|The Liability To Maintain And The Child Support Act|
|by Peter Snow LLB (Hons)|
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6 Introduction Of The "Child Of The Family" Provisions In 1958 And 1960; Legislative And Judicial Anarchy Which Eroded The Legal Concept Of Liability To Maintain
The legislative history of the "child of the family" provisions of the matrimonial law, up to 1975, was reviewed in considerable detail by the present writer in Part II of "'Child of the Family', Liability to Maintain and Supplementary Benefit", "Family Law", Vol.5, No.4, July/August 1975, page 112. Succeeding paragraphs here will contain selected extracts from that article, though it has to be emphasised that such extracts alone will be no substitute for careful study of the article itself and if possible passages in Hansard and Reports of various official bodies referred to, including, as to the early legislative stages, the Royal Commission on Marriage and Divorce, 1951-56 (the Morton Commission), and the Departmental Committee on Matrimonial Proceedings in Magistrates' Courts (Cmnd 638).
6.1 Liability to maintain and the Morton Commission.
The first two pages of the article deal in some detail with the recommendations of the Morton Commission - which were, broadly, that the jurisdiction of the court on divorce should be extended to the classes of children now covered by the definition of "child of the family" in divorce and other proceedings. Central to such change was the fact that since the coming into force of the National Assistance Act 1948 there had been no liability under the general law to maintain such children. The Minutes of Evidence of the Commission (page 358; June 16, 1952), record the following exchange between the Chairman (Lord Morton of Henryton) and Mr. Mace (a member of the Commission) on the one hand, and a representative of the Justices' Clerks Society on the other:-
6.2 The Matrimonial Proceedings (Children) Act 1958.
This was introduced as a Private Member's Bill by Mr. Arthur Moyle, who said -
"The Bill has a limitation in the classes of children whom the Royal Commission recommended should be covered. . . The children who are excluded are the illegitimate children of either spouse. This section of the child population is very few in number. The reason for the exclusion is that it would have been necessary to amend the existing general laws concerning orders for maintenance and I was advised that it would be unwise to import such a provision into the Bill by seeking to confer upon the High Court certain power in deciding issues of maintenance that were not part of the jurisdiction of the court." (Present writer's emphasis.)
And Mr. Niall Macpherson (Joint Parliamentary Under-Secretary of State for Scotland) said:
"The difficulty is that under the National Assistance Act 1948, the principle was adopted that a man or woman is liable to maintain only his or her own children. To give the courts a discretion to place responsibility on the other spouse would seem to run counter to this principle. I will say no more than that the issue is a rather more contentious one than is generally contained in Private Members' Bills which reach the Statute Book." (Present writer's emphasis.)
NOTE: In his 1975 article the writer inadvertently attributed this passage to Mr. Rankin. The fact that Mr. Niall Macpherson was a Government minister must add weight to his opinion.
The "existing general laws" were not amended, but a new Clause, prepared by the Government, to include children of one party accepted by the other, was introduced at the second sitting of the Standing Committee. The Clause read:-
Mr. Moyle then said:
Nobody asked the meaning of the words "and to the liability of any person other than a party to the marriage to maintain the child", and nobody offered any explanation.
6.3 Cmnd. 638 and the Matrimonial Proceedings (Magistrates' Courts) Act 1960.
The Departmental Committee on Matrimonial Proceedings in Magistrates' Courts (Cmnd. 638) (Chairman: Arthian Davies J) was presented by the Home Office with a draft Bill. One of its objects was the inclusion of orders for children not of both parties, as in the Matrimonial Proceedings (Children) Act 1958. But the Committee rejected such inclusion. The Report pointed out that section 4 of the Summary Jurisdiction Act 1895 was couched in the terms "the wife's infant children whom he is legally liable to maintain", and that a man was now liable under section 42 of the National Assistance Act to maintain "his children" only.
On Second Reading in the House of Lords on December 16, 1959, the Bill accordingly still restricted the jurisdiction of the court to children of both parties. But as to whether the wider class of children covered by the 1958 Act ought not to be included as well, the Lord Chancellor (Viscount Kilmuir) said:-
Nonetheless, the "child of the family" provisions duly became part of the Bill. The subsection that became section 2(5) of the 1960 Act read:
As to the words emphasised above, Lord Kilmuir said:-
It has to be said that this was a complete nonsense which must have been deliberately intended to deceive and confuse. Viscount Kilmuir and his advisers must have been well aware of the totally different legal significance of the words "liability to maintain".
There was much more to this than met the eye. First, the "child of the family" concept was in fact introduced in 1958 at the first opportunity after a Conservative Government was returned to office, with the ulterior object of subverting the law introduced by section 42(1) of the National Assistance Act 1948, which had released stepfathers from the liability to maintain stepchildren which section 14(3) of the Poor Law Act 1930 had previously imposed on them (see Part II of the present writer's 1975 Article in "Family Law", already referred to). The choice of a form of words which would circumvent the rule of law by which no order for a person's support should be made unless the payer was liable to maintain that person was an essential element in that operation, and it had to be accompanied by ready-made legal argument plausible enough to sustain it.
Secondly, that legal argument would not be viable if hostile judges were to have to be relied upon for uncritical acceptance and implementation of it.
The third element in this equation was the position of Lord Merriman, President of the Probate, Divorce and Admiralty Division of the High Court at the time of the passing of the Matrimonial Proceedings (Magistrates' Courts) Bill in 1960. Lord Merriman heard Naylor v. Naylor in 1961. He must have known all about the Government's arguments as to the second leg of section 2(5) when he said "About the liability to maintain there can no longer be any doubt, having regard to section 42(1) of the National Assistance Act 1948". The Government's Law Officers must have been well aware of Lord Merriman's words. (The law report of Naylor follows that of Roberts v. Roberts (1962) in  Law Reports (Probate Division)). It is not surprising that the 1960 Act was not brought into force while Lord Merriman remained President of the P.D.A. Division.
Lord Merriman died in office in 1962 at the age of 82. There was a long-standing convention that if the President of the P.D.A. Division died in office, the Government of the day was entitled to appoint its Solicitor-General in his place. Sir Jocelyn Simon was accordingly appointed, and for the next nine years (except for a break owing to illness) heard all appeals from magistrates' courts, including, of course, those against orders subject to section 2(5).
6.4 Snow v. Snow  3 All ER 833, following Roberts V. Roberts  2 All ER 967.
Appeals were normally heard by two judges - one the President of the Division and the other the newest judge on the Division. In the present writer's own case (Snow v. Snow  3 All ER 833), Bagnall J (page 848, e), interpreted the words "to the liability of any person other than a party to the marriage to maintain the child", as follows:-
His Lordship had replaced the actual words of the statute with his own. "Liability to maintain" had become "liability to contribute". And he subsequently severed the word "liability" from its infinitive complement altogether so that he could quantify it as "the amount of the order" and "that amount of maintenance" and so invite magistrates' courts to order stepfathers to pay wherever natural fathers did not or could not do so.
In Bowlas v. Bowlas  3 All ER 40, Davies LJ had pointed out that the court had to have regard to "that person's" liability to maintain and not his ability to pay. But nonetheless, on the present writer's application for leave to appeal to the Court of Appeal, even Davies LJ ignored what he himself had previously said although duly reminded, and launched into a nonsense about a natural father who might be a tramp and a stepfather a millionaire (see the "Family Law" article and the law report).
On page 847, e., Bagnall J had quoted from the judgment of the court (read by Sir Jocelyn Simon P), in Roberts v. Roberts  2 All ER 967:-
It is the first sentence, with its quotation from the Oxford English Dictionary, that is the most dangerous part of this passage. The quotation from the O.E.D. was taken from group b: construed with an infinitive. That was correct as to the words "liable to maintain", in which the preposition "to" is part of the infinitive. But it can in no way support a noun or noun-phrase complement construction, such as "answerable for" or "legally amenable to", which cannot be in group b. and in which the preposition "for" or "to" is a preposition in its own right and cannot be part of an infinitive at the same time! Sir Jocelyn Simon P in Roberts, and Bagnall J in Snow, had cited a quotation from examples in group b. in support of usages given in the first group. The whole passage now looks like a clumsy attempt to blind the uncritical onlooker with very doubtful science.
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