a detailed analysis of these new points (in which case, I said, I would need their submissions in response), or that I should not (in which case, I said, I would need their submissions as to why I should not). Their response the same day was that I should not embark upon a detailed analysis, followed shortly after by their written submissions in respect of that proposition. They complain that the applicant seeks to reopen the entire case and reconsider every single point – which is correct so far as concerns paragraphs 61-98 of the judgment. It is, they say, a fundamental abuse of process, a waste of court resources and puts the respondents to yet further costs. So far as concerns the contention that I should grant a declaration of incompatibility, this, they say, is a volte face, Mr Amos having, as I have already noted, specifically disclaimed any such application.

The applicant’s response to this arrived on 21 September 2020. The key points he made were that (i) he was not merely rearticulating the case as previously deployed on his behalf by Mr Amos – he was putting forward new points and arguments and additional authorities; (ii) those arguments demonstrated I was wrong in law; and (iii) correction of the judgment as he was proposing was appropriate to "obviate the need for a time consuming, expensive and unnecessary appeal." Later the same day, though after hours, I notified the parties by email that I had decided not to answer the question posed by Mr Amos in his email of 10 September and not to alter my judgment as requested by the applicant. I now give my reasons.

I do not criticise Mr Amos for raising the matters referred to in his emails of 10 and 15 September 2020, because I suspect he has an unusually difficult, demanding and pertinacious lay client to deal with. But I absolutely decline to go down the routes he – or rather his lay client – would have me traverse.

In relation to the question posed in his email of 10 September 2020, I decline to rule on it:

In relation to the other matters raised by the applicant, it is remarkable that in his Note of 21 September 2020 he does not engage at all with the authorities to which Mr Warshaw and Mr Viney had appropriately directed attention in their submissions of 16 September 2020. To these I must now turn.

A most valuable exegesis of In re L and the subsequent authorities is to be found in the judgment of Mostyn J in AR v ML [2019] EWFC 56, [2020] 1 FLR 523. For present purposes, however, it suffices to note that the overriding objective in exercise of the jurisdiction, which undoubtedly empowers me to do what the applicant seeks, is to deal with the case in question justly.

How then should I proceed?

I start with the memorable observation of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, [2014] FSR 29, para 114(ii), that: "The trial is not a dress rehearsal. It is the first and last night of the show." In WM v HM [2017] EWFC 25, [2018] 1 FLR 313, para 39, Mostyn J said that:

In relation to the matters raised by the applicant in his Notes of 15 and 21 September 2020, I refuse to alter my judgment. I can set out my reasons very shortly:

I add this. I had already, despite the additional burden of costs this threw on to the respondents, been prepared to indulge the applicant, not once but twice, after the argument had been concluded (paragraph 15 above). His further attempts to expand and reopen the argument are an abuse of process. Enough is enough. There must be an end to this.

Costs in respect of the proceedings under the 1973 Act and the 1989 Act are governed by FPR Part 28; costs in respect of the claim under the inherent jurisdiction by CPR Part 44: Redcar & Cleveland Borough Council v PR [2019] EWHC 2800 (Fam).

The respondents' costs (on which no VAT is chargeable because they are nonresident) amount in all to £74,467.50: £63,420 down to 12 August 2020; £5,730 from 13 August to 10 September 2020; £5,317.50 from 11 to 21 September 2020. Mr Viney's submissions can be summarised as follows:

Mr Amos says that there should be no order as to costs; alternatively, that costs should be on the standard basis, be the subject of detailed assessment and not be enforced without the leave of the court. He makes these key points:

In these circumstances, I conclude, without hesitation, that in principle the applicant should be ordered to pay the respondents' costs. Such an order accords with principle and none of the factors identified by Mr Amos, whether taken in isolation or together, suffices to justify any different conclusion. The fact is that an adult son has chosen to

The more troubling question is whether costs should be on the standard or indemnity basis. I have come very close to ordering the applicant to pay all the costs on an indemnity basis but am persuaded – just – that that would be to go too far. In relation to the costs down to the end of the hearing on 12 August 2020 I shall order the costs to be paid on the standard basis. For reasons which will be apparent (see for example paragraph 158) the position from 13 August 2020 onwards is significantly different. The abuse of process to which I there referred requires that these costs be paid on the indemnity basis. In relation to the first period the costs claimed amount to £63,420; in relation to the second period to £11,047.50. I summarily assess them in the sums of £47,500 and £9,925 respectively.

At the end of the hearing on 12 August 2020 I said this:

Mr Amos argues that "having expressly adjourned further consideration of the TOLATA claim, on 28 July, and that claim not having in fact been pursued in the sense of formally issued, this Court need not and should not concern itself further with the TOLATA aspect at all." Indeed, in his final submissions on the point dated 22 September 2020 he submits that any direction is "unnecessary and otiose" because there is "no jurisdiction or legal purpose."

I do not agree. On the contrary, in my judgment, I can and should deal with it.

On 9 June 2020 the applicant registered a restriction against the title to the property and in his witness statement dated 17 July 2020, paragraphs 49-53, he set out the factual basis of his TOLATA claim, provided a draft of his claim form and specifically invited the court to give directions about it, which both Mostyn J and I have done. My order, on 28 July 2020, merely adjourned further consideration of the unissued TOLATA claim "generally" and not for any specified time.

In these circumstances interesting questions might be thought to arise in relation to the well-known principle in Henderson v Henderson (1843) 3 Hare 100, most recently analysed by Nicklin J in Tinkler v Ferguson and others [2020] EWHC 1467 (QB), [2020] 4 WLR 89, paras 34-38. There are also the interesting and suggestive observations of Carnwath LJ, as he then was, in Fitzhugh Gates (A Firm) v Claudia Sherman [2003] EWCA Civ 886, paras 55-57. I note also section 49(2) of the Senior Courts Act 1981 which provides that:

I can, however, and prefer to proceed on a narrower front.

The applicant in my judgment cannot properly continue indefinitely to 'sit on the fence' whilst at the same time maintaining the restriction. Putting it bluntly, he must 'put up or shut up.' This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in the aphorism that you cannot approbate and reprobate, in more homely language that you cannot have your cake and eat it.

I appreciate that the applicant may need time to come to a decision, and in all the circumstances I am prepared to give him a little more time. The appropriate way forward, in my judgment, is for me to include in the order I propose to make directions that (1) the applicant is to inform the respondents and the court within six weeks whether or not he proposes to proceed with a TOLATA claim and if he does (2) the applicant is within 3 weeks thereafter to issue the proceedings and serve points of claim. Failure to comply with these directions (time to be of the essence) will debar the applicant from pursuing the claim and lead to the removal of the restriction. Mr Viney submits that the periods specified should be respectively four and two, but as Mr Amos points out the respondents will not in reality be prejudiced if the applicant is given the slightly longer period, and, given the nature of the order I propose to make, it is, I think, appropriate to give the applicant that extra leeway.

Mr Amos seeks permission to appeal. He does not identify any specific grounds of appeal, or even those parts of the judgment he seeks to challenge, but in his submissions on the point dated 22 September 2020 he seemed to indicate that the focus of the proposed appeal would be the points raised by the applicant since the end of the hearing on 12 August 2020.

I refuse permission to appeal. There is, in my judgment, no prospect of an appeal being successful and no other reason justifying the grant of permission. I repeat what I have said in paragraphs 146 and 157(ii) – that an appeal in relation to those matters would serve no useful purpose.

Mr Amos seeks an extension of time for renewing the application. He submits that the applicant "should have a sufficient time in which to consider his position and the question of any attempted appeal, rather than being rushed into making an application" and that the respondents will not suffer any prejudice if time is extended. He says that "justice cries out for a longer period than the standard 21 days." That is hyperbole. I refuse to extend time. The judgment was circulated in draft on 8 September 2020 and the applicant has known since 22 September 2020 that I was not prepared to allow the re-argument for which he was contending. He has had plenty of time in which to consider his position and formulate it in appropriate detail. He has been treated with considerable indulgence; if he wants further indulgence, he must seek it in another place.

On 28 September 2020 at 10am I circulated to the parties by email (a) the judgment as it would be handed down two days later and (b) the draft of the order I proposed to make. I invited counsel to identify any typographical or other corrections to paras 143-174 of the judgment or to the order. No corrections to either were identified, but Mr Amos by an email on 29 September 2020 invited me to include in the order a stay of execution in relation to the order for costs pending appeal. He justified this on the basis of what he called "pragmatic simplicity", so that the question of costs enforcement stand or fall with the appeal process itself rather than requiring the applicant to seek additional specific relief from the Court of Appeal. That is not, in my judgment, an adequate justification for what he seeks. I refuse the application.

Having, as it seemed, achieved finality, and in what I believed to be the spirit of the Covid-19 Protocol, at 4.25 on the afternoon of 29 September 2020 I circulated to the parties by email the judgment as it was to be handed down at 12 noon the following day, 30 September 2020, and the order in its final form. I was staggered to receive from Mr Amos just after 9.30 in the evening this email:

Accordingly, I make the following order:

“Recital

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.”