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FS v RS [2020] EWFC 63 – claim for financial provision by 41-year-old child fails

Posted on 3 February 2021

The applicant was 41 years old and had qualified as a solicitor. He had been supported by his very wealthy parents throughout his life. It was asserted on his behalf (and, for the purpose of argument, assumed by the court) that he had a number of mental health difficulties and was vulnerable. The relationship between the applicant and his parents had deteriorated and, although he was still living in a flat owned by them, they had ceased paying the utilities. He sought financial provision under s.27 of the Matrimonial Causes Act 1973 ("MCA 1973"), alternatively Schedule 1 of the Children Act 1989 ("Schedule 1"), alternatively under the court's inherent jurisdiction.

Sir James Munby traced the origins of each of s.27 MCA 1973 and s.2 of Schedule 1. The intention of Schedule 1 had been to ensure that children of unmarried parents were not placed in a worse position in terms of financial provision than the children of married parents. However, s.27 MCA 1973 did not give the children of married parents a right to make a claim – the Law Commission Report preceding the MCA 1973 had been explicit that the intention was not to permit children to make claims against their parents, unless the relationship had broken down. He could not "read down" to achieve the result the applicant sought, as reading down was only permitted where it went with the grain of the existing legislation. What the applicant sought would be squarely contradictory to the Acts of Parliament in question. These provisions did not breach the applicant's human rights, as being the child of married or unmarried parents did not amount to a "status" for the purposes of the relevant provisions regarding non-discrimination.

The applicant had asked that, in the alternative, the court make provision in his favour using its inherent jurisdiction. Sir James Munby noted that the inherent jurisdiction could not be used in the way suggested. The inherent jurisdiction existed where a party was vulnerable, but still had capacity, to assist them to make a relevant decision or choice. What it could not do was give them rights that parties without the vulnerability would not have had. It cannot be used to compel an unwilling third party to provide money or services. Further, the inherent jurisdiction is ousted by any relevant statutory scheme – here, the provisions of MCA 1973 and Schedule 1.

David Lister says:

This is a highly unusual case where a qualified solicitor attempted to secure further financial provision against his parents who were happily married. 

The circumstances of the case were so unusual that the court (Sir James Munby), as well as those representing the parties, could find no previous decision in which the issues had arisen. It did not appear that any adult child who had completed their studies had made a similar claim in the past. 

The claim in this case relied upon legislation designed to provide the court with power to make financial provision in circumstances where the parents were either separated and/or the claiming "child" was significantly younger and not already fully qualified into a professional role. 

On rare occasions, with separated parents, it may be possible for an adult child to make a financial claim against his or her parent(s) if that child is continuing to receive education, whether secondary, tertiary or, on rarer occasions, continuing education (such as essential professional qualifications or post-graduate degrees). Where there is a clear nexus between a child's desire, from the start, to be a professional (such as a solicitor, barrister, doctor, etc), then the greater the chances, in appropriate circumstances, for the child to make a successful application.

On the other hand, if a child has an aversion to work and prefers university life (such as a series of postgraduate degrees), then the chances of a successful free standing child application are reduced

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