The Child Support Act And The Filius Nullius: The Illegitimate Child
by Peter Snow LLB (Hons)
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The Social Security Act 1990.

This Act contained the first provision which enabled one parent of an illegitimate child to be ordered to pay for the maintenance of the other parent who was a legal stranger to him. It inserted section 24A into the Social Security Act 1986, which stated that where an income support claimant claimed for a child's requirements as well as the claimant's own, and the liable parent was liable to maintain the child, but, by reason of not being the husband or wife of the claimant, was not liable to maintain the claimant, the court, on an application by the DSS, could nonetheless include in an order for the maintenance of the child an amount for the maintenance of the claimant. This anarchic measure was rushed through Report Stage in the House of Commons, and an alliance of thieves in the House of Lords did nothing to prevent it from becoming law. (It likewise forced divorced husbands to pay for former wives for the direct benefit of the DSS for the first time ever.)

The Child Support Act and Existing Affiliation orders.

At the time of the coming into force of the Child Support Act 1991 (April 1993), many affiliation orders made from perhaps 1977 or earlier were still in existence. In some of these cases, paternity will have been unsuccessfully disputed at the time of the proceedings but no appeals had been entered because the cost of pursuing them would have been out of proportion to the amounts of the orders. Assessments under the Child Support Act in these cases now include the so-called "care element" - £45.70 per week or £198 per month - as well as the income support rate for the child and family premium and lone-parent premium, less child benefit (subject only to age-related reduction of the "care element" which nevertheless leaves more assessable income to be attacked by the "additional amount" at 15%) for one child.

Case F of Section 26(2) of the Child Support Act 1991.

Under section 26(1) of the Child Support Act, where an alleged parent of a child denies that he is a parent, the child support officer concerned cannot make an assessment unless one of five "cases" set out in section 26(2) applies. Case F reads:

(a) the alleged parent has been found, or adjudged, to be the father of the child in question
(2) in affiliation proceedings before any court in the United Kingdom (whether or not he offered any defence to the allegation of paternity) and that finding still subsists; and
(b) the child has not subsequently been adopted."

This is clearly intended to mean that a man who has an existing affiliation order against him (whether or not he has paid regularly and whether or not he has paid under protest), will not now be able to deny paternity for Child Support Act purposes.

"Father" and Putative Father".

Case F states "where... the alleged parent has been found, or adjudged, to be the father of the child"... As a matter of law, no affiliation order should ever have been couched in terms which stated that the man was adjudged to be the child's father. Part of section 3 of the Poor Law Amendment Act 1844 reads:

"III. And be it enacted, That after the Birth of such Bastard Child, on the Appearance of the Person so summoned ... the justices in such Petty Session shall hear the Evidence of such Woman ... and shall also hear any evidence tendered by or on behalf of the Person alleged to be the Father; and if the Evidence of the Mother be corroborated in some material Particular by other Testimony, to the satisfaction of the said Justices, they may adjudged the Man to be the putative Father of such Bastard Child;"

Subsequent legislation, including the Affiliation Proceedings Act 1957, has always been in the same terms; the man was to be adjudged to be the putative father - not "the father". So it is unlikely that any man will have been subject to an order in the terms set out in case F.

The word "putative" means simply "reputed". References in the Oxford English Dictionary include:

"1577 tr. Bullinger's Decades (1592) 688 Neither is the scripture itself ashamed to call Marie ... not the putative or supposed, but the true and natural mother."

This looks as if it could present the Child Support Agency and the Government with real difficulty. Genuine denial of paternity in 1994 ought to be given the opportunity of putting the record straight by DNA testing which is now capable of overruling the old "filius nullius" and "putative father" jurisprudence by which these questions had to be decided in the past. It is now open to every man who thinks he has grounds for questioning a previous affiliation adjudication to press for the true facts to be established by the DNA technology now available.

Father to Pay for Mother: Retrospective and Unconstitutional.

There has never been any obligation on the father of an illegitimate child to pay for the maintenance of the mother. The only issue before the court in affiliation proceedings once putative paternity had been established was maintenance of the child. That being so, the demand under the Child Support Act that some £45.70 per week now be added for the mother is something which the father did not go to court to contest in the original proceedings. As well as being retrospective in this sense it is also unconstitutional because there is still no liability to maintain the mother.

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