|The Liability To Maintain And The Child Support Act|
|by Peter Snow LLB (Hons)|
|[ Previous page | Title page | Next page ]|
4 Brief History Of The Statutory Liability To Maintain
4.1 The Poor Relief Acts of 1598 and 1601.
Statutory liability to maintain has existed since the Poor Relief Act 1598, before which churchwardens and others were empowered to make collections for the poor from members of the congregation. Section 7 of the 1598 Act provided that if of sufficient capacity the parents and children of every poor [etc.] person should at their own charges relieve and maintain such poor person. In the Poor Relief Act 1601 the relevant section became section 6 and added the grandparents. The husband was not included because he was liable to maintain his wife already at common law. Liability to maintain under the poor law applied for all purposes and was referred to in many other statutes.
4.2 Liability to Maintain Stepchildren: the 1834 Act.
There was no liability to maintain stepchildren until 1834 when section 57 of the Poor Law Amendment Act of that year made a man liable to maintain any child under sixteen whom his wife had before her marriage to him. (The liability to maintain all other persons set out in the 1601 Act continued for life: an ongoing inter-vivos obligation of every family to maintain its own poor of whatever age in line of ascent and descent - though grandchildren were not liable to maintain grandparents. In all cases the liability did not exist in the absence of sufficient means.)
4.3 Poor Law Amendment Acts 1850 and 1868.
Neither of these Acts imposed a duty to maintain, but section 5 of the 1850 Act enabled justices to order a husband to make payments for a lunatic wife in an asylum, while section 33 of the 1868 Act allowed them to order him to maintain his wife if she required relief without him. (He was already liable to maintain her at common law.)
4.4 Husband as Liable Relative (1927 Act).
The husband was added as a liable relative by section 41 of the Poor Law Act 1927.
4.5 The Poor Law Act 1930.
Section 14 of this Act set out liability to maintain until its repeal in 1948.
4.6 Illegitimate Children.
The mother of an illegitimate child became statutorily liable to maintain the child by section 71 of the Poor Law Amendment Act 1834. Although section 1 of that Act established what later became known as affiliation proceedings as the only way in which the putative (reputed) father of an illegitimate child was to be ordered to pay towards that child's maintenance, it is questionable whether he was liable to maintain the child before 1948, when section 42(1) of the National Assistance Act made him liable to maintain provided he had been adjudged to be the putative father.
4.7 The National Assistance Act 1948
By repealing the whole of the poor law, the National Assistance Act swept away the liability of parents to maintain children over sixteen, of grandparents to maintain grandchildren, of children to maintain parents, and stepfathers to maintain stepchildren. Section 42 of that Act became the only statutory provision to set out the liability of one person to maintain another. The section stated that for the purposes of the Act, (a) a man shall be liable to maintain his wife and his children, and (b) a woman shall be liable to maintain her husband and her children. A woman's children included her illegitimate children and a man's children included any children of whom he had been adjudged to be the putative father. Section 43 provided for recovery proceedings by the Board from persons liable to maintain under section 42. The dismissal from liability of parents to maintain children over sixteen years of age, of grandparents to maintain grandchildren, of children to maintain parents, and stepfathers to maintain stepchildren under sixteen, meant that from that point onwards, the State assumed responsibility for the support of all of such of those persons as were in need of support but did not have sufficient means.
4.8 The "Child of the Family" Provisions introduced in 1958 and 1962
The Matrimonial Proceedings (Children) Act 1958 and the Matrimonial Proceedings (Magistrates' Courts) Act 1960 (in force from 1962) introduced for the High Court and the magistrates' courts respectively power to make orders against stepfathers in respect of stepchildren whom they were held to have accepted as "children of the family". This in no way created a liability to maintain and in fact ran counter to the abolition of the liability to maintain stepchildren by the National Assistance Act. It is incontrovertible that the ulterior motive of this legislation by the Conservative Government after return to office was to reverse the effect of the abolition of liability to maintain stepchildren and thereby avoid the expenses of assistance (which it was the statutory duty of the National Assistance Board to provide for their requirements), by ordering stepfathers to make payments which would abate entitlement in that regard.
4.9 Section 22(1) of the 1966 Act and section 17(1) of the 1976 Act
Section 42(1) was re-enacted by section 22(1) of the Ministry of Social Security 1966 (which later became known as the Supplementary Benefits Act 1966), being further re-enacted by section 17(1) of the Supplementary Benefits Act 1976.
4.10 The Social Security Act 1980: section 17(1)(c) of 1976 Act.
The 1980 Act added paragraph (c) to section 17(1): any person who, pursuant to the Immigration Rules 1971, had given a written undertaking to be responsible for the maintenance of an immigrant granted an entry certificate in consideration of such undertaking. From that point on, those liable to maintain others for the purposes of reimbursing expenses of supplementary benefit included persons who were not necessarily relatives, so the term "liable relative" gave place to "liable person". "Liable relative" was then immediately plagiarised in Regulation 9 of the Supplementary Benefit (Resources) Regulations to mean persons whose contributions were to be taken into account as resources of supplementary benefit claimants and who were frequently neither liable to maintain nor relatives. The DSS nonetheless continued to use the term "Liable Relative Unit" as though nothing had happened.
4.11 Section 45 of the Child Care Act 1980.
This section was the latest re-enactment of the original section 24 of the Children Act 1948 as to liability for contributions in respect of children in care: "the following persons (and no others) that is to say," - [the father and mother and the child himself if over sixteen]. The words "and no others" in the 1948 Act emphasised the exclusion of step-parents who were previously liable under section 84 of the Children and Young Persons Act 1933.
4.12 The Social Security Act 1986, section 26(3).
This was in the same terms as section 17(1) of the 1976 Act.
4.13 Increase of maximum age of "child" by Social Security Act 1989.
The Social Security Act 1989 did not alter the classes of persons liable to maintain other persons, but it did increase the maximum age of a child whom a liable person was liable to maintain from 16 years to 19 years where the child's maintenance was being provided by income support.
4.14 The Social Security Act 1990: Section 24A of the Social Security Act 1986 (see now section 107 of the Social Security Administration Act 1992).
The Social Security Act 1990 did nothing to alter the liability to maintain or the classes of persons liable but included the peculiar provision inserted into the Social Security Act 1986 (section 24A), whereby on a claim for income support for a child's requirements the court could include in an order against a liable parent an amount for the (adult) claimant where the liable parent was "liable to maintain the child, but by virtue of not being the husband or wife of the claimant, [was] not liable to maintain the claimant". That was at once an admission that a person who was not the husband or wife of the claimant was not in fact liable to maintain the claimant and also a blatant contempt of the vast body of law which had governed recovery of expenses by the DSS, the DHSS, the Supplementary Benefits Commission, the National Assistance Board and the various poor law authorities before them. It also, incidentally, emphasised the difference between liability to maintain and liability to make payments under an order. Regulations made under the 1990 Act (S.I.1990/1777), were quaintly entitled the "Income Support (Liable Relatives) Regulations 1990" even though the term "Liable Relatives" had for some ten years applied only to persons whose contributions to the finances of benefit claimants were relevant under the resources regulations. And it was the first time ever that any legislation allowed direct recovery of expenses of benefit for a claimant by an assistance authority from any person who was not statutorily liable to maintain that claimant.
4.15 Section 1 of the Child Support Act 1991.
Section 1(1) of the Child Support Act 1991 stated that, for the purpose of that Act, each parent of a qualifying child was responsible for maintaining the child. Although section 1(2) said, "an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act", those periodical payments, set out in the formula, in fact are not wholly "with respect to the child", but include a sum expressly stated to be for the person with care - whom no statute or rule of common law has ever held the other parent liable to maintain (whether or not by reference to a child of both) except where they are married to one another. It is this feature of the Child Support Act that will be questioned with especial reference to the role played by the liability to maintain in English law in the past and to the possibility of conflict between the Child Support Act and one or more of the Articles of the European Convention on Human Rights and Fundamental Freedoms.
4.16 Sections 105 and 106 of the Social Security Administration Act 1992.
Section 105(1) of the Social Security Administration Act 1992, by reference to section 78(6), repeated the existing provisions with a re-wording of the basic "parental liability" formulation: a man liable to maintain any children of whom he is the father, and a woman liable to maintain any children of whom she is the mother: emphasising the exclusion of stepchildren as well as omitting reference to affiliation orders which had by then been abolished (paternity of illegitimate children being determinable if necessary by DNA profiling with a certainty far beyond the "putative father" standard previously accepted for justifying recovery of expenses for the fillius nullius. Section 106 provides for court proceedings by the D.S.S. to recover expenses from persons liable to maintain. The court has to consider all of the circumstances, and particularly the means of the respondent.
|[ Previous page | Title page | Next page ]|
|Page last updated: 28 October, 2002||© Copyright Peter Snow 1998|