Select Committee on Work and Pensions Written Evidence

Memorandum submitted by Family Justice Council


    —  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 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.


  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.




  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.


  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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