Memorandum submitted by Family Justice
Council
EXECUTIVE SUMMARY
— The Family Justice Council maintains
strong support for giving jurisdiction to the courts to adjudicate
on child support when in the process of adjudicating on other
ancillary relief matters.
— It supports removal of the 12 month
limit on the court's jurisdiction on regulating child support.
— The Family Justice Council does not
believe that another reform of the law on parental responsibility
is required.
THE FAMILY
JUSTICE COUNCIL
The Family Justice Council was established in
the summer of 2004, following a public consultation. Its main
remit is to promote an interdisciplinary approach to the needs
of family justice and through consultation and research to monitor
the effectiveness of the system and advise on reforms necessary
for continuous improvement. One of its main terms of reference
is the provision of advice and the making of recommendations to
Government on changes to legislation, practice and procedure,
which will improve the workings of the family justice system.
INFORMATION AND
RECOMMENDATIONS TO
THE COMMITTEE
The Family Justice Council made recommendations
following the publication of Sir David Henshaw's report and the
Government's response to it. Those recommendations, summarised
above, are set out in this document.
It is anticipated that the Council will respond
formally to the Government's consultation, reiterating the views
expressed here.
CHILD SUPPORT PROPOSALS FOR CHANGE
RESPONSE TO THE REPORT BY SIR DAVID HENSHAW
FROM THE FAMILY JUSTICE COUNCIL
RETURNING JURISDICTION
TO THE
COURTS
The Family Justice Council is disappointed by
the recommendations contained in Sir David Henshaw's report at
paragraph 52.
The Council still maintains its strong support
for giving the court jurisdiction to adjudicate on child support
when it is in the process of adjudicating on other ancillary relief
matters. The idea that this would risk "significantly increasing
the burden on the courts for what is a relatively simple calculation
process" appears to result from a misapprehension of what
happens in ancillary relief proceedings.
In many cases now, parties will, in the course
of adjudication on other ancillary relief matters, agree a nominal
order with regard to child maintenance. The existence of this
nominal order gives jurisdiction to the court and enables it then
to deal with variation of that order. This allows parties who
wish to do so to invoke the court's jurisdiction now, which suggests
that the feared increase in workload of the courts is probably
overstated.
The Council welcomes the suggestion that the
12 month limit on the court's jurisdiction on regulating child
support should be removed. This will strengthen the nominal order
route for those who wish to use it. The problem is that in some
cases the parties will not agree the nominal order—V
v V is the classic example. So the court should be able to
adjudicate on child support whether or not there is this initial
agreement. The fact that this loophole exists and usually does
the trick means that the court will suffer no extra burden in
dealing with the small residue of cases where there is not that
initial agreement.
The Council reiterates its view that the Government
should consider returning to the courts jurisdiction to deal with
maintenance for children where the courts are dealing with the
rest of the financial arrangements for a family, whether by consent
or not. As stated in our submission to Sir David before he reported,
our view is that the courts will in such circumstances have the
information they need to make an informed assessment of the level
of Child Support and that it is sensible that all arrangements
should be made at the same time. We accept that the courts should
normally use the formula used by the Agency, but they should also
have discretion to depart from it when the circumstances so warrant.
BIRTH REGISTRATION
Sir David Henshaw also suggested that the Government
should consider the best way to encourage the joint registration
of births and that further work on this area should be undertaken.
The premise for this suggestion is that having the details of
the father on the birth certificate will make tracing fathers
easier. Sir David says "There are significant and wide ranging
potential benefits to be gained from encouraging the joint registration
of births." [58]
In its response to his report, [59]the
Government states that it wants to look more closely at policy
in this area and that it will set up a cross-departmental group
to consider the position.
Joint registration of birth confers parental
responsibility on the father. This covers a far wider spectrum
than the relatively narrow one of child support. The obligation
of all fathers to support their children has been recognised in
English law and enforceable for more than 150 years without the
need for it to be allied with fathers' rights.
The issue of parental responsibility has been
the subject of repeated and considered reform following review
by the Law Commission and the Scottish Law Commission. The law
in England was reformed through legislation in 1987, [60]1989[61]
and 2002[62]
and the Scottish law in 2006, [63]bringing
it into line with the law in England and Wales. Given this detailed
and recent consideration, it does not seem appropriate to move
swiftly to changing the law on parental responsibility.
New fathers without parental responsibility
are those who were not available or willing jointly to register
their child's birth, or who fathered children whose mothers were
unwilling to register the child's birth jointly with them. Although
hard evidence is lacking, it seems that these fathers are less
likely to be living in the same household as the child. Research
evidence indicates that fathers who have never lived with their
children are much less likely to support them. Given both the
history and the research evidence, changing the law on parental
responsibility seems unlikely to benefit children by markedly
improving child support compliance and carries risks which the
Review of Child support appears not to have considered.
This is a complex area where the implications
for mothers and for children need thorough review in a wider sphere
than the narrow focus of child support.
On this basis the Family Justice Council does
not believe that another reform of the law on parental responsibility
is required.
10 January 2007
58 Para 109. Back
59
"Birth Registration", page 11. Back
60
Family Law Reform Act 1987. Back
61
Children Act 1989. Back
62
Adoption and Children Act 2002. Back
63
Family Law (Scotland) Act 2006. Back
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