8 Legal Re-Education: Liability To Maintain After Publication Of "'Child Of The Family', Liability To Maintain And Supplementary Benefit" ("Family Law", 1975)

The position in 1996, over twenty years after the last of the above statements was made, appears to be that none of them has ever been repeated in any reported case. A more easily verified effect of this 1975 article is the present position in regard to the entries mentioned above in Stone's Justices' Manual 1971 and the Second Edition of "Words & Phrases Legally Defined" (as at 1975):-

8.1 Stone's Justices' Manual, 1996.

The 1996 Edition of Stone's Justices' Manual, dealing with the substantially similar wording of section 3(4)(c) of the Domestic Proceedings and Magistrates' Courts Act 1978, no longer has a footnote to the word "liability", recommending (per Sir Jocelyn Simon, P. in Roberts v. Roberts (1962)), that justices should adjourn final adjudication of a matrimonial proceeding against a non-parent to enable the parent to take proceedings against the other parent first.

8.2 "Words & Phrases Legally Defined", Third Edition (1989).

The Third Edition of "Words & Phrases Legally Defined" (1989) does not contain the entry that was in the Second Edition for "liable" citing Sir Jocelyn Simon, P., also in Roberts v. Roberts, and followed by his Lordship and Bagnall J in Snow v. Snow [1971] 3 All ER 833. Also, the 1989 Edition of "Words & Phrases" does contain the definition of "maintenance order" in section 21(1) of the Maintenance Orders (Reciprocal Enforcement Act 1972, to which the present writer referred in the 1975 "Family Law" article and with which he has dealt in some depth in this paper.

8.3 Public and Professional understanding of Liability to Maintain by 1996.

If all rectifications of bad precedents were to be fully publicised, bad law based upon them would cease immediately. But this is not what happens. Superseded references in the books merely drop out of later editions, and their absences go unnoticed while the practices which they established continue to be followed unless appealed. It is consequently difficult to know whether many members of the public, or for that matter legal practitioners, really understand the difference between liability to maintain and an obligation to make payments under a maintenance order. Likewise, while it seems unlikely that unthinking judicial utterances such as those that referred to "child of the family" in the "fatal accidents" cases between 1963 and 1975 in the High Court and Court of Appeal will be repeated, it appears by no means certain that magistrates, considering whether to order a stepfather, as well as the natural father, to pay towards the maintenance of a stepchild, will not still be influenced by previous practice based on the now-discredited judicial grammatical conjuring trick which purported to sever "liability" from its infinitive complement "to maintain" handed down by the Probate, Divorce & Admiralty Divisional Court in Roberts v. Roberts and Snow v. Snow for the purpose of quantifying respective contributions in the mistaken or professed belief that they were "having regard" to the "liability" of the natural father "to maintain" the child. So it will be necessary to look at the way in which the term "liability to maintain" has been used in statutes over many years. But before that exercise is embarked upon, reference should first be made to a series of influential mis-statements of law which accompanied the Parliamentary proceedings on the Matrimonial and Family Proceedings Bill in 1984, as to whether there was, or was not, any liability of former spouses to maintain each other after divorce.