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Bill Published 16 Apr 2026 Ministry of Justice ↗ View on Parliament

Courts and Tribunals Bill — Written evidence submitted by Dale Langley Solicitors (concerning clause 17) (CTB31)

Parliament bill publication: Written evidence. Commons.

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ALE LANGLEY SOLICITORS
Individual Law Practice
Solutionlaw Limited (Company no. 8829299) incorporated in England and Wales trading as Dale Langley Solicitors
Authorised and regulated by the Solicitors Regulation Authority Number 611936
1
Director and Principal Solicitor Dale E. Langley
15 Ap
ril 2026 18th & 19th Floors
100 Bishopsgate
Londo n
EC2N 4AG
enquiries@dalelangley.co.uk
www.dalelangley.co.uk
Our ref: DELDLS01770
Mr. Ian Hook
Senior Executive Officer
Scrutiny Unit
House of Commons
London
SW1A 0AA
By emai
l only: scrutiny@parliament.uk
Clos
ing the "Jurisdictional Gap" in Schedule 1 of the Children Act 1989 by repealing
paragraph 2(4) of Schedule 1 of Children Act 1989 through Courts and Tribunals Bill
2026
Dear Mr. H
ook,
I would
be grateful if you could please immediately send this important submission to the
Public Bill Committee (“the Committee”) who are presently considering the Courts and
Tribunals Bill 2026 (“the Bill”). I would respectfully ask for this submission to be properly
considered and published by the Committee with a view to a formal recommendation made by
the Committee to Parliament to repeal paragraph 2(4) of Schedule 1 of the Children Act 1989
for the reasons provided in this submission.
1. EXECUTI
VE SUMMARY
• This s
ubmission identifies a critical legislative conflict: while clause 17 of the Bill seeks to
protect children by removing the presumption of parental involvement from the Children
Act 1989, paragraph 2(4) of Schedule 1 to the Children Act 1989 continues to penalise
children based on nothing more than their parents’ cohabitation status. This discriminatory
restriction means that whilst adult disabled children of separated parents can apply for
financial relief against their parents, the adult disabled children of parents who live together
cannot. This is contrary to both Article 14 of the European Convention on Human Rights
and is also strikingly and concerningly inconsistent with the legislation and practice of

every other country in the world (see Table of Countries at Exhibit 2 prepared by our
Counsel from Brick Court Chambers).

• Human Rights: The “living together” restriction is a form of status based discrimination
which breaches Article 14 of the European Convention on Human Rights and is also
inconsistent with the Bill’s Equalities Statement. It treats children of “together parents” as
lesser in the eyes of the law regarding their financial security. This outdated form of
discrimination has a particularly severe and unfair effect on adult disabled children with
complex needs who lack the means to support themselves and are unable to apply for
financial relief against their parents.

• Coercive Control: By restricting financial provision based on parents’ living
arrangements, the law enables financial abuse. Repealing paragraph 2(4) of Schedule 1 to
the Children Act 1989 is a necessary step to align with the Bill’s goal of protecting victims
of financial abuse.

• Court efficiency: Removing this outdated restriction will streamline proceedings, moving
the focus from parental status to child welfare, thereby supporting the Bill’s objective to
reduce court delays and “modernise” justice.

• Aligning our child maintenance laws with the rest of the world: The Committee will
respectfully note from the Table of countries at Exhibit 2 that the UK is the only country in
the world which practices this outdated form of discrimination. In fact, even Scotland does
not practise this outdated form of discrimination based on parents’ living and marital status.
This is an extremely strong evidence based reason for the Committee to formally
recommend that Parliament remove and repeal the discriminatory restriction in paragraph
2(4) of Schedule 1 to the Children Act 1989.

2. INTRODUCTION

1. I am writing to you as the solicitor who represented our client, Mr. Faiz Siddiqui, in the
high profile and highly publicised Appeal to the Court of Appeal in 2021 (the Appeal was
heard by Vice-President Underhill, Lord Justice Dingemans and Lord Justice Moylan) in
the case of Siddiqui v Siddiqui [2021] EWCA Civ 1572 which concerned the compatibility
of Schedule 1 of the Children Act 1989 and the Matrimonial Causes Act 1973 with Article
14 of the European Convention on Human Rights, which relates to discrimination.

2. I understand that the Children Act 1989 is presently under review in the proposed Courts
and Tribunals Bill 2026 with a broad mandate to reduce “unfairness” and “inequality”
within the Children Act 1989 in accordance with the Law Commission Report published

in September 2025 which regarded it as being “out of date”, “unfair” and “requiring a
unified framework”. We also understand that this matter has now been passed to the
Public Bill Committee. We have an extraordinarily important issue which we wish to raise
with you and respectfully ask for your support on.

3. THE ISSUE

3. As you may be aware, under Schedule 1 of the Children Act 1989, disabled adult children
may – in some circumstances – apply for financial maintenance from their parents.
However, the opportunity to apply for such support is subject to an unexplained and
unjustifiable carve out. Under Schedule 1, Paragraph 2(4) of the Children Act 1989, adult
disabled children are barred from applying for financial maintenance if their parents still
live together. By way of contrast, where their parents are separated, they m ay apply for
maintenance.

4. This creates a "jurisdictional gap" where the some of the most vulnerable —those with
lifelong disabilities in families where the parents have not separated — have no legal
recourse to seek parental support, whereas adult disabled children of separated parents do.
This is quite remarkably the case even where the adult disabled child lives entirely
separately from his parents, as our client does, such that his/her parents’ living
arrangements with one another are completely irrelevant to his/her disability rela ted
needs. The discrimination concerned in Schedule 1 of the Children Act 1989 is highly
deplorable, outdated and is inconsistent with adult child maintenance provisions of all of
the countries we have researched, including all European Countries, North Am erica and
several other Asian and African states (see Table of Countries at Exhibit 2) . You will
respectfully note that the law in this country is also inconsistent with the law in Scotland
where adult disabled children are entitled to apply for relief aga inst their parents
irrespective of their marital and/or living status.

5. The international comparison table with that list of countries which has been prepared by
our Expert human rights Counsel from Brick Court Chambers is attached below at Exhibit
2 and makes for extremely concerning reading. This shows that England is very much the
“odd man out” in terms of practicing this abhorrent and out of date discrimination based
on parental marital and/or living status and urgent reform is now needed to bring Schedule
1 of the Children Act 1989 in line with other nations across the world.

4. THE LEGAL VACUUM (SIDDIQUI V SIDDIQUI [2021] EWCA CIV 1572)

6. The Court of Appeal’s judgment in Siddiqui v Siddiqui [2021] EWCA Civ 1572 was
extremely strange to say the least, according to all of the Leading Human Rights Counsel
we have spoken to about this matter, including those who have previously and

successfully achieved section 4 Human Rights Act 1998 declarations of incompatibility
under Article 14 of the European Convention on Human Rights in the High Court, Court
of Appeal and UK Supreme Court. Top Leading Human Rights Counsel such as Hugh
Southey KC, who personally led our case in the Court of Appeal, Helen Mountfield KC
and Vikram Sachdeva KC have all understandably expressed incredulity and alacrity at
the perverse judgment made by Lord Justice Moylan. Furthermore, our client recently
attended a Justice event on Friday 7
th November 2025 and met Supreme Court Justice
Lord Briggs with whom he discussed his case. Lord Briggs was equally incredulous at the
perverse result reached by the Court of Appeal and could not see any justification for the
decision they had reached.

7. In his lead judgment Lord Justice Moylan (a judge with a family law background rather
than a specialist Human Rights one, which is plainly what this Appeal required) quite
remarkably failed to find that a child maintenance statute came within the ambit of the
Article 8 right to respect for family life or Article 1 Protocol No. 1 right to property. That
was a “very interesting” result to say the least given that UK statutes with much less
connection to the Article 8 right to respect for family life, for exam ple housing rent
statutes, have been found to come within the ambit of Article 8 right to respect for family
life. There was also no question that the right to maintenance represented a form of
“property” which came within the ambit of Article 1 of Protocol no. 1 right to respect for
property and/or personal possessions.

8. Furthermore, the Court of Appeal failed to find an Article 14 “status” as a basis for
establishing the discrimination based on the fact that there was no personal and
identifiable characteristic, even though it is well- established in the European Court’s
caselaw that a status can be based on a “status in law” and in relation to another person
such as being the adult disabled child of together/married parents as opposed to the adult
disabled child of separated/divorced parents. The result was so perverse tha t even the
other side’s human rights Counsel (Jennifer MacLeod of Brick Court Chambers) wrote
an article shortly after the Court of Appeal’s judgment was handed down on 5 November
2021 to express her sheer incredulity at the result reached by the Court of Appeal
(https://www.brickcourt.co.uk/news/detail/court-of-appeal-upholds-limits-on-child-
maintenance-for-adults) which we quote from below:

“The Court of Appeal upheld the judgment below, finding that there was no
discrimination. Unusually, the Court dismissed the Claimant’s application on the
ground that he did not have a relevant “status” under Article 14, that he was not
in an analogous position to those adults who might receive child benefit, and that
his claim did not fall within the a mbit of a relevant right. As such, the judgments
demonstrate that there are indeed limits to the engagement of Article 14, limits

which are rarely found in the caselaw (our emphasis).”

9. It is our considered view that Lord Justice Moylan quite deliberately and unfairly took an
unjustifiably narrow interpretation of the law with a view to depriving the Applicant and
millions of other severely disabled people around the country vital access to life saving
relief purely to preserve the “status-quo”.

10. We also note that Lord Justice Moylan has made a number of previous judgments all of
which have been in support of the institution against principles of natural justice and
fairness, including a hospital’s “right” to terminate life-saving support to a young baby,
causing her death. We are content to provide these judgments upon request. You will note
that some of these judgments have also resulted in complaints to the Judicial Conduct
Investigations Office by the individuals involved in these lawsuits.

11. We believe that Lord Justice Moylan’s views and judgment are completely out of sync
with modern thinking, are completely out of date with the Human Rights Act 1998 and
the much more progressive and egalitarian society in which we now live. It is our
unequivocal view that Lord Justice Moylan should have been applying Article 14 of the
ECHR correctly and respecting the rule of law. It is deeply regrettable and disgraceful
that he has failed to do so.

12. However, the Court of Appeal in Siddiqui v Siddiqui [2021] EWCA Civ 1572 did at least
acknowledge this anomaly. Lord Justice Moylan explicitly stated that if the law fails to
provide for this group, it is a matter for Parliament , not the courts. Lord Justice
Underhill also stated the same at paragraph 137 of the Court of Appeal’s judgment where
he described this state of affairs as being the “considered policy of Parliament ” and at
paragraph 138 of the same judgment where he stated that “ Judgments of that kind are
peculiarly a matter for Parliament”. By introducing the Courts and Tribunals Bill, the
government has now opened the door to the Children Act 1989 to tackle this anomaly.

13. It is important to note that no justification has ever been put forward for the discrimination
in question either in the 1982 Law Commission Report or the Children Bill which
introduced the Children Act 1989 into UK law. In 1982 the Law Commission considered
the provisions which later became the relevant provisions of the CA 1989. It described
the rationale for those provisions as to ‘assimilat[e] the legal position of marital and non-
marital children’ by ‘confer[ring] on all children of 18 and over… a new right to apply
at their own instance for financial provision if… there are special circumstances’ : Law
Commission Report, ‘Family Law: Illegitimacy’, 1982 (Law Com No 118) §6.30. The
Law Commission recommended that this right “ should only be available if the parents
relationship has broken down”. To the extent that any underlying rationale for this

conclusion can be discerned, the Law Commission noted that the changes it was
recommending were “primarily concerned to remove the legal disadvantages of
illegitimacy” (they were not concerned with the difference between the adult children of
married or unmarried parents).

14. The Commission went onto conclude that the best evidence of the breakdown of a
relationship between married parents would be the fact that the parents were no longer
living together. Accordingly, it recommended that the right to apply for financial relief
should turn on whether the parents were cohabiting. The Law Commission might well be
right that the best evidence or proxy for marital breakdown is the fact that parents are no
longer cohabiting. However, the Law Commission did not identify any clear rationale for
the difference in treatment between adult disabled children of together/married parents
and the adult disabled children of divorced/separated parents (the “Difference in
Treatment”) since its role was to address the “legal disadvantages of illegitimacy” rather
than consider the broader issued caused by the Difference in Treatment.

15. In summary, therefore, the Law Commission set out no reasons for the Difference in
Treatment in either its 1969 or 1982 reports. It only noted that such differences existed
and suggested that what became the Children Act 1989 was not the proper place to
address them. Finally, no policy rationale for the Difference in Treatment was identified
by the Lord Chancellor and Solicitor General when the Children Bill which became the
Children Act 1989 was introduced into Parliament. They merely described the
Difference in Treatment as providing for ‘applications by children over the age of 18
whose parents are separated and….who have special needs, such as would arise from
some form of physical handicap’. This was stated by the Lord Chancellor on the Second
Reading in the Lords on 27 November 1986 (Hansard, Vol 482, Col 651) and also by the
Solicitor General on the Second Reading in the Commons on 7 April 1987 (Hansard,
Vol 114, Col 257).

16. There are a number of important points which can be made in relation to the above
background materials to the Children Act 1989:

17. First, at their highest, this background material: (i) describes the Difference in
Treatment; and (ii) explains that the amendments which gave rise to the current state
of the UK Legislation were not the proper vehicle by which to remedy that difference.
They do not justify, explain or set out any underlying policy rationale for it.

18. Second, the needs of adult children with disabilities have no logical connection with
whether their parents live together and/or are divorced. The adult child may live alone
without either parent (as Mr. Siddiqui does). In such a case, the state of their parents’

relationship has no bearing on his or her needs arising from their disability. The same
may well also be true of a child living with one or both of their parents.

19. Third, in the absence of any rationale for the Difference in Treatment, it appears to rest
on antiquated perceptions of the consequences and greater needs that might follow from
the fact that a child’s parents are not cohabiting or are divorced. In the
decades since the making of the UK Legislation, the range and diversity of living
arrangements has expanded greatly. It has always been possible for parents who are
married or in a relationship to live in separate households. Such arrangements have
become more common since the Children Act 1989 was enacted. To the extent that the
Difference in Treatment rests on historic views about what is ‘normal’ in family
relationships, that provides no proper public policy rationale for it.

20. Fourth, it produces arbitrary distinctions. Why – at least one reading of Schedule 1
paragraph 2(4) should someone in the position of Mr. Siddiqui be better off just because
one of his parents are dead such that he can apply for relief against the surviving parent?

21. Fifth, the Law Commission reports and enactment of the Children Act legislation in
1989 came before disability discrimination was banned under the Disability
Discrimination Act 1995 which officially recognised disability as a basis for
discrimination. This might explain why disability was never considered in relation to
Schedule 1 of the Children Act 1989, just as it was not considered in relation to the
Matrimonial Causes Act 1973.

5. PROPOSED AMENDMENT TO CHILDREN ACT 1989

22. The amendment needed to remove the outdated discrimination from Schedule 1 of the
Children Act 1989 is extremely simple. All that needs to be done is to remove the
exclusionary clause at paragraph 2(4) of the Children Act 1989 and to insert appropriate
remedial wording to assist those who have been previously and adversely affected by
this discriminatory paragraph:

Draft AmendmentChildren Act 1989 (Schedule 1)

Amendment to Schedule 1, Paragraph 2 (Financial provision for persons over eighteen)

"(1) In Schedule 1 to the Children Act 1989, paragraph 2, sub- paragraph (4)
(restriction on orders where parents are living together) is hereby repealed.
(2) This section has retrospective effect.
(3) Any order for costs made in proceedings under Schedule 1 to the Children Act

1989 which were dismissed or otherwise unsuccessful solely by operation of
paragraph 2(4) of that Schedule is hereby vacated.

(4) A person subjected to a costs order vacated by subsection (3) is entitled to the
discharge of any remaining liability under that order.”

23. In our view and in the interests of fairness, the amendment should also apply
retrospectively in relation to all litigants, including our client, who have previously and
unfairly been denied relief and had adverse costs orders made against them on a purely
jurisdictional basis. We have therefore suggested some specific wording above to address
this point. The Member’s Explanatory Statement could be: “This new clause repeals
the restriction in Schedule 1 of the Children Act 1989 that prevents financial orders being
made while parents live together and provides a retrospective remedy to vacate costs
orders previously made against applicants due to this restriction”.

6. STRATEGIC JUSTIFICATION

24. Cost-Neutral for Taxpayers: This reform does not require new government spending. It
simply allows the court to order wealthy parents to support their adult disabled children,
potentially reducing the burden on the DWP and the benefits system.

25. Consistency: The Bill is already amending Section 1 of the Children Act to protect
vulnerable and disabled adult children from financial abandonment.

26. Equality of Status: Maintaining a bar based solely on the marital or cohabitation status
of parents is an "accident of history" that fails the modern test of fairness. This is
unequivocally demonstrated by the table of countries attached to this letter which do not
practise this abhorrent and outdated form of discrimination.

7. NEXT STEPS IN LIGHT OF THIS LETTER

27. Our client has suffered abuse and neglect at the hands of his cruel and inhumane
multimillionaire parents for many years. Most recently, they have completely cut off all
communication with him for the past 2 years and have once again substantially reduced
his financial support, thereby causing a grave and imminent danger to his health and life.
There have also no doubt been millions of disabled children all over the country who have
suffered financial abuse at the hands of their parents as a result of the u njust and
discriminatory restriction in paragraph 2(4) of Schedule 1 of the Children Act 1989.

28. The Court and Tribunal Bill cannot simultaneously seek to promote equality and fairness

in the Children Act 1989 by removing the presumption of parental involvement and yet
fail to address the financial abuse which arises from the very clearly discriminatory
restriction in paragraph 2(4) of Schedule 1 of the Children Act 1989.

29. We would therefore now respectfully ask that the Public Bill Committee properly takes
this submission into consideration, publishes this submission and makes a formal
recommendation to Parliament that the discriminatory restriction in paragraph 2((4) of
Schedule 1 of the Children Act 1989 be repealed.

In light of the obvious importance of this matter, we would be grateful if this submission
could be shared with the Public Bill Committee as soon as possible.

Yours sincerely,

Dale Langley

Dale Langley Solicitors

Enclosures:

1. Hugh Southey KC’s Grounds of Appeal and Skeleton for Court of Appeal hearing in
2021

2. Global international table of countries showing that the UK is a rogue outlier state in
terms of discrimination against adult disabled children based on their parents’
relationship and/or living status

3. Judgment in Canadian case of Ryan v Pitchers, 2019 ABQB 19 where precisely the same
discrimination in question was found to be discriminatory

4. Commentary on Ryan v Pitchers, 2019 ABQB

EXHIBIT 1

In the Court of Appeal B6/2020/1675
Civil Division

On appeal fromHigh Court of Justice ZC20P04055
Family Division

FZM

- v -

RAS and JDS

GROUNDS OF APPEAL

1. In a judgment delivered on 30 September 2020 Sir James Munby concluded that
he had no jurisdiction to consider an application made by an adult child to apply
for financial support from parents who remain married and living together. The
Appellant submits t hat Sir James erred when he concluded that the European
Convention on Human Rights (‘the Convention’) did not entitle him to make
such an application. Without prejudice to the generality of that submission, the
Appellant submits that Sir James erred when he concluded that:
a. The subject matter does not come within the ambit of a right protected
by the Convention (specifically articles 6, 8 and article 1 of the first
protocol).
b. Any discrimination is not on a ground that comes within the scope of
article 14 of the Convention.
c. Relevant statutory provisions cannot be read compatibly with the
Convention.
d. Alternatively, to the extent that the relevant statutory provisions
cannot be read compatibly with the Convention, compatibility with
article 14 cannot be achieved through the use of the courts’ inherent
powers.

HUGH SOUTHEY QC
MATRIX
21 October 2020

In the Court of Appeal B6/2020/1675
Civil Division

On appeal fromHigh Court of Justice ZC20P04055
Family Division

FZM

- v -

RAS and JDS

APPELLANT’S SKELETON ARGUMENT IN SUPPORT OF
SUBSTANTIVE APPEAL
25 January 2021

References in square brackets are to the judgment of Sir James Munby unless the
context makes it clear that the reference is to some other judgment.

Time estimate
Hearing: 1 day
Advanced reading 1 day
Essential reading:
Skeleton arguments
Judgment of Sir James Munby
Order of McCombe LJ dated 18 December 2020

Issues that arise
1. This appeal arises from a ‘novel’ application that raised issues that Sir James
Munby appeared to accept were both complex and important [2]. That
application argued that it was possible for an adult child to apply from financial
support from parents who remain married and living together. The Appellant
submits
that Sir James erred when he concluded that the European

Convention on Human Rights (‘the Convention’) did not entitle him to make
such an application. The issues that arise in this appeal are:
a. Whether the subject matter comes within the ambit of a right protected
by the Convention. (ground a.)
b. Whether any status comes within the scope of article 14 of the
Convention (‘article 14’). (ground b.)
c. Whether there is justification for the differential treatment. (an issue
that arises if the Appellant succeeds with grounds a. and b. as Sir James
left open this issue)
d. Whether relevant statutory provisions can be read compatibly with the
Convention. (ground c.)
e. To the extent that the relevant statutory provisions cannot be read
compatibly with the Convention, whether compatibility with article 14
can be achieved through the use of the courts’ inherent powers.
(ground d.)

2. On 18 December 2020 McCombe LJ ordered a rolled -up hearing in relation to
grounds a. and b. (i.e. issues a, b and c). Permission to appeal was refused in
relation to grounds c. and d. (i.e. issues d. and e.). The Appellant has applied to
re-open that order and the arguments are set out below.

Factual background
3. The relevant factual background is set out by Sir James Munby in his judgment
([3] onwards). It is accepted that this was appropriately brief in light of the legal
issues that arise. The Appellant highlights the following matters:
a. The Appellant has ‘mental health disabilities’ and other difficulties [6].
Sir James Munby was willing to accept that the Appellant was
vulnerable for the purposes of the Court’s inherent jurisdiction [6].
b. The Appellant’s parents are married and live together in Dubai [6].
c. The Appellant’s parents have provided financial support. However, the
relationship has deteriorated and support has significantly reduced [7].

Judgment
4. The Appellant highlights the following aspects of the judgment of Sir James
Munby:
a. The subject matter does not fall with the ambit of the Convention as
no Convention right is engaged [79].
b. Any discrimination is not on the basis of a status that engages article
14 [87].
c. It was unnecessary to determine whether any differential treatment is
justified.
d. The relevant statutory provisions cannot not be read consistently
with the Convention [60].
e. It was not open to the court to exercise its inherent jurisdiction [137].

Statutory framework
5. Section 23(1) of the Matrimonial Causes Act 1973 (‘the 1973 Act’) provides, so
far as is relevant, that:
(1) On granting a decree of divorce, a decree of nullity of marriage or a
decree of judicial separation or at any time thereafter (whether, in the case of a
decree of divorce or of nullity of marriage, before or after the decree is made
absolute), the court may make any one or more of the following orders, that is to
say - …
(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) … 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.

6. Section 29 of the 1973 Act provides, so far as is relevant that:
(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, and paragraph (b) of subsection (2), 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.

7. Sections 23(1) and 29 of the 1973 Act enable adult children of divorced parents
to apply for financial support if the conditions in section 29(3) are met (Downing
v Downing (Downing Intervening) [1976] Fam 288 at 293E). They plainly do not apply
to the Appellant.

8. Section 27 of the 1973 Act provides, so far as is relevant, that:
(1) 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. [Emphasis added]
It is accepted that the natural meaning of the emphasised words means that the
jurisdiction of this Court to consider applications by children aged over 16 years
of age does not apply in this case because it only applies where there is an order
that can be varied. As a consequence, the Appellant cannot rely on this provision
unless he can rely on human rights arguments. However, had one of his parents
successfully applied for an order under section 27(1), he could have applied for
an order. He is worse off because his parents were able to agree financial
provision for him and so did not need to apply under section 27(1).

9. Paragraph 2 of schedule 1 to the Children Act 1989 (‘the 1989 Act’) provides, so
far as is relevant, that:
(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.
(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. [Emphasis
added]

It is accepted that the natural meaning of the emphasised words means that the
jurisdiction of this Court to consider applications by children aged over 18 years
of age does not apply in this case because it only applies where the child’s parents
have separated.

10. The matters above demonstrate that the Appellant would be able to apply for
financial support from his parents if:
a. His parents were divorced.
b. There was already an order for financial support that had been made
under section 27 of the 1973 Act.
c. His parents were separated.

11. The analysis above is supported by The Family Court Practice (‘The Red Book’)
2020 Edition, which states 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. [2.223]
The implication appears to be that this is an anomaly.

12. Obviously both the 1973 Act and the 1989 Act limit the circumstances in which
an adult can apply for financial support from his parents. One context is if there
is ‘special circumstances’. ‘Special circumstances’ include disability ( C v F
(Disabled Child: Maintenance Orders) [1998] 2 FLR 1 at 3). Consistent with this, in
J v C (Child: Financial Provision) [1999] 1 FLR 152 Hale J held that:
There is a long line of authority, beginning with Chamberlain v Chamberlain
[1973] 1 WLR 1557, and continuing with Lilford (Lord) v Glynn [1979]
1 WLR 78, (1978) FLR Rep 427 and Kiely v Kiely [1988] 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.
(p155)
This demonstrates that it is arguable that the Appellant’s vulnerability means that
he would be entitled to financial support if his parents were separated.

13. The origins of the limitations on children seeking maintenance from their
parents was summarised by Sir James Munby. In essence:
a. A Law Commission report published in July 1969 and entitled Family
Law: Report on Financial Provision in Matrimonial Proceedings was the origin
of the 1973 Act [27]. This report expressly concluded that it was not
desirable to give a child a power to take his parents to court because,
for example, he wanted to embark on studies that they were not
prepared to support [28]. As a consequence, section 23(1) and 29 only
enabled an adult child to seek support when his parents were seeking
a divorce or had obtained a divorce and so had commenced litigation.
b. Section 27(6A) of the 1973 Act was enacted by the Domestic
Proceedings and Magistrates’ Courts Act 1978 (‘the 1978 Act’). That
recognised that children might have grounds to seek financial support.
It enabled them to commence litigation.
c. A Law Commission report published in December 1982 and entitled
Family Law: Illegitimacy was the origin of paragraph 2 of schedule 1 to
the 1989 Act [29]. It essentially concluded that the 1973 Act only
applied to children whose married parent’s relationship had broken
down. The law needed to be extended to cover the children whose
parents were unmarried. However, in the context of reforms intended
to ‘remove the legal disadvantages of illegitimacy’, legal reform should
not go further [33].

Approach to article 14
14. There are five issues that arise when considering whether article 14 is violated
(R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 at [42] – [43]). Those
issues are:
a) Do the matters complained about come with the ambit of a right
protected by the Convention?
b) Whether there is a difference in treatment?
c) Is there differential treatment on a ground potentially prohibited by
article 14? This requires consideration of whether the difference in

treatment is based upon a status that comes within the scope of
article 14.
d) Whether the others who are said to receive differential treatment are in
a truly analogous situation?
e) Is the differential treatment justified?

15. It is accepted that there is often some considerable overlap between these issues,
particularly regarding the last three questions posed ( S at [43] and R (Stott) v
Secretary of State for Justice [2020] AC 51 at [137] and [148]).

16. In this case it appears that no issue was raised regarding whether there was a
difference in treatment and whether the groups were analogous. As a
consequence, it is the other 3 issues identified in S that are addressed below
(although Sir James Munby did not rule on justification).

Ambit
17. The concept of ambit must be widely construed ( R (JCWI) v Secretary of State
[2020] EWCA Civ 542 at [100]). In EB v France app 43546/02 the Grand
Chamber of the European Court of Human Rights (‘the ECtHR’) held:
The prohibition of discrimination enshrined in Article 14 thus extends beyond
the enjoyment of the rights and freedoms which the Convention and the Protocols
thereto require each State to guarantee. It applies also to those additional rights,
falling within the general scope of any Convention Article, for which the State
has voluntarily decided to provide. [48]
In JCWI, Hickinbottom LJ held:
… where a positive measure of the state is being considered, it is sufficient that
that measure has more than a tenuous connection with the core values protected
by the substantive article [104].
These matters mean that it is important to focus on cases where the subject
matter has been found to come within the ambit of a Convention right rather
than upon cases where the issue was whether a substantive Convention right has
been engaged. That is contrary to the approach of the Respondents, which has
generally and incorrectly been to focus on whether the substantive rights in issue
are engaged.

18. The ECtHR has accepted that discrimination in the context of litigation comes
within the ambit of article 6 of the Convention (‘article 6’) ( Schuler-Zgraggen v
Switzerland app 14518/89 at [64] onwards). This is true even where the subject
matter would normally be outside the scope of article 6 because it would fall
within states’ competences [65].

19. In Aldeguer Tomás v Spain app 35214/09 the ECtHR held that the provision of
survivor pensions to some but not all who enjoyed family life with a deceased
came within the ambit of article 8 of the Convention (‘article 8’) [76]. That is
presumably because the state has sought to addr ess the financial need of some
but not all family members.

20. In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2018] QB 804 the
Court of Appeal applied Aldeguer Tomás (as well as other authorities) to hold that
bereavement damages under the Fatal Accidents Act 1976 come within the
ambit of article 8. That was because:
... it is apparent from the very fact that bereavement damages are limited in
section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement
damages are specifically intended to reflect the grief that ordinarily flows from the
intimacy which is usually an inherent part of the relationship between husband
and wife and civil partners. It inevitably follows that the scheme for bereavement
damages is properly regarded as a positive measure, or modality, by which the
State has shown respect for family life, a core value of Article 8 [72]

21. In Fabris v France app 16574/08 the Grand Chamber of the ECtHR held that
inheritance rights came within the ambit of article 1 of the first protocol to the
Convention (‘A1P1’). It stated:
… the applicant has been denied all or part of a particular asset on a
discriminatory ground covered by Article 14, the relevant test is whether, but for
the discriminatory ground about which the applicant complains, he or she would
have had a right, enforceable under domestic law, in respect of the asset in
question [52]

22. The matters above all suggest that the subject matter of this claim comes within
the ambit of a Convention right. In support of that submission, the Appellant
relies on the following matters:
a. The state has gone beyond what it is required to do by the Convention
in circumstances in which there is a more than tenuous link with the
Convention (JCWI and EB).
b. Although it is accepted that article 6 does not establish a right for
someone such as the Appellant to seek financial support from his
parents, where there is a right to bring such proceedings that right
comes within the ambit of article 6 (Schuler-Zgraggen). As a consequence,
differential rights to financial support come within the ambit of article
6.
c. The family life that some children enjoyed with their parents is
recognised by enabling them to seek financial support. Respect is
shown for family life by enabling children to turn to their parents for
support in accordance with general expectations as to the continuing
duties parents owe to children. Where others are unable to seek
financial support, that comes within the ambit of article 8 ( Aldeguer
Tomás and Smith).
d. Sir James Munby did not rule on whether the Appellant would have
been awarded financial support if he came within the terms of the 1973
Act and the 1989 Act. As jurisdiction was at issue, it has to be assumed
he would have been. That implies that the matte rs come within the
ambit of A1P1 (Fabris). If the Appellant is correct, he has been denied
an asset he would have otherwise enjoyed on discriminatory grounds.
e. The Respondents place significant weight on the findings of Sir James
Munby based on JM v United Kingdom app 37060/06. The fact that
article 14 was engaged on a particular basis in JM is no answer to the
Appellant’s arguments. JM does not and could not purport to be an
exhaustive statement of the circumstances in which article 14 applies.
As a consequence, even if it can be distinguished, that is no answer to
the Appellant’s arguments. It is also no answer to the Appellant’s
arguments based on other Convention articles.

f. Ultimately the critical point is that it is inconceivable that
discrimination regarding financial relief for children on the basis of
gender or race would not engage article 14 ( R (Clift) v Secretary of State
for the Home Department [2007] 1 AC 484 at [66]). Given the potential
importance of such rights to matters such as education that potentially
depend upon financial support, it is inconceivable that financial
support determined on the basis of race or gender would not violate
article 14. Although this case is not about gender or race, if matters are
within ‘ambit’ in a case where gender or race is raised (as they are), that
implies that they are within ambit generally including in the context of
this case (Clift).

23. It is unfortunate that the case law above appears not to have been cited to Sir
James Munby. It is submitted that the approach he adopted was flawed and
inconsistent with that case law. In particular, he concluded that the matters did
not come within the ambit of any Convention right as no Convention right was
engaged [79]. The submissions above demonstrate that this is the wrong
approach because the approach to ambit is far wider.

Status
24. There is no case law directly on point. In particular, it is accepted that there are
factual distinctions between the case law relied on by the Appellant and his case.
As a consequence, the Appellant has sought to focus on the principles
established by that case law.

25. The approach to ‘other status’ that engages article 14 was considered recently by
the Supreme Court in Stott. The Supreme Court reached the following
conclusions:
a. A generous meaning ought to be given to ‘other status’ ([56(i)] and
[81]).
b. Personal characteristics need not be innate [56(iii)].
c. It is unlikely to be helpful to focus on whether personal characteristic
was defined by the differential treatment of which the person
complained [75].

d. The characteristic need not be ‘analogous’ to those listed in article 14
[80].

26. Status can be defined by law (Bah v UK app 56328/07 at [45]). In Clift v UK app
7205/07 the ECtHR appeared to accept that there was an ‘other status’ present
where:
… the distinction of which the applicants complained was between holders of
outline planning permission who benefited from new legislation and holders of
outline planning permission who did not [58]
It also noted that:
… a father whose paternity had been established by judicial determination, had
a resulting “status” which could be compared to putative fathers and mothers in
situations where paternity was legally presumed but not judicially determined.
[58]

27. In this case, focusing on 1989 Act, the status in issue is that of an adult child
whose parents continue to live together. In support of that submission, the
Appellant relies on the following matters:
a. The law has plainly drawn a line that distinguishes between those
whose parents who live together and those whose parents have
separated. Where the law draws such a line, it gives rise to a form of
status (Bah and Clift).
b. To the extent that the line defines the treatment, that does not prevent
article 14 applying (Stott). In any event, the line exists independently of
treatment. Society recognises that there is a distinction between
couples who co-habit and those who separate.
c. It should be remembered that a broad approach should be adopted to
article 14 (Stott).

28. Alternatively, focusing on the 1973 Act, the status is that of an adult child whose
parents have not divorced. The factors identified in the paragraph above apply.
In particular, society recognises that there is a distinction between couples
married and those who are divorced.

29. It is not surprising that legal status based on the marital status of parents comes
within the scope of article 14. It is well established that discrimination based on
legitimacy is objectionable (e.g. R (Johnson) v Secretary of State for the Home
Department [2017] AC 365 at [30]). If discrimination based on the fact that a
person’s parents are unmarried comes within the scope of article 14, it is difficult
to see why discrimination based on the fact that parents are cohabiting does not.

30. Indirect discrimination comes within the scope of article 14. In DH v Czech
Republic app 57325/00 the Grand Chamber of the ECtHR held that:
… a general policy or measure that has disproportionately prejudicial effects on
a particular group may be considered discriminatory notwithstanding that it is
not specifically aimed at that group [175]

31. Health status and disability are grounds of discrimination that come within the
scope of ‘other status’ for the purposes of article 14 (e.g. Kiyutin v Russia app
2700/10 at [57]).

32. The provisions challenged amount to indirect discrimination on the grounds of
health status and disability. As noted above, the provisions in question only
permit application for financial support in limited circumstances. One of those
is disability (C v F). As consequence, limiting access to that financial support so
that some disabled children cannot access that support is likely to have
‘disproportionately prejudicial effects’ on that group.

33. Again, it is unfortunate that the case law above appears not to have been cited
to Sir James Munby. It is submitted that the approach he adopted was flawed
and inconsistent with that case law. For example, there was no consideration of
the possibility of indirect discrimination.

Justification
34. In assessing any justification, it is the differential treatment that must be
justified, and not the treatment itself (Bank Mellat v HM Treasury (No 2) [2014]

AC at [27]) (See also R (DA) v Secretary of State for Work and Pensions [2020] 1 All
ER 573 at [54]).

35. In DA the Supreme Court held that challenges to benefit schemes based on
article 14 need to demonstrate that the difference in treatment is ‘manifestly
without reasonable foundation’ [58]. Despite strong dissents from Lord Kerr
and Lady Hale on this issue, that approach was upheld by a majority of the
Supreme Court in DA . However, Lord Wilson (with whom Lord Hodge and
Lord Hughes agreed) also noted:
The court will proactively examine whether the foundation is reasonable; and it
is fanciful to contemplate its concluding that, although the state had failed to
persuade the court that it was reasonable, the claim failed because the
complainant had failed to persuade the court that it was manifestly unreasonable.
[66]

36. The Appellant is not seeking benefits. However, it might be said that what is in
issue is a ‘social measure’. That would suggest that the is ‘manifestly without
reasonable foundation’ test applies [58]. In any event, the ‘manifestly without
reasonable foundation’ test is likely to produce the same result as a balancing
exercise (JCWI at [141]).

37. In Re McLaughlin [2018] 1 WLR 4250 the Supreme Court held that a benefits
scheme that discriminated on the basis of parent’s marital status was a
disproportionate interference with article 14 rights. Lady Hale noted that:
The purpose of the allowance is to diminish the financial loss caused to families
with children by the death of a parent. That loss is the same whether or not the
parents are married to or in a civil partnership with one another. [39]
Similarly, Lord Mance noted that:
A policy in favour of marriage or civil partnership may constitute justification
for differential treatment, when children are not involved. But it cannot do so in
relation to a benefit targeted at the needs and well-being of children. [52]

38. Similarly, in Johnson it was held that ‘very weighty reasons’ are required to justify
discrimination against children born outside of wedlock [30]. One reason for
that must be that their needs and interests are no different.

39. In Kiyutin the ECtHR held in the context of discrimination based on health status
that:
If a restriction on fundamental rights applies to a particularly vulnerable group
in society that has suffered considerable discrimination in the past, then the
State’s margin of appreciation is substantially narrower and it must have very
weighty reasons for the restrictions in question. [63]

40. The Appellant submits that there is no adequate justification for the measures in
question. In support of this submission, the Appellant relies on the following
matters:
a. The issue here is whether a fair balance has been struck in enabling
some adult children can obtain financial support from their parents but
not others (Bank Mellat, DA and JCWI). In that context it is submitted
that a particularly powerful justification is required. If that is required
in contexts where there is discrimination against the children of
unmarried parents, it is difficult to see why the same approach should
not be applied in relation to the children of married parents (Johnson).
b. Despite initial policy concerns that led to the enactment of the 1973
Act, it was plainly decided when the 1978 Act was enacted that certain
children should be able to apply for support from their parents. As a
consequence, those initial concerns about children not being able to
bring proceedings against their parents no longer apply. That is hardly
surprising. Exceptionally there may be good reason why adult children
have a claim against their parents. For example, certain disabled
children may struggle to maintain their lifestyle without support. In
addition, adult children may need support to continue their education.
It is reasonable to enable them to make a claim against their parents
rather than the state.

c. A right for adult children to apply for support when their parents did
not divorce was first enacted in section 27(6A) of the 1973 Act by the
1978 Act. That only enabled a limited group of children to apply for
support. It is unclear why that should have been the case. The Law
Commission report entitled Family Law: Illegitimacy appeared to
acknowledge that there were issues about the limitations of the 1973
Act. However, it did not wish to address all of those limitations as it
was concerned with illegitimacy. This demonstrates that little
consideration appears to have been given to the discrimination in issue.
It is an accident of history.
d. The Respondents submitted the legislative purpose in issue ‘is to
regulate financial provision on relationship breakdown or where there
has been financial instability’ [92]. That argument describes the
statutory scheme but not its justification. In particular, the problem
with the justification identified by the Respondents is that it does not
explain why those whose parents’ relatio nship has broken down are
more likely to need financial support. Matters such as disability are
likely to be equally important and mean that a child has important
needs whether or not his parents live together. There is a need to focus
on the needs of children in this context (McLaughlin).
e. The absence of a justification becomes clearer when the 1973 Act and
1989 Act are read together. These provisions recognise that adults may
need financial support from their parents. They provide a scheme for
the provision of financial support for adult children in need that is only
not available where a child’s parents continue to live together and have
not divorced. That means that it is appropriate to focus on whether
there is any distinction between the needs of children who can obtain
support and those who cannot. As noted, above there is no reason to
believe that issues such as whether parents have separated have any
implications for needs.
f. A further matter that demonstrates a lack of justification is the fact that
either of the Appellant’s parents could apply for support for him under
section 27(1) of the 1973 Act. It is difficult to see why the

Appellant is dependent upon his parents to apply for financial relief on
his behalf when he has capacity to apply to the Court himself.
g. The absence of a justification is also clear from the fact that the
Appellant could apply for support if one of his parents died. They
would no longer be living together. It is difficult to see why the
Appellant would have a greater need for support in those sad
circumstances.
h. The final matter that demonstrates the absence of any justification is
the fact that there is no justification for failing to order support no
matter how great the Appellant’s needs or how unreasonable his
parents are. This is particularly important as the case law demonstrates
that there is a need to focus on the needs of children rather than their
parents’ marital status when looking at justification for discrimination
(McLaughlin).
i. These matters mean that there is no justification for the differential
treatment whatever the standard of review. However, the Appellant
submits that his arguments are supported by the fact that a powerful
justification is required as indirect discriminati on on the grounds of
disability is in issue (Kiyutin).

Procedure in relation to grounds c. and d.
41. The order of McCombe LJ dated 18 December 2020 refused permission to
appeal in relation to grounds c. and d. The order stated:
In any event, it seems from the skeleton argument of 21 October 2020 that no
argument is advanced in support of ground c or d.

42. The Civil Procedure Rule 1998 (1998/3132) (‘CPR’) part 52.30 can be relied
upon where permission has been refused in relation to some but not all grounds
(White Book 2020 at [52.30.4]).

43. CPR part 52.30 provides that a final decision can be re-opened where:
a. It is necessary to do so in order to avoid real injustice;
b. The circumstances are exceptional and make it appropriate to reopen
the appeal; and

c. There is no alternative effective remedy.

44. In Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514 Sir Terence Etherton
VC held that:
… The paradigm case is where the litigation process has been corrupted, such as by
fraud or bias or where the judge read the wrong papers. Those are not, however, the only
instances for the application of CPR 52.17. The broad principle is that, for an appeal
to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must
be so grave as to overbear the pressing claim of finality in litigation. [65]

45. In Singh v Secretary of State [2019] EWCA Civ 1504 the appeal was reopened on
the basis that the judge who initially refused permission did not have key
submissions before him [24].

46. It is submitted that there are good reasons to reopen the application for
permission to appeal in relation to grounds c. and d. The Appellant relies on the
following matters:
a. Grounds c. and d. are essentially grounds that relate to the relief that
should be ordered if grounds a. and b. succeed. The Appellant submits
that issues of relief should be left until after the merits of the appeal
are determined. That is particularly important when the Crown was not
a party when McCombe LJ made his order. Section 5 of the Human
Rights Act 1998 requires notice to be given to the Crown before the
appeal is finally determined. At the time of drafting it is not known
what the Crown’s approach to relief will be.
b. The reasoning of McCombe LJ expressly stated that the Appellant had
raised no arguments in his skeleton in support of grounds c. and
d. In fact the submissions below demonstrate that there were
arguments. Although this was not addressed in the reasoning of
McCombe LJ, those arguments had merit. That is a ground for
reopening the permission decision for which there is precedent (Singh).

c. The need for finality in litigation is less pressing in this context where
the litigation has not been concluded.
d. There will be real injustice if the Court cannot provide appropriate
relief having found a violation of human rights. Where litigation is
brought raising human rights issues, the concern should be to bring
any violations to an end ( Anufrijeva v Southwark London Borough Council
[2004] QB 1124 at [53]).
e. There is no effective remedy for a failure to interpret the legislation
consistently with article 14. The Appellant will denied relief until the
state amends legislation to ensure compatibility, a process which could
take several years. That would cause his medical issues to continue. It
should be remembered that Dr Beckett referred to a ‘substantial and
ongoing risk to [the Appellant’s] health and life’.

47. It is accepted that CPR 52.30(7) provides that there is no right to an oral hearing
when applying to reopen a final decision. It suggests that such hearings are
exceptional. However, they clearly happen. The judgments in Lawal and Singh
both appear to have been delivered following oral hearings. The Appellant
submits that his application should be determined at the rolled up hearing
ordered by McCombe LJ in his order dated 18 December 2020.

48. In support of this submission the Appellant relies on the following matters:
a. The Court will hear full argument regarding grounds a. and b. As a
consequence, it will be in the best position to determine grounds c. and
d. There is an overlap between the grounds. For example, all grounds
require consideration of Parliament’s intent.
b. At this stage it is not possible to know the position of the Crown. That
is potentially important since the Crown may wish to argue in support
of grounds c. and d. and should be entitled to do so.
c. An oral hearing reflects the importance of what is in issue. The decision
regarding CPR 52.30 will determine whether the Appellant can obtain
any immediate relief for any violation of his Convention rights. The
importance of the issues supports the argument that an

oral hearing should be held ( R (Osborn) v Parole Board [2014] AC 1115
at [66] onwards).
d. There will be an oral hearing in any event in this matter. As a
consequence, the burden on the Court caused by determining issues at
an oral hearing is significantly less than normal.

Arguments before McCombe LJ in support of grounds c. and d.
49. The arguments below were included in the skeleton argument before McCombe
LJ. They have not been edited or expanded.

Statutory interpretation
50. Section 3(1) of the Human Rights Act 1998 (‘the 1998 Act’) provides that:
So far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights.

51. In Ghaidan v Godin-Mendoza [2004] 2 AC 557 Lord Nicholls held: 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. That would be to cross the
constitutional boundary section 3 seeks to demarcate and preserve. Parliament
has retained the right to enact legislation in terms which are not Convention -
compliant. [33]

52. In Gilham v Ministry of Justice [2020] 1 All ER 1 Lady Hale warned against:
… attaching decisive importance to the precise adjustment needed to the
language of the provisions [44].

53. Although it is not necessary for the Appellant to identify precise adjustments, he
submits that the most obvious way in which compatibility can be achieved is by
reading paragraph 2 of schedule 1 to the 1989 Act as applying without sub-
paragraph 4. In support of this submission the Appellant relies on the following
matters:

a. The primary objective of the 1989 Act is to expand the jurisdiction of
the courts to order financial provision for adult children. In particular,
the objective is to eliminate unjustified inconsistencies in the
jurisdiction of the courts. The proposed amendment furthers that
objective by eliminating discrimination.
b. The 1989 Act was enacted long before the enactment of the 1998 Act.
As a consequence, this is not a case where Parliament enacted
legislation knowing that it was inconsistent with the Convention.

54. Sir James Munby essentially concluded that the Appellant’s arguments are
contrary to Parliamentary intent [59]. However, as the submissions above
demonstrate, the objective of the 1989 Act was not to create discrimination. As
the submissions regarding justification demonstrate, the cause of the
discrimination is essentially historic mistake.

Inherent jurisdiction
55. In Spencer v Spencer [2019] Fam 66 the Court of Appeal concluded that the courts’
inherent jurisdiction should be invoked and extended to a new area on a
‘principled’ basis where:
a. Current statutory provisions provide no remedy [46].
b. It is in the interests of justice for the inherent jurisdiction to provide a
remedy [47].
c. Public interest considerations support the exercise of the inherent
jurisdiction [47].

56. If it is found that article 14 would be violated if the Appellant is unable to apply
for financial support but the relevant provisions provide no jurisdiction, that
suggests that the courts’ inherent jurisdiction should be invoked as the criteria
in Spencer are met. It is plainly in both the interests of justice and the public
interest for there to be compliance with article 14. Parliament mandated
compliance with article 14. Although the finding that the legislation cannot be
read compatibly implies that P arliament has not established a jurisdiction that
enables the Appellant to apply for financial support, the legislative history set

out above demonstrates that Parliament gave no thought to whether it was
necessary to avoid violating article 14.

57. The reasoning of Sir James Munby regarding the inherent jurisdiction was based
on a finding that there was no violation of article 14. As a consequence, it
provides no reason to reject the arguments above.

Respondents’ submissions regarding grounds c. and d.
58. The Respondents argue that the Appellant’s submissions regarding statutory
interpretation ignore Parliament’s express intent. This appears to be a reference
to the express language used in the relevant statutory provisions. However, the
express language is not determinative. In Ghaidan Lord Nicholls commented
that:
… the mere fact the language under consideration is inconsistent with a
Convention-compliant meaning does not of itself make a Convention -compliant
interpretation under section 3 impossible. [32]
So it is possible to read in or read out words. The critical point in this case is that
Parliament has plainly recognised the rights of children by gradually increasing
their rights to maintenance. The reading down proposed by the Appellant is not
inconsistent with a ‘fundamental feature’ of the statute because it is consistent
with that gradual expansion of rights. Further, Parliament can be presumed not
to have intended discrimination (( R (Miller) v Secretary of State [2018] AC 61 at
[83]).

59. The Respondents argue that the inherent jurisdiction is ousted by the statutory
scheme. The argument that inherent jurisdiction is ousted by legislation is
inconsistent with Spencer , which acknowledges that the inherent jurisdiction
operates side by side with legislation and provides a remedy in certain
circumstances when legislation provides none. Parliament has demonstrated the
importance of compliance with the Convention by imposing a powerful
interpretative obligation (Ghaidan at [32]). That implies that the Court should be
reluctant to conclude that its inherent jurisdiction cannot be exercised to ensure
compliance with the Convention.

Conclusions
60. In light of the matters above, the Appellant submits that his appeal should be
allowed. Either:
a. It should be declared that the 1989 Act can be read as permitting him
to make an application; or
b. It should be declared that the High Court’s inherent jurisdiction
should be invoked; or
c. A declaration of incompatibility should be made.
d. An urgent determination of the Appellant’s application for interim
relief should be made if either declaration a. or b. is made. Once it is
established that there is arguable jurisdiction, interim relief can be
ordered (Moses-Taiga v Taiga [2006] 1 FLR 1074 at [35]). Interim relief
is obviously urgent in this case in light of the substantial risks to the
Appellant’s health. The Appellant’s medical evidence demonstrates
that those risks are ongoing and need to be addressed urgently.
e. The matter should be remitted to the High Court if either declaration
a. or b. is made.

61. Sir James Munby made an order regarding proceedings under the Trusts of Land
and Appointment of Trustees Act 1996. That order followed his judgment
regarding article 14. King LJ stayed that order pending the determination of
permission to appeal or further order in her order dated 11 November 2020.
There has been no further order. To the extent that the appeal is allowed, the
provisions of the order regarding the 1996 Act should be set aside. The
Appellant should be permitted to decide whether to commence litigation under
the 1996 Act on the basis of a correct understanding of his rights to apply for
financial support.

Chronology
18 July 2020 Application comes before Mostyn J
20 July 2020 Mostyn J makes an order allocating matters to Sir James
Munby. He directs a case management hearing on 28 July
2020.
27 July 2020 Written submissions from Appellant

27 July 2020 Written submissions from Respondents
28 July 2020 Case management hearing
4 August 2020 Written submissions from Appellant
10 August 2020 Written submissions from Respondents
12 August 2020 Hearing to determine jurisdiction
14 August 2020 Written submissions from Appellant
16 August 2020 Written submissions from Respondents
24 August 2020 Written submissions from Appellant
26 August 2020 Written submissions from Respondents
8 September 2020 Draft judgment handed down
10 September 2020 Written submissions from Respondents
15 September 2020 Written submissions from Appellant
16 September 2020 Written submissions from Respondents
21 September 2020 Written submissions from Appellant
22 September 2020 Written submissions from Appellant
30 September 2020 Judgment delivered

HUGH SOUTHEY QC
MATRIX
25 January 2021

EXHIBIT 2

IN SUBMISSION TO THE JUSTICE COMMITTEE

FAIZ SIDDIQUI

- and -

THE UNITED KINGDOM OF
GREAT BRITAIN AND NORTHERN IRELAND
Author

State party

FACTUAL ATTACHMENT

This factual attachment is primarily based on the author’s Counsels’ own research on the European e-Justice Portal. The debt for this international
comparison table therefore goes to Expert human rights Counsel at Brick Court Chambers.
It appears from this factual information that the difference in treatment identified by the author’s Counsel is not reflected in the law and practice of
any other State Party in the world. This demonstrates the unjustified nature of that difference in treatment, which is discri minatory, as set out the
author’s solicitors’ letter.

African State

State Summary of legal position Difference of
treatment based on
parental
relationship
status?
South Africa Parents are ‘obliged to support or maintain’ their children, and ‘[n]o distinction is drawn between minor
and major children in regard to the duty’, nor is there a distinction between ‘legitimate and illegitimate’
children: Hoffmann v Herdan NO 1982 (2) SA 274 (T), which was cited with approval in Bursey v Bursey
1999 (3) SA 33 (SCA), which was in turn recently quoted with approval at para 9 of the judgment of
Acting Judge of Appeal Meyer in Z v Z [2022] ZASCA 113.
No.
Asia-Pacific State

State Summary of legal position Difference of
treatment based on
parental
relationship status?
Cyprus Parents owe adult children a maintenance obligation if they are unable to support themselves after
reaching adulthood, for example due to physical or mental illness, military service or higher education.
Adult children can submit an application to court for maintenance owed them.
No.
Eastern European States

State Summary of legal position Difference of
treatment based on
parental
relationship status?

Bulgaria Parents owe adult children a maintenance obligation if they are unfit for work and cannot subsist on
their own property, if payment of that maintenance does not cause
the parents particular difficulties. Adult children can bring personal actions for maintenance owed
them.
No.
Croatia Parents must support an adult child who is unfit for work due to severe and permanent illness, or
disability for as long as such incapacity exists.
Adult children can lodge a claim with the court for maintenance owed them.
No.
Czechia Parents owe adult children a maintenance obligation unless and until they are realistically able to
support themselves or the maintenance obligation transfers to another, eg through marriage. The
amount of maintenance is to ensure the child’s standard of living is substantially identical to that of
their parents.
Adult children may petition the court for maintenance owed them.
No.
Estonia Parents owe adult children a maintenance obligation if the children are not capable of supporting
themselves. This is part of a reciprocal maintenance obligation by which adult children, parents and
grandparents are mutually bound to provide for each other.
Adult children can file an action for maintenance owed them.
No.
Hungary Parents owe adult children aged 25 or over a maintenance obligation where it is exceptionally justified,
unless the adult child is regarded as undeserving of maintenance.
Adult children may request a court decision on maintenance owed them.
No.
Latvia Parents owe adult children a maintenance obligation until they are able to support themselves. Adult
children can submit an application to court for maintenance owed them.
No.
Lithuania Parents owe adult children a maintenance obligation until they are 24 years of age, if they are
enrolled in certain types of education programmes.
Adult children may file a court action for maintenance owed them.
No.
Poland Parents owe adult children a maintenance obligation so long as they are unable to provide for
themselves, eg due to illness or disability.
Adult children may apply to the court for maintenance owed them.
No.
Romania Parents owe adult children a maintenance obligation while they continue their studies, but not beyond
the age of 26.
No.

Adult children may apply to the court for maintenance owed them.
Slovakia Parents owe adult children a maintenance obligation so long as they are unable to support themselves.
Adult children may apply to the court for maintenance owed them.
No.
Slovenia Parents owe adult children a maintenance obligation while they continue their studies, but not beyond
the age of 26.
Adult children may apply to the court for maintenance owed them.
No.
Latin American and Caribbean State

State Summary of legal position Difference of
treatment based on
parental
relationship status?
El Salvador According to information provided to the Organization of American States Network of Hemispheric Legal
Cooperation in the Area of Family and Child Law, and available on the website of the Network, the
parental obligation to maintain children persists after the age of majority when the children are people
with disabilities.
No.

Western European and other States

State Summary of legal position Difference of
treatment based on
parental
relationship
status?
Austria Parents owe adult children a maintenance obligation so long as they are unable to support themselves.
Adult children may apply to the guardianship court for
No.

maintenance owed them.
Belgium Two types of obligations parents owe to adult children
• Obligation 1: if adult child’s education and training are still ongoing, parents have obligation to
pay for housing, upkeep, health, supervision, education and training, and development (Art 203
Civil Code)
• Obligation 2: irrespective of age, parents have a maintenance obligation based on parenthood
(Arts 205, 207, 208 and 353-14 Civil Code)
Adult children can bring personal actions for maintenance owed them.
No.
Canada The Court of Queen’s Bench of Alberta in Ryan v Pitchers 2019 ABQB 19 found the Alberta Family
Law Act to be discriminatory on the basis of disability and parental relationship status in violation of
section 15(1) of the Canadian Charter of Rights and Freedoms and remedied the violation. The Act had
provided for parental maintenance for adult children who could not withdraw from their parents’ charge
due to being in full -time education. However, it contained no equivalent provision for adult children
who could not withdraw from their parents’ charge due to disability. Further, the Divorce Act provided
for maintenance where the parents of adult children with disabilities were either married or divorced.
There was no equivalent provision for children whose parents had never been married. The Alberta
legislature enacted the Family Statutes Amendment Act 2018 to remove this discrimination. Note that the
provisions of the Convention ‘extend to all parts of federal States without any limitations or exceptions’
under Article 4(5).
No.
Finland Parents may be obliged to make provision for reasonable education costs where ‘considered
reasonable’.
No.
France Parents owe adult children two types of maintenance obligation:
• Where the adult child is not financially independent, parents have an obligation of upkeep and
education to provide their child with the necessary conditions for their development and
education
• Once the obligation of upkeep and education has ceased, the general rules for maintenance
obligations apply, by which family members with means to do so must meet the needs of other
family members
Adult children can apply to the court for maintenance owed them.
No.

Germany Parents owe adult children two types of maintenance obligation• Where the adult child is not financially independent, parents have an obligation of upkeep and
education to provide their child with the necessary conditions for their development and
education
• Once the obligation of upkeep and education has ceased, the general rules for maintenance
obligations apply, by which family members with means to do so must meet the needs of other
family members
Adult children can apply to the court for maintenance owed them.
No.
Greece Parents owe adult children a maintenance obligation while they are studying or attending a higher
education or vocational training course, and they are unable to work due to their studies, and have no
personal assets from which they can meet their maintenance requirements.
Adult children can apply to the court for maintenance owed them.
No.
Ireland Parents owe a maintenance obligation to adult children of any age who are dependent due to disability.
Usually the applicant in a maintenance case is the parent caring for a child, although applicants can include
children in their own right.
No.
Italy Parents owe adult children three types of maintenance obligation:
- Adult children with serious disabilities: the rules for children who are minors apply, such that regular
maintenance is ordered to be paid in accordance with inter alia the child’s needs and standard of
living, and the parents’ financial resources
- Adult children who are not financially independent: the judge may order one or both parents to pay
regular maintenance. If a child who has reached majority becomes financially independent, then
again experiences financial hardship later, this obligation does not re-arise.
Other adult children: a duty of family solidarity to provide material assistance to persons unable to
support themselves.
No.
Luxembourg Parents owe children a maintenance obligation to contribute to their support and upbringing in
proportion to their means, which obligation does not automatically stop when the child reaches
adulthood.
Adult children may apply to the family court for maintenance owed them.
No.

Malta Parents owe adult children a maintenance obligation where it is not reasonably possible for the
children to maintain themselves adequately on account, inter alia, of physical or mental disability.
Adult children may file an application for maintenance owed them.
No.
Portugal Adult children may apply to the court for maintenance owed to them in certain circumstances. No.
Scotland Adult children can apply for maintenance in two types of situations:
- Age 18 to 25 – if the child is in higher education (e.g. University) or specialized training, they can
personally raise an action for ailment in a Scottish Sheriff Court under the Family Law (Scotland)
Act 1985.
- Post-Education/Over 25 – In exceptional circumstances such as disability, the court can order
support if “special circumstances” like a physical or mental disability create a continued need.
No.
Spain Parents owe children a maintenance obligation so long as they are not financially independent,
have not completed their education, or are out of work through no fault of their own.
No.
Sweden Parents owe adult children a maintenance obligation generally until age 18 or to complete
secondary education.
Adult children may apply to the court for maintenance owed to them.
No.
The Netherlands Parents owe adult children a maintenance obligation if they are in need and not able to take of
themselves, for example due to mental or physical disability.
Adult children may apply for a court ruling.
No.

EXHIBIT 3

Court of Queen’s Bench of Alberta

CitationRyan v Pitchers, 2019 ABQB 19
Date: January 10, 2019
Docket: FL01 26413
Registry: Calgary
Between:

Christina Ryan
Applicant
- and -

Christopher Pitchers
Respondent

Reasons for Decision
of the
Honourable Madam Justice C.S. Phillips

Introduction
[1] The parties were involved in a relationship that ended in 2001. They never married and
are the parents of a now adult daughter who is disabled. The father does not dispute that his
daughter has very serious disabilities resulting from Down syndrome, cerebral palsy, and other
issues.
[2] The mother brought an application challenging the constitutionality of the definition of
child in section 46(b) and in particular section 46(b) (ii) of the Alberta Family Law Act , which
disentitled her daughter to child support now that she was the age of majority and was not in full-
time attendance at school. The mother argued that the definition of child infringed on her disabled
adult child’s right to equal protection and equal benefit of the law guaranteed by section 15(1) of
the Charter. The Attorney General of Alberta elected not to appear at the hearing, since the
government was in the process of amending the legislation to extend the definition of child to
include children such as the one in this case.
2019 ABQB 19 (CanLII)

Page2

[3] Given the pending legislative change, the father encouraged me to wait for the legislature
to take action. I declined to do so, as there was no guarantee the legislation would be retrospective
and thereby applicable to the disabled adult child in this case. The mother also applied for
retroactive and ongoing child support for her disabled adult daughter, since the
daughter’s monthly expenses exceeded her AISH entitlements. I declared the definition of child
unconstitutional and then awarded retroactive and prospective child support. I gave oral reasons
with respect to the amount of child support awarded at the hearing. I said I would provide written
reasons on the constitutional issue. These are the reasons for my decision on the
unconstitutionality of section 46(b) (ii) of the Alberta Family Law Act, as it stood prior to
December 11, 2018.

Legislative provisions and amendment
[4] At the time of the application, section 46(b) of the Family Law Act, SA 2003, c F-4.5 (the
“Act”) contained the following definition of child:
(b) “child” means a person
(i) who is under the age of 18 years, or
(ii) who is at least 18 years of age but not older than 22 years of age, and is unable
to withdraw from his or her parents’ charge because he or she is a full -time
student as determined in accordance with the prescribed guidelines;
[5] The child in this case turned 18 in April 2017 and completed school in June 2017;
however, she is unable to withdraw from her parents’ charge on account of her disability. She is
not a full-time student. If her parents had been married, she would continue to qualify for child
support under the definition of “child of the marriage” in section 2(1) of the Divorce Act , RSC
1985, c 3 (2nd Supp):
“child of the marriage” means a child of two spouses or former spouses who, at
the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of
illness, disability or other cause, to withdraw from their charge or to obtain the
necessaries of life;
[6] The Alberta legislature recognized the inequities resulting from these different
definitions. On December 11, 2018, the definition of child in the Family Law Act was amended
by section 1(2) of Bill 28, the Family Statutes Amendment Act 2018. The definition of child now
aligns with that found in the Divorce Act. The new definition reads as follows:
(b) “child” means
(i) a person who is under the age of 18 years, or
(ii) a person 18 years of age or older who is under his or her parents’ charge and is
unable by reason of
(A) illness,
(B) disability,
2019 ABQB 19 (CanLII)

Page3

(C) being a full-time student as determined in accordance with the prescribed
regulations, or
(D) other cause
to withdraw from his or her parents’ charge or to obtain the necessaries of life;

Equality analysis
[7] Section 15 of the Canadian Charter of Rights and Freedoms sets out the constitutional
guarantee of equality before and under the law and equal protection and benefit of the law:
15(1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
[8] The most recent section 15 case law, in particular the Supreme Court of Canada’s decision
in Withler v Canada (Attorney General) , 2011 SCC 12, explains that the section 15 analysis
requires a substantive contextual approach that takes into account the full context of the claimant
group’s situation, the actual impact of the law on that situation, and whether the impugned law
perpetuates disadvantage or negative stereotypes about the group.
[9] The ultimate question is whether the impugned law violates the “animating norm” of
section 15(1); that is, of substantive equality. To determine whether the law violates this norm,
the matter must be considered in the full context of the case, including the law’s real impact on
the claimants and members of the group to which they belong.
[10] Discrimination may be established by showing that the impugned law, in purpose or in
effect, perpetuates prejudice and disadvantage to members of a group on the basis of one of the
personal characteristics in section 15(1). Perpetuation of disadvantage typically occurs when the
law treats a historically disadvantaged group in a way that exacerbates the situation of the group.
The contextual inquiry must consider the purpose of the provision that allegedly discriminates,
viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit
and why? The court must consider whether the lines dra wn between groups that benefit and
groups that do not are appropriate, having regard to those impacted and the objects of the scheme.
[11] In examining whether the effect of the law is negative, the focus of the inquiry is on the
actual impact of the impugned law, taking into account social, political, economic and historical
factors concerning the group. The differential treatment may be revealed as discriminatory
because of the prejudicial impact of the impugned law.
[12] At paragraph 30, the court in Withler set out the two-part test for assessing a section
15(1) claim:
1) Does the law create a distinction based on an enumerated or analogous ground?
2) Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
2019 ABQB 19 (CanLII)

Page4

[13] The court cautioned against an overly technical approach, quoting at para 51 from
McLachlin CJ in Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004
SCC 78:
Whatever framework is used, an overly technical approach to s. 15(1) is to be
avoided. In Andrews, supra, at pp. 168-169, McIntyre J. warned against adopting
a narrow, formalistic analytical approach, and stressed the need to look at equality
issues substantively and contextually. The Court must look at the reality of the
situation and assess whether there has been discriminatory treatment having
regard to the purpose of s. 15(1), which is to prevent the perpetuation of pre-
existing disadvantage through unequal treatment.
[14] I accept this caution and reject the father’s assertion that one must look only within the
four corners of the legislation to assess the alleged discrimination. I adopt the reasoning and
analysis of Justice Sullivan in Coates v Watson, 2017 ONCJ 454.
[15] Furthermore, I find the cases relied upon by the father are distinguishable. LMM v WLK,
2007 ABQB 764 and Young v Smith, 2013 ABQB 521 were not equality cases. In those
decisions, the court considered the government’s rationale for limiting child support to full-time
students over the age of 18. The court concluded that the legislature assumed provincial support
programs would meet the needs of disabled children. The question of whether the definition of
child violated the equality guarantee under section 15(1) was not before the court in those cases.
[16] In R v S(S), [1990] 2 SCR 254 the issue was the constitutionality of the Ontario
government’s decision not to implement an alternative measures programs (that is, measures
other than judicial proceedings to deal with a young person alleged to have committed a criminal
offence). The court rejected the argument that Ontario’s failure to implement the discretionary
program was discrimination based on province of residence. The court held that the division of
powers permits differential treatment based upon province of residence. The unequal treatment
stemmed solely from the exercise by the provincial legislature of its legitimate jurisdictional
powers. Furthermore, the court found that province of residence was not a sufficiently personal
characteristic upon which to base a discrimination claim. By contrast, the distinction that is
alleged to be discriminatory in the case at bar is based upon a personal characteristic (disability)
that is an enumerated ground under section 15(1) of the Charter and a further personal
characteristic (marital status) that has been found to be an analogous ground.
[17] In Penner v Danbrook, [1992] 4 WWR 385 (Sask CA) the court considered the definition
of child in the Saskatchewan Family Maintenance Act, which provided for support for children
who could not withdraw from their parents’ charge by reason of disability, but not for children
who could not withdraw from their parents’ charge for any other cause, including continuing
education. The applicant mother argued that the provincial legislation was less generous than the
Divorce Act provision for child support, resulting in discrimination based on marital status. The
court rejected the mother’s section 15 argument on the grounds that the unequal treatment
stemmed solely from the l egitimate exercise of the division of powers and explained that the
Charter could not be used to challenge the proper exercise of provincial jurisdiction, even if that
exercise of jurisdictional power resulted in distinctions between similar federal and provincial
legislation. I note that the child in Penner was not a member of a historically disadvantaged
group, namely people with disabilities, which significantly changes the analysis for our purposes.
2019 ABQB 19 (CanLII)

Page5

1) Did section 46(b) and in particular section 46(b) (ii) of the Act, prior to its
amendment, on its face or in its effect create a distinction based on an enumerated
or analogous ground?
[18] In determining whether a law creates a distinction based on an enumerated or analogous
ground, the focus must be on the effect of the law and the situation of the claimant group. In our
case, up until December 11, 2018, the definition of child in the Act created a distinction between
adult children whose dependency arose from continuing full -time education and adult children
whose dependency arose from disability. If an adult child was unable to attend full -time school
by reason of disability, that adult child was no longer eligible for support. While the definition of
child may have been neutral on its face, it had a disproportionately negative impact on disabled
adult children. The benefit of the law, namely child support, was not equally available to disabled
adult children or their caregiver parent, based on the enumerated ground of disability.
[19] Furthermore, while the Act did not expressly differentiate between disabled adult
children of previously-married parents and disabled adult children of never-married parents, the
children of previously-married parents had separate recourse under the Divorce Act. Thus, in its
effect on the group, the Act created a further distinction between disabled adult children of never-
married parents and disabled adult children of previously- married parents; a distinction based
on the analogous ground of marital status of the parents.
[20] The Respondent submits that I should not compare the Family Law Act and the Divorce
Act, as each piece of legislation is valid within its respective sphere of authority. I find the
provisions of the Divorce Act to be relevant in the analysis of the full context of the case, which
is the proper means of assessing substantive equality. Until the legislative amendment on
December 11, 2018, adult children in Alberta who could not withdraw from their parents’ charge
by reason of disability were ineligible for child support under the Act. The disabled adult children
of previously-married parents, however, had recourse to the Divorce Act, resulting in an advantage
over disabled adult children whose parents had never married.
[21] In 2010, the legislature amended section 7 of the Act, which sets out the rules of parentage.
The amendment added section 7(6), abolishing all distinctions between the status of a child born
inside marriage and a child born outside of marriage. This 2010 amendment suggests the Alberta
legislature sought to ensure the same benefits and presumptions would be available to children of
married parents as to children of unmarried parents. While the definition of child did not in itself
make this distinction, the effect of the Act, as described above, has been to disadvantage the
disabled adult children of unmarried parents, contrary to the stated intentions of the provincial
legislature.
2) Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
[22] In this case, the Act provided for child support for some adult children but not others. The
underlying assumption behind the legislation, as explained by my colleagues in LLM v WLK and
Young v Smith, was that a child would be financially independent at the age of 18 unless that child
was in full-time school. The Act did not contemplate other reasons for failing to achieve financial
independence by the age of majority. Thus, the effect of the Act for those adult children who could
not attend school at all or who may have needed the accommodation of part -time schooling on
account of their disability was to deny them the benefit of financial support. The impact of the Act
was to exacerbate the economic difficulties faced by these disabled adult
2019 ABQB 19 (CanLII)

Page6

children who were unable to withdraw from their parents’ charge. Furthermore, the distinction
between the provincial and federal regimes meant that a disabled adult child’s access to support
was governed by the parent’s marital status.
[23] On the facts of this case, the evidence shows that provincial social assistance is
insufficient to meet the needs of the parties’ disabled adult daughter. She will suffer unless she
can turn to her parents for support. If the mother supports her and the father does not, this imposes
an unfair burden on the mother providing support - a further inequality arising from the parties’
marital status.
[24] I find that prior to December 11, 2018 the effect of the Act was to widen the gap between
the historically disadvantaged group of disabled adult children and able adult children who could
pursue full-time education. It also widened the gap between disabled adult children who were
born within marriages and those who were born outside of marriage, a formerly marginalized
group.
[25] The former definition of child in the Act had the effect of reinforcing, perpetuating and
exacerbating disadvantage on the basis of the enumerated ground of disability and based on the
analogous ground of marital or family status. When state conduct widens the gap between a
historically disadvantaged group and the rest of society, it discriminates. I repeat Justice
Sullivan’s comment at paragraph 185 of Coates: “The provincial child support regime does not
need to mirror the federal law, but it cannot further disadvantage a whole host of vulnerable
disadvantaged groups.”
[26] The government bears the burden of showing that a breach of Charter rights is justified
under section 1. In this case, the government elected not to appear since it was amending the
legislation. As such, the section 1 justification has not been made out.

Conclusion
[27] For all of the foregoing reasons, I conclude that section 46(b), and in particular section
46(b) (ii) of the Family Law Act , as it stood prior to the December 11, 2018 amendment,
discriminated against disabled adult children generally, and in particular, the disabled adult
children of unmarried parents, thus violating section 15(1) of the Charter. Also, section 46(b) (ii)
of the Act is not saved by section 1 of the Charter.
[28] For the purposes of this application, I apply the same remedy as Justice Sullivan at
paragraphs 226 and 229 of Coates and read in, as appropriate, the language from the definition of
“child of the marriage” in the Divorce Act. The Respondent father is obliged to pay child support
for his disabled adult daughter in the amount set out in the reasons for my oral decision.

Heard on the 5th day of November, 2018.
Dated at Calgary, Alberta this 10th day of January, 2019.

C.S. Phillips
J.C.Q.B.A.
2019 ABQB 19 (CanLII)

Page7

AppearancesJanet E. Russell, QC
for the Applicant
Scott D. Armstrong
for the Respondent
2019 ABQB 19 (CanLII)

EXHIBIT 4

The Right to Support for Adult Children with Disabilities | 24/02/2021, 23:47
https://ablawg.ca/2019/02/22/the -right-to-support-for-adult-children-with-disabilities/ Page 1 of 6

The Right to Support for Adult Children with Disabilities
Posted on February 22, 2019 by Jennifer Koshan

ByJennifer Koshan and Jonnette Watson Hamilton

PDF VersionThe Right to Support for Adult Children with Disabilities

Case and Bill Commented OnRyan v Pitchers, 2019 ABQ B 19 (CanLII); Bill 28, the Family Statutes
Amendment Act 2018

As Laura Buckingham noted in an ABlawg post in December 2018, Alberta’s Bill 28, the Family Statutes
Amendment Act 2018, made three key amendments:

creating legislated rules for property division for separating common-law couples;
closing a gap in child support legislation for adult children with disabilities; and
repealing the Married Women’s Act, RSA 2000, c M-6.

The second of these amendments was recently considered in Ryan v Pitchers, 2019 ABQ B 19 (CanLII). In this
case, a mother brought a constitutional challenge to the pre-amendment version of the Family Law Act, SA
2003, c F-4.5 (FLA), which did not allow disabled children of unmarried parents to obtain child support once
they turned 18 and were not attending school full-time. The mother’s argument was that the definition of child
in the FLA violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms. The
government did not defend the case given the pending legislative amendment in Bill 28, and although the father
raised constitutional counter -arguments, the mother’s claim was successful.

Although the decision may seem like a foregone conclusion, the section 15 analysis of Madam Justice Carolyn
Phillips has some interesting features that we will comment on in this post.

The Ryan v Pitchers Decision

Christina Ryan and Christopher Pitchers never married and are the parents of an adult daughter (not named)
who has “very serious disabilities resulting from Down syndrome, cerebral palsy, and other issues” (at para 1).
Ryan applied for retroactive and ongoing child support from Pitchers because their daughter’s monthly
expenses exceeded what she was entitled to under the Assured Income for the Severely Handicapped Act, RSA
2000, c A-45 (AISH). When the case was heard in November 2018, the father argued that the Court should
simply await the pending change to the law. However, Justice Phillips noted that the legislation may not be
retrospective and decided to proceed with the mother’s constitutional challenge to the FLA.

Under the old version of the FLA, “child” was defined as follows under s 46(b):

(b) “child” means a person

(i) who is under the age of 18 years, or

The Right to Support for Adult Children with Disabilities | 24/02/2021, 23:47
https://ablawg.ca/2019/02/22/the -right-to-support-for-adult-children-with-disabilities/ Page 2 of 6

(ii) who is at least 18 years of age but not older than 22 years of age, and is unable to withdraw from
his or her parents’ charge because he or she is a full-time student as determined in accordance with
the prescribed guidelines… (emphasis added)

The daughter of Ryan and Pitchers turned 18 in April 2017, completed high school that same year, and is no
longer a full-time student. She was therefore not entitled to support based on the definition of “child” in the
FLA.

If Ryan and Pitchers had been married and were divorcing, their daughter would have been entitled to child
support under the Divorce Act, RSC 1985, c 3 (2nd Supp), which defines “child” as follows in s 2(1):

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other
cause, to withdraw from their charge or to obtain the necessaries of life… (emphasis added)

Ryan argued that the definition of child in the FLA violated section 15 of the Charter in that it discriminated
against her daughter on the basis of her disability and on the basis of her parents’ marital status.

In assessing this claim, Justice Phillips relied heavily on the Supreme Court of Canada’s 2011 decision in
Withler v Canada (Attorney General), 2011 SCC 12 (CanLII). Withler is often seen as a companion case to R v
Kapp, 2008 SCC 41 (CanLII), where the Court established the following two-part test for section 15 claims:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp at para 17
and Withler at para 30).

While many lower courts have continued to use the Kapp / Withler test, the Supreme Court of Canada noted
several problems with that test in its subsequent section 15 decisions. One of those problems is the focus on
“creating a distinction” in the first step, which seems to overlook adverse effects discrimination: Quebec
(Attorney General) v A, 2013 SCC 5 (CanLII) at paras 323-333 (Quebec v A); Kahkewistahaw First Nation v
Taypotat, 2015 SCC 30 (CanLII) at paras 19-20 (Taypotat); Quebec (Attorney general) v Alliance du personnel
professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) at para 25 (APP). The first
step of the current test asks: “does the impugned law, on its face or in its impact, create a distinction based on
enumerated or analogous grounds” (APP at para 25, emphasis added), making it clear that adverse effects
discrimination is caught by section 15.

Despite using an out-of-date formulation of the test for discrimination that focused attention on direct
discrimination, Justice Phillips did remark on the need to pay attention to the impact of the challenged law.
Indeed, she characterized the law as an example of adverse effects discrimination, recognizing its facial
neutrality on characteristics other than age or student status, and its disproportionate negative effect on
disabled adult children (at para 18).

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Justice Phillips also noted that section 15 analysis should be contextual, with the context including “the law’s
real impact on the claimants and members of the group to which they belong”, considering “social, political,
economic and historical factors concerning the group” (at paras 9 and 11). Put another way, the court must
determine “whether the lines drawn between groups that benefit and groups that do not are appropriate, having
regard to those impacted and the objects of the scheme” (at para 10). Although Justice Phillips does not cite
Withler in this part of her decision, it was Withler that emphasized line drawing between the intended
beneficiaries and the excluded group ( Withler at para 67).

Withler also revisited the approach to comparative analysis under the first step of the test for section 15 of the
Charter, acknowledging some of the critiques that had been made of the so-called “mirror comparator”
approach. Under that approach, in assessing whether there is a distinction based on a protected ground, the
claimant is compared to the group that ““mirrors the characteristics of the claimant (or claimant group) relevant
to the benefit or advantage sought” except for the personal characteristic on which the claim was based”
(Withler at para 49, quoting from Hodge v Canada (Minister of Human Resources Development), 2004 SCC 65
(CanLII) at para 23). Withler advocated a more flexible approach to comparison, stating: “[i]t is unnecessary to
pinpoint a particular group that precisely corresponds to the claimant group except for the personal
characteristic or characteristics alleged to ground the discrimination” (at para 63).

Justice Phillips did not discuss Withler’s treatment of comparator groups in her analysis of the first step of the
test from Kapp / Withler. However, she did use two different comparator groups, one within the FLA and one
between the FLA and the Divorce Act, as part of her analysis of a direct discrimination claim.

First, she found that the definition of child in the FLA “created a distinction between adult children whose
dependency arose from continuing full-time education and adult children whose dependency arose from
disability. If an adult child was unable to attend full-time school by reason of disability, that adult child was no
longer eligible for support” (at para 18). She also characterized the law as an example of adverse effects
discrimination, as noted above – “[w]hile the definition of child may have been neutral on its face, it had a
disproportionately negative impact on disabled adult children” (at para 18).

This analysis within the four corners of the challenged provisions is confusing in its melding of direct and
adverse effects discrimination. It also points to the difficulties in using mirror comparators. Justice Phillips’ first
point is that the FLA created a distinction between two groups that was indicative of direct discrimination,
flowing from a mirror comparator analysis between adult children who are eligible for child support because
they are full-time students and adult children who are not eligible because they are persons with disabilities. But
the real problem with the FLA is the adverse effects discrimination; the FLA did not take disability and the
possible resulting dependence on parents into account, regardless of whether adult children attending school
full-time received benefits or not.

Second, Justice Phillips also found that the FLA “created a further distinction between disabled adult children of
never-married parents and disabled adult children of previously-married parents; a distinction based on the
analogous ground of marital status of the parents” (at para 19). Disabled adult children of never-married
parents were ineligible for child support under the FLA, while disabled adult children of married parents were
(and still are) eligible for support under the Divorce Act.

This is also an interesting aspect of the decision. Justice Phillips acknowledged previous case law where the

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comparison between statutes at the provincial and federal level was found to be incapable of grounding a
section 15 claim based on federalism principles. In Penner v Danbrook, 19 9 2 CanLII 8274 (SK CA), [1992] 4
WWR 385, the Saskatchewan Court of Appeal found that the failure of the child support regime in that province
to include adult children who were full-time students was not discriminatory, even though those children would
be eligible for support under the Divorce Act. Justice Phillips distinguished Penner v Danbrook on the basis
that the child in question in that case was not a member of a historically disadvantaged group, as are adult
children with disabilities. However, that is a question going to the second step of the test for discrimination, not
the first. Nonetheless, Justice Phillips found support for her analysis in Coates v Watson, 2017 ONCJ 454
(CanLII), which held that a legislative scheme in Ontario similar to the FLA discriminated against adult children
with disabilities based in part on the argument that disabled children of divorced parents have the statutory
right to child support. However, the decision in Coates v Watson was primarily an adverse effects
discrimination decision, with the court holding that the impugned legislation in that case “discriminates
because of its effects, in context, on groups already marginalized by systemic inequalities” (at para 187).

These cases present a challenge. Any distinction in eligibility for child support based on marital status flows
from the fact that the Divorce Act only applies to previously married couples – the FLA applies to both married
and unmarried couples as far as child support is concerned. And one cannot challenge the Divorce Act’s
exclusion of unmarried couples without coming up against the Constitution Act, 1867, which gives exclusive
jurisdiction over “Marriage and Divorce” to the federal government under section 91(26). Penner v Danbrook
determined that federalism principles must prevail in this situation, while Coates v. Watson relied on the
argument that “the Courts have repeatedly held that legislative distinctions which treat children of married and
unmarried spouses differently violated the equality guarantee” ( Coates at para 88).

Penner v Danbrook also reinforces the difficulty with Justice Phillips’ mirror comparator analysis of the
distinction based on disability. That argument would not work in Saskatchewan. Adult children who are full-
time students are not eligible for child support in that province, so adult children with disabilities cannot be
compared to anyone who receives the benefit past age 18. To return to our point above, the better approach
under the first step of the test for discrimination would be to find that the FLA created a differential and adverse
impact in its effects by not taking disability and the resulting dependence on one’s parents into account in the
eligibility criteria for child support.

At the second step of the test for discrimination, Justice Phillips found that the effect of the FLA was to deny
adult children with disabilities “the benefit of financial support”, which had the impact of “exacerbat[ing] the
economic difficulties faced by these disabled adult children who were unable to withdraw from their parents’
charge” (at para 22). This was particularly so because AISH benefits were insufficient to meet the financial
needs of the child at the centre of the dispute. As noted by Justice Phillips, “[w]hen state conduct widens the gap
between a historically disadvantaged group and the rest of society, it discriminates” (at para 25). Although she
does not cite it here, that definition of discrimination comes from the judgment of Justice Rosalie Abella in
Quebec v A (at para 332). The “widen the gap” metaphor has also been used in more recent section 15 Charter
cases that are not referred to by Justice Phillips (see e.g. APP at para 106; Centrale des syndicats du Québec v
Quebec (Attorney General), 2018 SCC 18 (CanLII)).

In the case at bar, Justice Phillips found that “the effect of the Act was to widen the gap between the historically
disadvantaged group of disabled adult children and able adult children who could pursue full-time education. It
also widened the gap between disabled adult children who were born within marriages and those who were born

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outside of marriage, a formerly marginalized group” (at para 24). In light of our comments about these
comparator groups and the better characterization of this case as an adverse effects discrimination case, we
would have preferred to see an analysis at step 2 that focused on how the FLA widened the gap between adult
children with disabilities and adults not requiring the ongoing financial support of their parents.

There was no section 1 analysis in the case as the government did not try to defend the legislation.

Conclusion

Although we agree with the conclusion reached by Justice Phillips, we believe it is important to note the errors
and oversights in her analysis so that similar mistakes are not made in future cases where it might make more of
a difference to the outcome. Lower courts’ difficulties with the analysis of adverse effects discrimination is
exacerbated by using discarded formulations of the test for discrimination under section 15. The current test,
put forward in Quebec v A, Taypotat and APP, explicitly acknowledges that disproportionate negative effects,
and not only line drawing, can create discrimination.

The legislature has now corrected the discrimination in the FLA, but we cannot leave this issue without
commenting on the public/private distinction inherent in this case. An application for child support in the
private family law system is only necessary for adults with disabilities when government funded benefits are
inadequate or cumbersome to obtain. In our view, responsibility for the financial security of adults with
disabilities is a public duty rather than a private family matter, although this is a larger issue that goes beyond
the scope of this post.

This post may be cited asJennifer Koshan and Jonnette Watson Hamilton, “The Right to Support for
Adult Children with Disabilities” (February 22, 2019), online: ABlawg, http://ablawg.ca/wp -
content/uploads/2019/02/Blog_JK_JWH_Ryan_Pitchers_Feb2019.pdf

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About Jennifer Koshan
B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.
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