The Child Support Act And The Filius Nullius: The Illegitimate Child
by Peter Snow LLB (Hons)
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The term "filius nullius" is an old legal fiction meaning "child of no man". Outside the Scriptures, a child of no man is a biological impossibility. But from the earliest days the law recognised that it was unable to say with certainty that a particular man was the father of a particular child: hence the filius nullius. Within the last few years, DNA profiling has enabled paternity of a child to be established to a very high degree of certainty.

Affiliation Proceedings.

Until the coming into force of the Family Law Reform Act 1987, the only method of obtaining a maintenance order against a man alleged to be the father of an illegitimate child was by summons under the Affiliation Proceedings Act 1957. The procedure to be followed under that Act was in substance the same as that set out in section 1 of the Poor Law Amendment Act 1844: a complaint under oath by the mother of the child, corroborated in some material particular, made (at first) within twelve months after the birth of the child, and later [by the Affiliation Proceedings (Amendment) Act 1972], within three years after the child's birth, unless the man alleged to be the father had paid money for the child's maintenance during that period, in which case the mother's application could be made at any time thereafter.

[In a case called Willett v. Wells some years ago, Mr Justice Hollings admitted a mother's complaint out of time by holding that a first-birthday gift of a woolly jumper and trousers was equivalent to the payment of money and so satisfied the requirement. The words "has paid money" were very carefully drafted in 1844 in the same way as the words "a sum certain in money" in the definition of a bill of exchange in the Bills of Exchange Act 1882; and one wonders what his Lordship's reaction would have been if he received his judicial salary cheque (a bill of exchange payable on demand), made out in woolly jumpers and trousers!]

Public Law.

The Poor Law Amendment Act 1844 contained no power for the poor law authorities to obtain an original affiliation order against a man as the putative father of an illegitimate child, but section 7 provided that payments under an existing order could be made to the Guardians etc, if the mother were to die or become incapacitated. By section 7 of the Bastardy Laws Amendment Act 1872, payments already ordered on application of the mother could be diverted to the parish or union if the child became chargeable, and finally, section 5 of the Bastardy Laws Amendment Act 1873 for the first time enabled the poor law guardians themselves to apply to the justices for an original order in their favour in respect of a child who had become chargeable. This power was in no way restricted by limitation of time since the child's birth, so the order could be obtained whatever the age of the child under thirteen years. Under section 3 of the Bastardy Act 1923, such an order could be varied to provide for the payments under it to be made to the mother if the child ceased to be chargeable. These consolidated powers formed the basis for the recovery of payments for maintenance of illegitimate children which lasted until the abolition of affiliation proceedings.

No maintenance for mother.

The relevant section of each of these Acts provided that on hearing a complaint by the mother of an illegitimate child, justices could adjudge the man concerned to be the putative father of the child, and then make an order requiring him to pay for the maintenance of the child. The mother of an illegitimate child was never a favourite of the law, and no provision was made for including in the order any amount towards the maintenance of the mother.

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Page last updated: 4 November, 2003 © Copyright Peter Snow 1994