The Direct Claim for Maintenance

It might seem somewhat counter to notions of Victorian morality that the first concession to mothers of a direct cause of action against fathers for maintenance for their children was made to single women with illegitimate children. But this was the outcome of the policy changes made to the Poor Law under the influence of economic liberalism, not a response to some awakening of moral conscience. Cultural attitudes to parenthood did gradu- ally change, however, with a growing sentimentality attached to the role of the (married) mother.25 The first statutory remedy given to the mother of legitimate children that encroached upon the father’s complete authority over his legitimate children was the Custody of Infants Act 1839, the result of the campaign by Caroline Norton. The Act enabled a wife (provided that she had not committed adultery) to seek an order for custody in respect of children under the age of 7 years.26 Cases were heard by the Court of Chancery, and only wives from wealthy backgrounds would be in a position

Protecting the Position of Mothers 135

27 Though see Bazeley v Forder (1868) LR 3 QB 559 for a case where the wife successfully relied on her ‘agency of necessity’ (see ch 4, n 8) to require the husband to pay for clothes for the child.

28 Section 35.

29 Married Women (Maintenance in Case of Desertion) Act 1886, s 1(1).

30 Section 57.

to take such proceedings. Indeed, the Act did not deal with maintenance, it being assumed, it seems, that such wives would have the wherewithal to support their children if they sought custody of them.27 Subsequent legislation, most especially that dealing with judicial divorce and other matrimonial decrees, did make provision for maintenance, but policy decisions had to be taken regarding which children in a family the husband should be required to maintain in such circumstances.

i. Whose Children?

After a marriage or relationship breaks down or is terminated by death, a parent will often have children in a new relationship, and will often become a step-parent to the new partner’s own children. The authorities have long recognised that it may make sense in policy terms to assume that obligations are more likely to be fulfilled in respect of the family with which the obligor is currently living than in respect of the one he or she has left behind, or which has left him or her. On that basis, the law has, from time to time, imposed legal obligations on those fulfilling the social role of parent, despite a lack of blood ties between the adult and the child. This would be par- ticularly important at a time of high mortality, where step-families formed through the remarriage of a widowed parent were common and there was no other living ‘parent’ to look to for support.

When the Matrimonial Causes Act 1857 instituted civil proceedings for nullity, divorce and judicial separation, it provided specifically for orders to be made with respect to the custody, maintenance and education of children, ‘the marriage of whose parents is the subject of [the suit]’. In other words, the children had to be those of the marriage.28 Subsequently, legislation extending the jurisdiction of the magistrates to award maintenance to deserted wives referred to the husband’s being ordered to pay a weekly sum for the wife’s support ‘and the support of her family’.29 The 1834 Poor Law had extended the liability of a husband to require him to maintain any legitimate and illegitimate children his wife had when they married.30 The purpose of the later legislation was to provide deserted wives with a means of support that would obviate the need to seek relief under the Poor Law. The intention was therefore deliberately to widen the husband’s

‘matrimonial’ liability in the same way; otherwise a wife with children from a prior relationship might still have to have recourse to the parish.

31 Summary Jurisdiction (Married Women) Act 1895, s 4.

32 Hill v Hill [1902] P 140.

33 Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956), para 573.

34 ibid, para 393.

35 Matrimonial Proceedings (Children) Act 1958, s 4. The magistrates’ matrimonial jurisdiction was brought into line by the Matrimonial Proceedings (Magistrates’ Courts) Act 1960, s 16(1).

36 Law Commission, Report on Financial Provision in Matrimonial Proceedings (Law Com No 25, 1969), para 28.

37 Matrimonial Causes Act 1973, s 52, as amended. The same definition applies to the magistrates’ jurisdiction: Domestic Proceedings and Magistrates’ Courts Act 1978, s 38. A child placed by the authorities with the parties as a foster child is excluded.

When the legislation governing the magistrates’ matrimonial jurisdiction was consolidated in 1895, it accordingly referred to the husband’s wilful neglect to provide reasonable maintenance for the wife ‘or her infant children whom he is legally liable to maintain’.31 In Hill v Hill,32 it was held that a husband could be ordered to pay maintenance for his wife’s children from a former marriage because he was legally liable to support them under the Poor Law.

But at the next update of the legislation, the phrase ‘is legally liable to maintain’ was omitted, and in the 1950s the Morton Royal Commission on Marriage and Divorce33 thought that Hill v Hill was no longer good law.

It recommended that it should be possible to make an order in any matrimonial proceedings, in respect of children who had been ‘accepted’ into the family and supported by the respondent, thus reviving the wider concept, which became known by the shorthand term of ‘child of the family’. The Commission offered little by way of reasoning for the expansion of liability, beyond implying some sort of fault-based causal ground: as it put it:

The children … have been taken into the family and it is their home which has been broken up in consequence of the matrimonial dispute between the spouses;

the latter should not be allowed to disclaim the responsibilities assumed when the children were taken into the family.34

The change that was made to the law was narrower than that proposed by the Royal Commission. It provided that when dealing with divorce proceedings, a court could make certain orders in respect of ‘a child of one party to the marriage … who has been accepted as one of the family by the other party’.35 But as the Law Commission later noted, there was no logic in requiring that the ‘accepted’ child be that of one of the parties to the marriage. A child who is not related by blood to either spouse (perhaps a step- child from a former marriage), might still have been ‘accepted’ into their family and require support if that marriage breaks down. It accordingly recommended36 widening the definition to cover any child who ‘has been treated’ by both parties as a child of the family.37

Protecting the Position of Mothers 137

38 Law Commission (n 36) para 30, fn 61.

39 The relationship need not be that of a ‘step’ parent: see Re A (Child of the Family) [1998]

1 FLR 347, CA (grandparent).

40 I Ellman and T O’Toole Ellman, ‘The Theory of Child Support’ (2008) 45 Harvard Journal on Legislation 107. See also, C Bryson et al, Child maintenance: how would the British public calculate what the State should require parents to pay? (London, Nuffield Foundation, 2015) 13–14, 22.

The substitution of ‘treated’ for ‘accepted’ was intended to indicate that the respondent need not have had a full appreciation of the facts (eg that the child is not biologically his) yet still have considered the child as part of his family.38

The inclusion of social parenthood as a suitable criterion for the imposi- tion of a liability to support can be justified on various grounds. A person fulfilling the social role of parent, at least where he or she married the parent, can be seen to have ‘taken on’ that parent along with the children he or she already had, thereby demonstrating what might now be called his or her

‘commitment’ to the whole family. It also reflects the fact that the children have been part of the family unit; they—as much as the respondent—may have regarded him or her as fulfilling a parental role.39

The Ostensible Purpose of the Decree

The Effect of the Decree after 1884