Provision for Children Born Outside Marriage- 123docz.net

As noted in section II.B, unmarried mothers were given a direct right to seek maintenance in 1844, which became known as affiliation proceedings.

Unlike the matrimonial jurisdiction, this was not based upon establishing some kind of fault. It did not require the woman to show that the putative father had failed to maintain the child. This can be seen as, on the one hand, evidencing the lack of any real obligation by the father to the mother or child to provide support—since the duty did not have to be shown to have been breached—but, on the other, as indicating a direct obligation to maintain, enforceable simply by virtue of his proven parental status.

However, if the father agreed to support the child, such an agreement could be an enforceable contract, and it was in both parties’ interests to avoid the shame of affiliation proceedings,61 so that the reality was that only where he was refusing or failing to support would proceedings be taken. But either way, the obstacles placed in the way of the mother seeking to bring an

62 Graham Hall (n 44) para 109; see also McGregor et al (n 16) 185. A similar argument was later used as a rationale for extending parental responsibility to such fathers: Children Act 1989, s 4(1)(a), as amended.

63 McGregor et al (n 16) 179.

64 ibid, 187.

65 See ch 2, section II.B.i.

66 Cf Law Commission, Illegitimacy (Law Com No 118, 1982) with Illegitimacy: Second Report (Law Com No 157, 1986). The Law Commission’s recommendations regarding financial support for the child were unaffected by the change of approach.

action, especially the requirement of corroboration, probably meant that many fathers escaped liability.

By the 1960s, the Graham Hall Committee noted that the disparity between the rising number of births outside marriage (then around 60,000 per annum), and the relatively small number of affiliation order applications (around 8,000) might be explained in part by the putative father’s ‘assuming a measure of responsibility for his child’, as evidenced by the fact that the birth was jointly registered62 and the assumption that a significant number of parents were cohabiting. But where orders were made, as with matrimonial proceedings, the statutory maximum ‘was hardly ever reached’, and McGregor et al noted the ‘low earning power’ of the fathers.63 They found that half of complainants were dependent upon social security and that the majority of unmarried mothers were managing with neither a court order nor a private agreement with the father. They concluded that ‘these mothers either cannot or will not complain to the court’.64 If they wanted to establish a permanent relationship with the father, taking him to court was likely to be counter-productive, and the unpleasant quasi-criminal atmos- phere of affiliation proceedings was hardly conducive to encouraging an application.

i. Reform of Affiliation Proceedings

As social attitudes became more accepting of sex and child-bearing outside marriage, evidenced by the rising number of such births,65 the stigma of illegitimacy became anachronistic as well as invidious. The Law Commission reviewed the law at the end of the 1970s, and it was reformed in 1987. The recommendation was to end the discriminatory effects of the law on the child so far as possible; the long delay in enacting the Law Com- mission’s recommendation was due to a change of view as to how best to achieve this.66 The central proposal as regards financial provision for the child was to equate legitimate and illegitimate children’s rights in relation to both parents; this meant that the same powers should be available to secure the child’s financial position regardless of the parents’ marital status. Thus, the Law Commission recommended that the wide powers to make property adjustment orders (and unlimited lump sums) that could

Protecting the Position of Mothers 143

67 See this chapter, section III.D.

68 Law Commission, Illegitimacy (Law Com No 118, 1982) para 6.6, emphasis added.

69 See ch 6, sections IV et seq.

70 Law Commission, Illegitimacy (Law Com No 118, 1982) para 6.7.

71 Haroutunian v Jennings (1980) 1 FLR 62, 66 (1977), per Balcombe J. See the discussion of the case in C Smart, The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul, 1984) 110–11.

be exercised on a divorce should be available to a court deciding on provision for a child born outside marriage. While such powers are not generally used to make property orders in favour of a child himself or herself,67 they may be made in favour of the caring parent in order to benefit the child as well—most frequently through the reallocation of rights over the family home.

The rationale for making the powers available in the case of non-marital children was three-fold. First, the parents’ relationship (now recognised as increasingly likely to have involved cohabitation) might well have lasted as long as a marriage. Secondly, the child’s financial position might be in as much need of protection as that of a marital child. Thirdly, and in paral- lel with the ‘clean break’ philosophy governing divorce, ‘it could well be particularly desirable to give the court power to make what would often be intended to be a once-and-for-all settlement in those cases where the father intends to have no further relationship with the child’.68

In envisaging a one-off capital settlement in favour of the child, the Law Commission was articulating an assumption that, in contradistinction to its argument that many children born outside wedlock were growing up in stable cohabiting unions hardly any different from marriages, some would be the products of casual liaisons where the father would not be interested in developing close ties with the child (or the mother). The approach now looks curiously old-fashioned. It has not survived the strong shift that has taken place in the attitude adopted in family law and policy towards the importance of a continuing relationship between a non-resident parent and the child.69

The objection that such powers would be ‘tantamount to giving the mother … a right to support for her own benefit’ was rejected; generally, the provision of capital would simply be to provide a home for the mother and child to live in, not an investment intended to fund ongoing or indefinite support. Moreover, the mother and child formed a unit whose needs were interrelated.70 The Law Commission pointed out that even in affiliation proceedings, the court was already required to take account of the mother’s needs, and in Haroutunian v Jennings the Divisional Court had been clear that the father could be required to pay ‘towards the services rendered by the mother to [the] child’.71

72 In J v C (Child: Financial Provision) [1999] 1 FLR 152, 156.

73 Haroutunian v Jennings (n 71).

74 PG v TW (No 2)(Child: Financial Provision) [2014] 1 FLR 940, [105].

75 J v C (Child: Financial Provision) [1999] 1 FLR 152, 160.

76 Wikeley (n 7) 10.

ii. Standard of Living

The possibility of making capital provision and of including in any ‘maintenance’ an amount intended to reflect the cost of the care provided by the mother to the child, opened up the question of whether, and if so how far, account should also be taken of the father’s standard of living. That standard of living must inevitably be reflected in the consideration given to what the father could afford to pay; we have seen that many fathers simply lacked the wherewithal to pay ‘meaningful’ amounts of maintenance for their children, especially where they had taken on the responsibility for a new family.

But what if the father is wealthy?

The legislation, now contained in schedule 1 to the Children Act 1989, does not specify the family’s prior standard of living as a factor to which the court must have regard (whereas it is referred to in the matrimonial jurisdiction), an omission which Hale J explained as due to the fact that the parties might not have cohabited.72 But one might have thought that the payer’s standard of living should have been referred to, given that the issue had been addressed in the previous case law.73 However, it is not straightforward to determine the rationale for insisting that the child share in the parent’s lifestyle. In Chapter 1, it was argued that the legal obligation on the parent is best explained as derived from causation—the fact that the parent has brought the child into the world—and the same argument is implicit in the modern courts’ view that the child is entitled to be brought up in a standard of living that ‘reflect[s] in some degree the father’s circumstances’.74 Perhaps another way of putting it is that suggested by Hale J: ‘the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living’.75

Wikeley addresses the issue slightly differently. He argues that children have a fundamental human right to have their basic living needs met, but in addition, ‘at the very least a legitimate expectation that they will benefit from the standard of living enjoyed by both their parents, irrespective of with which parent they actually happen to reside’.76 This is because, in his view, ‘child support is not simply a question of ensuring that food is put on the table and clothes on the child’s back. Rather, child support is about improving the child’s overall life chances’, and if the parent can afford to do that then he should. An additional argument is that where the child has ongoing contact with the non-resident parent, he or she should not witness

Protecting the Position of Mothers 145

77 A principle first established in the divorce case, Calderbank v Calderbank [1976] Fam 93.

78 Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 at [49]. See S Gilmore, ‘Re P (Child)(Financial Provision)—Shoeboxes and comical shopping trips—child support from the affluent to the fabulously rich’ [2004] Child and Family Law Quarterly 103. The amount must not include a ‘profit element’ for the mother: PG v TW (No 2)(Child:

Financial Provision) [2014] 1 FLR 940.

79 The Cinderella analogy was used by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657, 667, in explaining that the child’s living standard, funded by the father, would inevitably also benefit her half-sisters, since they could hardly be brought up in the same home at a demonstrably lower level of comfort than she would enjoy.

80 Unless there are special circumstances Matrimonial Causes Act 1973, s 29; Domestic Proceedings and Magistrates’ Courts Act 1978, s 5; Children Act 1989, sch 1, para 3.

a wide disparity between the standard of living enjoyed by that parent and his or her primary carer, still less by himself or herself.77

In cases where a father is somewhere between ‘affluent and fabulously rich’, the Court of Appeal has suggested that the court should first determine the kind of home in which he should provide for the child and the mother to live. This will bear on the level at which other expenses should be met through a lump sum, including provision for furnishings, equipment and a car. In fixing the periodical payments element of the award, Thorpe LJ included school fees, maintaining the home, everyday expenses, and those such as presents and trips, holidays and entertainments. But he also recognised that the cost of doing the care ‘work’ for the child must be met:

[T]he court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial.78

Provision for Children Born Outside Marriage

The Ostensible Purpose of the Decree

The Effect of the Decree after 1884