FS v RS and JS



Judge: Family Court (Sir James Munby)

Citation: [2020] EWFC 63

As Sir James Munby noted at the outset of his judgment in FS v RS and JS [2020] EWFC 63: “[t]his 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.”  In short terms, the applicant, who was the 41-year old son of the respondents, sought 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.”   Barbara Rich has written an interesting and thoughtful blog on the judgment as a whole; for present purposes, we draw attention to it because of the opportunity that it gave Sir James to make further comment upon an aspect of the inherent jurisdiction which he more or less singlehandedly discovered (or, perhaps more accurately, invented).    At paragraphs 100-138 of his judgment, Sir James undertook a tour d’horizon of the jurisdiction as it now stands.  Whilst those missing his characteristically erudite exegeses of difficult areas of the law will no doubt want to read these passages in full, we suggest that the following observations are of particular wider significance:

  • Whilst the inherent jurisdiction may be 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, “the inherent jurisdiction is a safety net, not a springboard” (paragraph 100). Whatever its theoretical reach, it is in settled practice, recognised as being subject to limitations on what the court can and should do.   Whilst it may be called upon to address new problems, “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)” (paragraph 103);
  • “[P]recisely because they do not lack capacity, those subject to this branch of the inherent jurisdiction [i.e. that relating to vulnerable adults] are fully autonomous adults; and (2) that, fundamentally, the jurisdiction exists to protect and to facilitate their exercise of that autonomy” (paragraph 114);
  • Sir James Munby’s observations as to whether the jurisdiction might be extended as far as had been identified by Hayden J in Southend-On-Sea Borough Council v Meyers[2019] EWHC 399 (Fam), as then explained by Lieven J in London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam).[1]   As he noted, “[t]here 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” (paragraph 122);
  • The “fundamental principle that the inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services” (paragraph 123). In other words, and just as is the position for a Court of Protection judge, a judge exercising the High Court’s inherent jurisdiction cannot seek to generate options for the vulnerable adult that are not, in fact, on the table;
  • The equally fundamental principle that the inherent jurisdiction cannot be used to cut across or usurp any relevant statutory scheme enacted by Parliament. Sir James expressly endorsed the “very pithy” formulation of the point by Lieven J in JK v A Local Health Board[2019] EWHC 67 (Fam),  namely that “[t]he 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.”  As Sir James noted, 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” (paragraph 136).  The Supreme Court will, we should note, be grappling with precisely this question in the appeal it is shortly to hear in the Re T case concerning the question of when the inherent jurisdiction can be used lawfully to deprive a child of their liberty where no secure accommodation is available.

[1] In which she had said (at paragraph 63) that she did “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 [67], 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.”

CategoryOther proceedings, Family (private law), Mental Health Date

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