The Liability To Maintain And The Child Support Act
by Peter Snow LLB (Hons)
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5 The Legal Consequences Of The Liability To Maintain

The best-known legal consequence of the liability to maintain is undoubtedly the power given by the National Assistance Act and Social Security Acts to an assistance authority (e.g., the DSS) to recover directly from a person statutorily liable to maintain another person expenses of assistance given for the requirements of that other person. But liability to maintain has for many years carried certain collateral obligations and responsibilities, some involving criminal penalties or giving effect to specific orders; and the following provisions of statutes which are currently in force contain references to the liability to maintain although they cannot themselves impose such liability.

5.1 Section 25 of the Matrimonial Causes Act 1973: "Children of the Family": camouflaging an illegal jurisdiction.

Since the coming into force of the Matrimonial Proceedings and Property Act 1970 (later incorporated into the Matrimonial Causes Act 1973), the description "child of the family" has been used to include any other child treated by both parties to a marriage as a child of their family, as well as children of both of the parties. The term goes to jurisdiction only and does not create status or impose any liability to maintain where none exists according to the general law.

The proliferation of divorces may well make section 25 of the 1973 Act one of the most widely used of all statutory provisions at the present day. Numerous "guidelines" set out matters to which the court is to have regard in deciding how to exercise its powers under sections 23, 24 and 24A of the Act (respectively financial provision orders and property adjustment orders in connection with divorce proceedings, etc., and orders for the sale of property). It should be noted that use of such specific "guidelines" represented a major departure from previous divorce law: apart from a long-standing general direction to the court to have regard to the means of the parties and their conduct (itself the most important consideration because it governed a husband's common law liability to maintain his wife during the marriage; see R v. Flintan (1830)), the only "guidelines" in the previous Matrimonial Causes Act (the M.C.A. 1965) were those contained in section 34 re-enacting subsection (2) of the Matrimonial Proceedings (Children) Act 1958 as to stepchildren.

Section 25(4) states that as regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A against a party to a marriage in favour of a "child of the family" who is not a child of that party, the court shall have regard (in addition to various matters set out in subsection (3) in relation to "children of the family" generally) to further specific matters which are set out in paragraphs (a), (b) and (c). (It should perhaps be said that the "child of the family" to whom section 25(4) applies will most usually be a stepchild of the party concerned. There is no liability to maintain a stepchild.) Paragraphs (a), (b) and (c) read as follows:-

"(a) to whether that party assumed any responsibility for the child's maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and the length of time for which that party discharged such responsibility;

(b) to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;"

and finally -

"(c) to the liability of any other person to maintain the child."

It has already been noted that the original wording of this provision, contained in section 2(5) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960, was incorrectly interpreted by the Probate, Divorce and Admiralty Division of the High Court in Roberts v. Roberts [1962] 2 All ER 967 (and followed in Snow v. Snow [1971] 3 All ER 833) to mean "any liability enforceable at law" - a construction discredited by the present writer in an article entitled "'Child of the Family', Liability to Maintain and Supplementary Benefit" in "Family Law", May/June and July/August 1975. Unfortunately not one case where the meaning of the words was in issue has been before the Court of Appeal since. It has also to be noted that in Naylor v. Naylor [1961] 2 All ER 129 (probably the last reported case on section 4 of the Summary Jurisdiction Act 1925), Lord Merriman P had already said that there could no longer be any doubt about the liability to maintain, having regard to section 42(1) of the National Assistance Act, 1948.

5.2 Section 27 of the Matrimonial Causes Act 1973.

This section of the 1973 Act purports to address "failure to provide, or to make a proper contribution towards, reasonable maintenance, for a child of the family". The words "the liability of any other person to maintain the child" appear in section 27 as one of the matters to which the court is to have regard when considering whether to order a non-parent to pay for the child's maintenance. To the comments already made in paragraph 5.1 above has to be added the question: how is a court to decide what is a "proper contribution towards reasonable maintenance" of a "child of the family" by a respondent who is under no legal liability to maintain that child?

It should also be noted that this jurisdiction originated in the magistrates' court and was first given to the High Court by the Matrimonial Causes Act 1950: see Gray v. Gray [1976] 3 All ER 225. In Price v. Price [1951] P.413 at 419, Denning LJ said, "The statute conferring this new jurisdiction on the High Court speaks of wilful neglect to maintain, but does not define the duty to maintain. In order to ascertain it, we have to look at the common law . . . " The point was that a Matrimonial Causes Act, not surprisingly, was an Act about matrimonial causes, and was not competent to lay down the duty to maintain, which has to exist independently of matrimonial causes.

5.3. Paragraph (c) in subsequent legislation.

The "child of the family" provisions have since been inserted into a number of Acts of Parliament concerned with "family law". Examples are the Children Act 1975 (contribution orders against a step-parent of a child in favour of a "custodian"), the Inheritance (Provision for Family and Dependants) Act 1975 (section 1(1)(d): a claim against a deceased's estate by any person whom the deceased had treated as a "child of his family" in relation to any marriage to which he had at any time been a party), the Domestic Proceedings and Magistrates' Courts Act 1978, and the Children Act 1989. In all of these cases, section 25(4) of the Matrimonial Causes Act 1973 has been blindly cloned, and the words of paragraph (c) "the liability of any other person to maintain the child" [or "the claimant", as the case may be (in Re Leach - a case under the Inheritance (Provision for Family and Dependants) Act 1975 - the claimant was 55 years old!)] were repeated equally blindly and were equally open to the same criticisms.

5.4 The part played by the Law Commission.

The "child of the family" provisions were, in effect, inherited by the Law Commission for England and Wales when it took over the constant review of the law following the coming into force of the Law Commissions Act 1965. Although small but welcome amendments to the provisions were made and incorporated into the Matrimonial Proceedings and Property Act 1970 on the Law Commission's recommendation in Law Com. No.25, the "child of the family" concept - whereby a party to a marriage could be ordered to pay for the maintenance of a child not his own on the tenuous ground that he had treated the child "as a child of his family" and had "assumed responsibility for the child's maintenance" (in circumstances where he would be unable to refuse to do so without the risk of intervention by the social services) remained, and the entirely unsatisfactory judicial precedent which bedevilled the words now in section 25(4)(c) of the Matrimonial Causes Act remained also. A passage in the first few pages of Law Com. No.25 makes it quite clear that the Law Commission in general, and the first Chairman of the Commission, Sir Leslie Scarman, in particular, were content to allow the public to continue to be misled into believing that there was no difference between "liability to maintain" and "liability to make payments under an order of the court". It is suggested that the new "guidelines" regime, which had been introduced by the Law Commission in the draft Family Law (No. 2) Bill which was appended to Law Com. No.25 and became the Matrimonial Proceedings and Property Act 1970, must have demanded that the fewer people that understood the difference, the better. (See also Paragraph 9.0 of this paper as to the Commission's reference in Law Com. No.103 to "a husband's proper obligation in respect of his former wife [etc.]".

5.5 The Reciprocal Enforcement Acts of 1920 and 1972.

Enforcement abroad of maintenance orders made in this country and vice-versa was introduced by the Maintenance Orders (Facilities for Enforcement) Act 1920. It enabled maintenance orders made in England and Wales and Ireland to be enforced in such parts of His Majesty's Dominions overseas as had provided by legislation reciprocal provisions enabling such enforcement, and enforcement of overseas orders mutatis mutandis. It did not apply to orders made in Scotland.

Section 10 of the 1920 Act stated (inter alia):

"Interpretation. - For the purposes of this Act, the expression "maintenance order" means an order other than an order of affiliation for the periodical payment of sums of money towards the maintenance of the wife or other dependants of the person against whom the order is made, and the expression "dependants" means such persons as that person is, according to the law in force in the part of His Majesty's Dominions in which the order was made, liable to maintain. ."

It will be seen that to comply with this definition, an order for the periodical payment of sums of money had to be towards the maintenance of the wife of the person against whom the order was made or it had to be towards the maintenance of his other dependants, who were in turn defined as such persons as he was liable to maintain. If an order did not comply with this definition it was not a 'maintenance order" for the purposes of the Act, and would not be enforceable abroad if made here, or enforceable here if made abroad.

The Maintenance Orders (Reciprocal Enforcement) Act 1972 embodied certain changes, but in respect of orders made in the United Kingdom for enforcement in "reciprocating countries" (generally corresponding to the British Dominions overseas covered by the 1920 Act), Part I defined the term "maintenance order" in section 21(1), as:

"(a) an order (including an affiliation order or order consequent upon an affiliation order) which provides for the making of periodical payments towards the maintenance of any person, being a person whom the person liable to make payments under the order is, according to the law applied in the place where the order was made, liable to maintain."

Unlike the 1920 Act, the 1972 Act applied to orders made in Scotland. In respect of orders made in Scotland, however, paragraph (aa) was added by section 55 of the Domestic Proceedings and Magistrates' Courts Act 1978, and departs from the "liability to maintain" criterion:-

"(aa) an order which has been made in Scotland, on or after the granting of a decree of divorce, for the payment of a periodical allowance by one party to the marriage to the other party."

Orders made in respect of spouses during marriage - whether in England and Wales or in Scotland - are clearly within the definition in paragraph (a) above. But orders made on or after divorce are not. After divorce, the parties are strangers to one another in the eyes of the law (see Scottish Law Commission Report No.67, "Report on Aliment and Financial Provision", para. 3.45.) Neither is liable to maintain the other, and accordingly periodical payment orders for former spouses taking effect or continuing in effect after divorce cannot comply with the definition of "maintenance order" in paragraph (a) of section 21(1), and therefore ought not properly to be enforceable in reciprocating countries.

Why paragraph (aa) for Scotland but not England?

Examination of Hansard reports of the debates on the 1920 Bill discloses no intention that the provisions of that Act should apply to orders made after divorce. In an article entitled "Reciprocal Enforcement of Financial Orders Made in Divorce Proceedings", [1992] "Family Law" 475, Lady Helen Ward estimated that probably 1,000 such orders were enforced every year - 500 in and 500 out. In an otherwise very thorough treatment of the subject she made no mention at all of the "liability to maintain" question. The present writer had drawn attention to this in "Family Law" in 1975 when that journal was under the control of Barry Rose (Publishers) Ltd., and it was after that that the Domestic Proceedings and Magistrates' Courts Act 1978 introduced paragraph (aa) for Scotland. The most likely explanation of the omission of England and Wales from paragraph (aa) seems to be that although undoubtedly many orders for adult persons made on or after divorce in England are in fact transmitted for registration and enforcement in "reciprocating countries" despite the fact that they do not comply with the definition of "maintenance order" for the purposes of Part I of the Act, and the illegality of this practice must be well known to the Government, such a change in the Act to apply paragraph (aa) to England and Wales would now require similar changes in legislation in all of the former British Dominions overseas (most of which are now independent States), and the making of such changes would probably be more easily said than done.

5.6 Cases on Reciprocal Enforcement.

The few reported cases on reciprocal enforcement show little evidence of professional awareness of the meaning and significance of the words "liable to maintain" in the statutory definitions. In Harris v. Harris [1939] 2 All ER 318, Lord Merriman P looked only for proper compliance in New South Wales with procedural formalities for the making of an order there, while in Collister v. Collister [1972]1 All ER 334, Sir George Baker P was satisfied that if justices had power to make a custody order in respect of a child, this made the child a "dependant", and the husband was therefore "liable to maintain" the child! This was to turn the definition of "dependants" in section 10 of the 1920 Act on to its head and purport to define liability to maintain by reference to "dependants" rather than the reverse. In both of these cases the assumption appears to have been that there was no difference between the power of the court to make an order and the liability to maintain without which no order made would be a "maintenance order" under the provisions. The point is that if the mere power to make an order against a person rendered him "liable to maintain", there would be no point in the definition, because all orders would automatically be "maintenance orders" as defined. (But see Lord Merriman P some twenty years after Harris, in Naylor v. Naylor [1961] 2 All ER 129 - on the Summary Jurisdiction Act: "about the liability to maintain there can no longer be any doubt, having regard to section 42(l) of the National Assistance Act 1948".)

5.7 Section 1(2)(a) of the Children and Young Persons Act 1933: a definitive example of how legal liability to maintain actually works.

Section 1(1) of the Children and Young Persons Act 1933 states:-

"(1) If any person who has attained the age of sixteen and has the custody, charge or care of any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health [ . . . ], that person shall be guilty of a misdemeanour and shall be liable -

(a) on conviction on indictment [ . . .]

(b) on summary conviction [ . . .]"

Subsection (2) states:-

"(2) For the purposes of this section -

(a) a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or, if having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf."

Section 1 reproduces most of the provisions of section 12 of the Children Act 1908. The text of subsection (2) of the 1933 Act was incorporated in section 12(1) of the 1908 Act, and read: -

"and for the purposes of this section a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing, medical aid or lodging for him .. [substantially as section 1(2)(a) of the 1933 Act above]."

Section l(2)(a) of the 1933 Act a "deeming" provision.

The difference between subsection (1) and subsection (2)(a) of section 1 of the 1933 Act above is that under subsection (1), any person over sixteen who actually wilfully assaults, ill-treats, neglects, abandons or exposes a child or young person under sixteen in his charge or care in a manner likely to cause him unnecessary suffering or injury to health is to be guilty of an offence, whereas under subsection (2)(a) it is only a parent or other person legally liable to maintain the child or young person who can be deemed to have neglected him in such a manner if he fails to provide adequate food, clothing, medical aid or lodging for him. This is the clearest possible statutory authority for the interpretation of the words "liability to maintain" as meaning an obligation to provide necessaries: food, clothing, medical aid or lodging.

"Other person legally liable to maintain" a child.

Before the coming into force of the National Assistance Act 1948, an "other person legally liable to maintain" a child under sixteen could have been the child's grandfather, grandmother or stepfather. After 1948 there was no "other person" liable to maintain him than the child's father or mother. Aside from a later amendment to the Polish Resettlement Act 1947 reintroducing liability to maintain stepchildren as if section 14(3) of the Poor Law Act 1930 had not been repealed, this remained the case until 1980 when the sponsor of an immigrant became liable to maintain the immigrant under section 17(1)(c) of the Supplementary Benefits Act 1976. So for a number of years the words were redundant. Generally, they now apply only to sponsors of immigrant children who are not their own children.

Continuity for nearly ninety years.

Continuation in force until 1996 of a provision which was contained in the Children Act 1908 without dissention as to the principle of imposing, by a mere "deeming" provision, criminal liability upon a person over sixteen who has the custody, charge or care of a child or young person under that age if he fails to provide adequate food, clothing, medical aid or lodging for him, for no other reason than that he is either a parent of the child or is legally liable to maintain him (and this notwithstanding that actual suffering or injury to health (etc.) might be obviated by the action of another person: see section 1(3) of the 1933 Act), must be conclusive proof of long Parliamentary and public understanding and acceptance of the principle and consequences of legal liability to maintain. It is on this basis that the legality of the "person with care" element of the child Support Act assessment formula is challenged in all cases where the "absent parent" is not liable to maintain the person with care of the child (see paragraph 4.15 above).

R.v. Sheppard [1980] 3 All ER 899 (House of Lords): Judicial interpretation of s. 1(2)(a).

The issue in Sheppard concerned the mens rea of "wilfulness" in section 1(l) of the 1933 Act: in particular, whether knowledge of the need for medical attention was relevant. But lord Scarman's interpretation of the words "liable to maintain" in section 1(2)(a) was noteworthy. For no apparent reason, when reviewing section 12 of the children Act 1908, he deliberately omitted the words. He said (page 917, letter g):

"In 1908 Parliament amended the law so as to put beyond doubt that a failure to provide medical aid constituted neglect. It reintroduced the 1868 formulation while retaining the broad range of the 1889 and 1894 formulation, and did so by a 'deeming' provision which has been retained in the subsequent enactment of 1933. The relevant words of s. 12( 1) of the 1908 Act were:

'and for the purposes of this section a parent or other person . . . shall be deemed to have neglected [the child] in a manner likely to cause injury to his health if he fails to provide adequate food, clothing, medical aid or lodging for the child …' "

By omitting the words "legally liable to maintain" after "parent or other person", Lord Scarman extended the "deeming" provision to ANY other person - whether he was legally liable to maintain the child or not. He thereby totally misconstrued the provision: making it appear that it would apply to a legal stranger such as a schoolteacher or next-door neighbour. The whole point is that, apart from a parent, it is only another person who is legally liable to maintain a child that can be held guilty of neglecting the child within section 1(1) of the 1933 Act by failing to provide adequate food, clothing, medical aid or lodging for him - i.e., failing to maintain him.

5.8 Why is "liability to maintain" in the present statutes so grossly misinterpreted?

The three statutory provisions referred to above are all in current use, and the examples of judicial interpretation of the legal liability to maintain are totally wrong. In the "child of the family" maintenance provisions, the words "the liability of any other person to maintain the child" will never produce justice as long as the indefensible construction put upon them in Roberts v. Roberts and Snow v. Snow by the Probate, Divorce and Admiralty Divisional Court is followed, and the illegal transmission, for enforcement abroad, of orders made in England and Wales for the periodical payment of sums of money towards the maintenance of persons whom the persons under an obligation to make the payments under the orders are not liable to maintain will be in breach of the reciprocal enforcement legislation, and (if it were to be followed blindly) Lord Scarman's deliberate omission in R. v. Sheppard of the words "legally liable to maintain" in the deeming provision in section 1(2) of the Children and Young Persons Act 1933 would not only hide the real meaning of "liable to maintain" in the section (as Lord Scarman no doubt intended it to do), but would also impose legal obligations upon strangers who have no such obligations. So the question has to be asked: why? Why is it that the words "liable to maintain" should have suddenly presented so much difficulty since about 1958 or so, when examination of statutes before that date show that those words were in commonplace usage in numerous provisions relating to the liability of certain individuals to reimburse public authorities of one sort or another for expenditure incurred on behalf of certain other individuals?

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Page last updated: 28 October, 2002 © Copyright Peter Snow 1998