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:-

"2776. (chairman) 'This is the suggestion in para. 2 of your Appendix II?'

'Yes, I think it is not happily expressed. It can be read as meaning that we are asking for power to order a specific payment for the children. We are not asking for that, because the husband has no legal obligation for the maintenance of those children by reason of the present National Assistance Act, the poor law proceedings having been altered in that regard.'

2777. (Mr. Mace) 'Why do you not ask for power for the justices to do that? Assume that the facts were that the man was maintaining those children while living with his wife, would it not be better really if the justices had power to make orders in relation to children who were living with the parties and had some relation to them, either illegitimate children or children of a previous marriage?'

'I personally would like to agree with that, but to give such a power would be contrary to the present run of the law in this matter. Since the National Assistance Act of 1948 a man in those circumstances has no legal obligation to maintain any such children and I could not imagine any legislation on the basis of giving such a power being accepted by Parliament in view of the National Assistance provisions. We do, however, suggest that such children should be taken into account by the court in deciding the amount to be given to the wife...' "

NOTES:
(1) Present writer's emphases in bold type.
(2) At that time a guilty wife would receive nothing.
(3) Note that only four years after the National Assistance Act 1948 swept away the liability of stepfathers to maintain stepchildren, the Morton Commission wanted to introduce a power to make orders in respect of them. This was notwithstanding the aggregation consequences and the fact that Lord Chorley had pointed out that the matter was one of recovery by the National Assistance Board

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:-

"(1) Subject to the provisions of this section, section 26 of the Matrimonial Causes Act 1950 (which enables the court to provide for the custody, maintenance and education of children of the parties to matrimonial proceedings), shall apply in relation to a child of one party to a marriage (including an illegitimate or adopted child) who has been accepted as one of the family by the other party as it applies to a child of both parties.

(2) In considering whether any and what provision should be included for requiring any party to make any payment towards the maintenance or education of a child not his own, the court shall have regard to the extent, if any, to which that party had, on or after the acceptance of the child as one of the family, assumed responsibility for the child's maintenance and to the liability of any person other than a party to the marriage to maintain the child".

Mr. Moyle then said:

"The proposed new clause represents a serious attempt to meet the full recommendations of the Morton Commission on this point ....... I do not think the Committee would wish me to attempt to define the legal processes which have been followed in determining the terms of this clause. They are a complete legal puzzle to me." (Present writer's emphasis.)

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:-

"To enlarge the present Bill to enable magistrates' courts to deal with this class of children raises a question of principle, for it involves making it a specific ground of complaint that a spouse has failed to maintain a child whom at present he has no legal liability to maintain"

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:

"(5) In considering whether any, and if so what, provision should be included in a matrimonial order . . . for payments by one of the parties in respect of a child who is not a child of that party, the court shall have regard to the extent, if any, to which that party had . . . assumed responsibility for the child's maintenance, and to the liability of any person other than a party to the marriage to maintain the child." (Writer's emphasis.)

As to the words emphasised above, Lord Kilmuir said:-

"It might be that the natural father was making a payment. That would have to be taken into account. And it might be that that was a payment under an affiliation order which was part of the maintenance of the child, and therefore the court would take that into account as well."

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 [1962] 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 [1971] 3 All ER 833, following Roberts V. Roberts [1962] 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 [1971] 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:-

"(6) The liability of another person to contribute to the maintenance of the child is not confined to liability under a judgment or order, but extends to any liability enforceable at law. If an order has been made, then the liability is prima facie the amount of the order subject, if the order has been made some time previously, to the liability of the order to be varied under section 53 of the Magistrates' Courts Act 1952. If no order has been made, the liability is that amount of maintenance which would be ordered if proceedings in a proper form were to be taken to enforce the liability."

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 [1965] 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 [1962] 2 All ER 967:-

"On the contrary, it is in a primary sense that 'liable' is used as equivalent to 'answerable for' or 'legally amenable to'; see the Oxford English Dictionary which cites as an example a passage from Blackstone's Commentaries: 'It is reasonable that whenever [ambassadors] transgress [this natural and universal rule of justice] they shall be liable to make atonement'. We readily speak of a person's liability in tort, irrespective of whether or not a judgment for damages has supervened. We say that a man is liable to maintain his wife and children. None of these usages pre-supposes an obligation arising only from judgment or contract or possibly statute, to which [counsel for the wife in Roberts] argues, the word 'liability' should be limited."

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.