The Liability To Maintain And The Child Support Act
by Peter Snow LLB (Hons)
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7 Legal Dis-Education: Liability To Maintain After Roberts V. Roberts

After Roberts v. Roberts, professional and academic assimilation of the Roberts travesty of "liability to maintain" was immediate and positive. Most of the following examples are listed in the writer's 1975 article in "Family Law".

1962: Article at 26 M.L.R. 92 about the Roberts case, entitled "The Extent of the Duty to Maintain of the 'Assuming' Stepfather", by Alec Samuels. ("Duty to maintain" and "liability to maintain" are of course synonymous.) COMMENT: No duty "to maintain".

1964: Reincke v. Gray [1964] 2 All ER 687, per Sellers LJ, "by virtue of the Matrimonial Proceedings (Children) Act 1958, section 1(1), and the Matrimonial Proceedings (Magistrates' Courts) Act 1960, section 2(1)(h) and section 16, there was a legally-enforceable (as distinct from moral) obligation on the stepfather to provide for the maintenance and education of the two children, he having accepted them into his family. (Professor P.S. Atiyah, "Accidents, Compensation and the Law", agreed.) COMMENT: Again, power to make an order cannot impose an obligation to do more than the order requires, and such power cannot be exercised except in divorce (etc.) or matrimonial proceedings.

1965: Bowlas v. Bowlas [1965] 1 All ER 803 AT 806, per Scarman J, "Section 2(5) enables the court to do justice between the various persons liable to maintain a child . ." COMMENT: Only the father and the mother are in fact liable to maintain the child.

1971: "The Matrimonial Proceedings and Property Act 1970", by Bernard Passingham: (para. 72) "[ paragraph (b)] is very relevant in relation to [a stepfather's] liability to maintain the child". (Passingham was formerly a member of the Board of Management of the College of Law.)

1971: W(RJ) v. W(SJ) [1971] 3 Al1 ER 303, per Park J, "Thus by that section a husband of a wife who during wedlock gives birth to a child whom both treat as their own, on discovering that he is not the father, may avoid liability to maintain the child". COMMENT: What his Lordship meant was "avoid being ordered to pay for the child's maintenance".

1971: "Stone's Justices' Manual" 1971 included footnote (d) to the word "liability" as to "the liability of any person [etc.] to maintain the child" in section 2(5) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960.

Footnote (d) read:-

"Where the child is illegitimate and the putative father is known there should be considered his liability in affiliation proceedings: see Roberts v. Roberts [1962][etc.], in which it was recommended (per Sir Jocelyn Simon, P.,) that justices should adjourn their final adjudication in a matrimonial proceeding in order to allow the wife to take affiliation proceedings, where appropriate making an interim order under section 6."

COMMENT: This recommendation was based entirely upon the notion that "the liability" of the putative father "to maintain the child" was something to be quantified as an "amount of maintenance" and that this "amount" had to be established in order to arrive at the amount that the stepfather should be ordered to pay.

1973: Thompson v. Price [1973] 2 All ER 846, per Boreham J, "It is accepted on both sides - indeed there is no ground for argument to the contrary - that the plaintiff's present husband has treated the child . . . as a child of his family, and is therefore under a legal obligation to maintain and support that child". COMMENT: No.

1973: Re M. (Decided on October 15, 1973, unreported), per Ormrod J, "The stepfather has accepted them as children of the family and therefore their position vis-a-vis him is the same morally and legally as if he were their adopted [sic] father." COMMENT: Total nonsense. Adoption transfers all parental rights, duties, obligations and responsibilities from natural parent to adopter.

1974: The Report of the Committee on One-Parent Families (The Finer Committee). A long article by the Chairman, Sir Morris Finer, and Professor O.R. McGregor, entitled "The History of the Obligation to Maintain" was in fact mainly a history of the obligation to pay money for maintenance. It also omitted all reference to either the liability to maintain stepchildren from 1834 to 1948 or the subsequent "child of the family" jurisdiction.

1975: Hay v. Hughes [1975]1 All ER 257 (Court of Appeal). The entire Court paid lip-service to the fallacy. Edmund-Davies, L.J. said:-

'The Matrimonial Proceedings (Children) Act 1958, section 1(1), provides that if a widow remarries and her children are accepted as members of the family by their stepfather, he incurs a legal obligation to maintain and educate them".

COMMENT: Again, this was total nonsense. The (repealed, re-enacted and superseded) section 1(1) of the 1958 Act provided nothing of the sort. The learned Lord Justice's interpretation of the provisions was pure conjecture. But the really important error was the assumption that the court's power to make an order, if (and only if) there was a matrimonial breakdown, could have the effect of imposing upon the stepfather a legal obligation to maintain and educate the children.

1975: "Words and Phrases Legally Defined", Edited by John B. Saunders (Butterworths). The then current Second Edition included under "liability" the contentious passage from Roberts v. Roberts (1962) in paragraph 6.3 above.

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