Judgments - Secretary of State for Work and Pensions (Respondent) ex parte Kehoe (FC) (Appellant)

(back to preceding text)

    50.  It is difficult to think of anything more important for the present and future good of society than that our children should be properly cared for and brought up. We who are nearing the end of our productive lives will depend more than most upon the health, strength and productivity of the following generations. The human infant has a long period of dependency in any event. But we have added to that by our requirements that they be educated up to the age of 16 and disabled from earning their own living until then. Someone must therefore provide for them. Blackstone (Commentaries, book 1, chapter XVI) regarded this as a matter of natural law:

    "The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish, By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, so far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents."

    He goes on to say that:

    "It is a principle of law, that there is an obligation on every man to provide for those descended from his loins; and the manner in which this obligation shall be performed, is pointed out ..."

    This is so even for children born out of wedlock:

    "Let us next see the duty of parents to their bastard children by our law, which is principally that of maintenance. For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved;.."

    51.  Our law has always recognised the right of a child who is too young to fend for herself to be provided for by her parents. The problem has always been to find an effective method of enforcement. The child was too young to do so and the married mother had no separate right to sue her husband. Hence the machinery of enforcement was laid down in the Poor Laws. As Lindley LJ put it in Thomasset v Thomasset [1894] P 295, at p 299, "As regards maintenance, the parents' obligations were measured both at law and in equity by the Poor Laws".

    52.  But the fact that the father's obligations were measured by the Poor Laws did not mean that the courts of law and equity would ignore them. The principles underlying the later statutory concept of 'wilful neglect to maintain' a wife or child, even the later liability to reimburse the public purse for benefits expended, were those developed by the common law. Hence, just as the husband's common law duty to maintain his wife would normally be discharged by providing the home which they shared, the father's duty to maintain his children would be discharged by providing them with a home: see eg McGowan v McGowan [1948] 2 All ER 1032, per Lord Hodson at 1034.

    53.  The common law courts would not intrude into the matrimonial relationship, or trespass upon the jurisdiction of the ecclesiastical courts over that relationship, by ordering the husband to make payments to his wife. But a wife who was living with her husband did have the apparent authority to contract as his agent for the expenses of the household. And if they were living apart, the common law recognised her agency of necessity, the right to pledge her husband's credit for necessaries according to her station in life. Unlike the housekeeping authority, this could not be countermanded by the husband. But the agency of necessity subsisted only if the wife was justified in living apart from her husband. Hence she would lose it for ever if she was guilty of adultery, no matter how badly her husband had behaved: see Govier v Hancock (1796) 6 Term Rep 603; it would be suspended while she was in desertion: see Jones v Newtown and Llanidloes Guardians [1920] 3 KB 381; but if they were obliged to live apart through no fault of hers, for example because of illness, the obligation continued: see Lilley v Lilley [1960] P 169.

    54.  For a while there seems to have been a view that a child might have a similar agency of necessity to enforce the father's duty to maintain him, the moral obligation being if anything stronger than that towards a wife: see Urmston v Newcomen (1836) 4 Ad & El 899. It was eventually firmly established in Mortimore v Wright (1840) 6 M & W 482 that a father was not liable for his son's debts, even for necessaries, unless the father had agreed to this, whether expressly or by implication; see also Shelton v Springlett (1851) 11 CB 452. But these were cases of near-adult sons who might be expected to fend for themselves. On the other hand, it was recognised that if a father placed his young children in the care of a servant or nurse, he might be liable for necessaries supplied by her or at her request: see Hesketh v Gowing (1804) 5 Esp 131; Cooper v Phillips (1831) 4 C & P 581. But these may have been cases of implied authority rather than agency of necessity. However, once it became possible for the wife to obtain custody of a child even against the father's will, the law recognised that her agency of necessity extended to necessaries for a child in her custody as well as for herself: see Bazeley v Forder (1868) LR 3 QB 559.

    55.  A further recognition by the common law of a duty to maintain was the opinion of the judges that it was an indictable misdemeanour at common law for a person under a duty to provide for an infant of tender years to neglect to do so and thereby injure his health: see R v Friend (1802) Russ & Ry 20. A comprehensive offence of ill-treating, neglecting, abandoning or exposing a child was enacted in the Prevention of Cruelty to, and Protection of Children Act 1889, the forerunner of the present offence of child cruelty under section 1 of the Children and Young Persons Act 1933. A parent or person 'legally liable to maintain' a child is deemed to have neglected him for this purpose if he has failed to provide adequate food, clothing, medical aid or lodging, even if he is not living with the child. Until the Family Law Reform Act 1987, the expression 'parent' did not include the father of an illegitimate child; but the expression 'legally liable to maintain' did include a putative father if he had been adjudged to be such.

    56.  Statutory recognition of the parental duty to maintain dates back to the Elizabethan poor laws, culminating in the Poor Relief Act of 1601, 43 Elizabeth c 2, s 7 of which provided that

    " . . . the father and grandfather, and the mother and grandmother, and the children of every poor . . . person . . . being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner, and according to that rate, as by the justices of peace of that county where such sufficient persons dwell, or the greater number of them, at their general quarter sessions shall be assessed; upon pain that every one of them shall forfeit 20s for every month which they shall fail therein."

The practice was to order, not only payment for the future, but also repayment of money already spent by the overseers of the poor: see Neville Brown, "National Assistance and the Liability to Maintain One's Family" (1955) 18 MLR 110, at p 113. Thus the principle of family responsibility or solidarity was laid down. The Poor Relief (Deserted Wives and Children) Act 1718, 5 Geo I, c 7, allowed warrants for the seizure of deserting husband's property in order to recoup relief given to his wife and children. The procedure for obliging the putative father of a child born out of wedlock to maintain the child was rather different, but according to Professor Brown, more commonly used. For if the children of married parents were poor, their parents would also be poor; but it by no means followed that if an unmarried mother was poor, the father would also be poor.

    57.  The new Poor Law Act of 1834 made it a great deal more difficult to recover the cost of poor relief from the father of a child born outside wedlock. It repealed the laws allowing the mother or Overseers of the Poor to charge or affiliate a man as the father, and substituted a procedure whereby the Overseers could seek an order from the Quarter Sessions for reimbursement. But, far from reducing the problem of illegitimacy (by deterring the mothers), as the Poor Law Commissioners had hoped, this seems to have increased it (by failing to deter the fathers). At all events, it led to the Poor Law Amendment Act 1844. This gave the unmarried mother the right to apply for an order for maintenance from the putative father, in what later became affiliation proceedings. These remained essentially unchanged until the Family Law Reform Act 1987 removed most of the legal distinctions between the children of married and unmarried parents. They were, however, the first in the modern line of statutes giving one parent the right to claim an order for periodical payments against the other.

    58.  The married mother had to wait until the Matrimonial Causes Act 1857 transferred the matrimonial jurisdiction of the ecclesiastical courts to grant decrees of nullity or divorce a mensa et thoro, now called judicial separation, to a new Court for Matrimonial Causes. It also gave that court the power to grant a divorce. Pending and on making those decrees, the court could also make orders for the custody, maintenance and education of the children (s 35). This power was later made available after the final decree (Matrimonial Causes Act 1859, s 4) and then to decrees for restitution of conjugal rights (Matrimonial Causes Act 1884, s 6). The great majority of married mothers, who could not afford to go to the new court, had to wait until the Matrimonial Causes Act 1878 first gave them the right to apply (in very limited circumstances) to a magistrates' court for a separation and maintenance order and for custody of children up to the age of 10. The grounds for making such orders were soon extended, first by the Married Women (Maintenance in Case of Desertion) Act 1886 and then by the Summary Jurisdiction (Married Women) Act 1895, to include, among other things, wilful neglect to provide reasonable maintenance for her or her infant children whom her husband was 'legally liable to maintain' (1895 Act, s 4). A separate power to award limited weekly maintenance for a child in her custody was given by the Married Women (Maintenance) Act 1920, s 1. Meanwhile, a succession of 19th century Acts gave the mother the independent right to apply for the custody of the children, and the Guardianship of Infants Act 1925, s 3(2), gave the court power to order the father to make weekly payments (originally up to 10 shillings a week) for a child in her custody.

    59.  These were the origins of the four private law systems under which one parent might be ordered to make payments to or for the benefit of a child being looked after by another: (i) as an ancillary to matrimonial causes, which until 1967 were always in the High Court; (ii) in matrimonial proceedings in magistrates' courts; (iii) in Guardianship of Minors Act proceedings in the High Court, county courts or magistrates' courts; and (iv) in affiliation proceedings in magistrates' courts, which were until 1987 the only means of obtaining support from the father of an illegitimate child. The Family Law Reform Act 1987 removed the discrimination between legitimate and illegitimate children by expanding the powers under the Guardianship of Minors Acts to include the capital provision which is available for the children of married parents in matrimonial causes and making them available to both. The Guardianship of Minors Act powers were replaced by Schedule 1 to the Children Act 1989; but this left intact the powers in matrimonial causes and matrimonial proceedings so as to avoid having to consider financial provision for the child separately from provision for the adults.

    60.  There is also a separate system, descended from the Poor Law, for recovering the costs of public assistance from 'liable relatives'. We have already seen the extent of the family obligations between parents, grandparents and children which dates back to the Elizabethan poor law. Obligations towards wives, and then husbands, came later. The position which had been reached by 1927 was consolidated in section 41 of the Poor Law Act of that year, which was repeated in section 14 of the Poor Law Act 1930. The power of the poor law authorities to recoup from liable relatives was widely used until the outbreak of World War I. According to Sir Morris Finer and Professor O R McGregor in their invaluable 'The History of the Obligation to Maintain' (published as Appendix 5 to the Report of the Committee on One-Parent Families, chaired by Sir Morris Finer, 1974, Cmnd 5629),

    '. . . the poor law authorities were much better placed to arraign liable relatives and to enforce claims for reimbursement of poor relief against them. But even their success was illusory because . . . the result in no less than half the cases before 1914 was not reimbursement but the imprisonment of the liable relative.'

    61.  The Poor Law was abolished by the National Assistance Act 1948. In the post war welfare state, it was expected that most areas of need would be covered by national insurance benefits and that means-tested benefits would be a safety net for the few who were not covered by the national insurance scheme. The 1948 Act retained the possibility of recovery from a 'liable relative' but reduced those liable: under section 42, a man was liable to maintain his wife and children, including illegitimate children of whom he had been adjudged putative father, and a woman was liable to maintain her husband and children. Neither was liable to maintain a former spouse.

    62.  It was also intended that the receipt of national assistance, later to become supplementary benefit, and later still income support, should not carry a stigma. As Dr Stephen Cretney relates, in his masterly history, Family Law in the Twentieth Century, A History, 2003, at p 460, in keeping with this new entitlement-based approach the benefit authorities changed their policy about seeking recovery from liable relatives. Instead of routinely seeking this, they would try to reach agreement with the husband or father, and accept any offer which they considered reasonable. Rather than take proceedings themselves, they would encourage the mother to do so. The disadvantage for the mother was that she would then not know from week to week how much benefit she would get, because it all depended upon how much maintenance the husband or father had paid that week. The sensible solution eventually found was that she would assign or 'divert' any payment made into the magistrates' court to the benefit authorities. They could then issue her with an order book which she could safely cash each week. Although the benefit authorities retained their power to seek recovery from the liable relative, in practice this was rarely done even in cases where the wife or mother had, for whatever reason, chosen not to bring proceedings.

    63.  It was scarcely surprising that the courts would have this changed climate in mind when deciding what orders for financial provision should be made. They were not supposed to take means-tested benefits into account as a resource available to the wife and mother, but neither were they supposed to order a sum which would reduce the husband and father's income below that which he would receive for himself and his new family were he also on benefit: see Barnes v Barnes [1972] 1 WLR 1381. Furthermore, there has never been a legal liability to support a former spouse, and divorce was becoming more and more readily available, so that fewer and fewer separated spouses would remain married and thus liable to support one another.

    64.  It became common for divorcing parties to agree a 'clean break', in which the wife and children would retain the family home, where the mortgage interest would be met by the benefit authorities, while the husband was relieved of any further maintenance liabilities. This approach may even have been accelerated by the encouragement given to a clean break and the ending of private maintenance for divorced wives by the Matrimonial and Family Proceedings Act 1984. The fact that there were still both private and public law liabilities to maintain the children receded into the background, especially as the risk that the benefit authorities would proceed against the absent parent were so slim. This trend culminated in Delaney v Delaney [1991] 2 FLR 457, where the court proclaimed that 'among the realities of life is that there is a life after divorce'. If, having regard to reasonable financial commitments undertaken by the husband, there was insufficient left properly to maintain the wife and children, the court could have regard to the social security benefits available to them and avoid making an order which would be 'financially crippling' to the husband. So an order that he should pay £10 per week in respect of each of his three children was reduced to an order for 50 pence each per year.

    The Child Support Act 1991

    65.  To sum up, until the passing of the Child Support Act 1991, the position was as stated by Professor Peter Bromley in his leading textbook on Family Law (8th ed, 1992, p 651): "At common law a father is under a duty to maintain only his legitimate minor children and to provide them with food, clothing, lodging and other necessities." Save for its limited enforcement through other people, however, this duty was always unenforceable in the courts. But it was reinforced and expanded by two kinds of statutory obligation: a private law obligation to make the payments ordered by a court under the various statutes listed earlier; and a public law obligation to reimburse the state for benefits paid for the children.

    66.  The reality was, however, that in the many separated families who were dependent in whole or in part upon state benefits that obligation was not enforced. Indeed, in many cases it was not translated into an order at all. For those who were not dependent upon state benefits, however, it might remain an important part of their finances after separation. Husbands were often happier to pay maintenance for their children than for their former wives. Nevertheless, it is not surprising that the Government complained, in Children Come First, 1990, Cm 1263, vol II, para 1.4.5, that 'The contribution made by maintenance to the income of lone parent families therefore remains too low."

    67.  The solution chosen has three essential features. First, instead of the quantum of basic child support being left to the variable discretion of the courts, it is worked out according to a fixed formula. The formula has been greatly simplified by the Child Support, Pensions and Social Security Act 2000, but the principle is still the same. Secondly, the task of assessing that support, tracing absent parents and collecting it from them, whether voluntarily or compulsorily, was transferred from the courts to the new Child Support Agency, the successor to the old 'liable relative' branch of the Department of Social Security. Thirdly, the courts were prohibited from making periodical payment orders for the benefit of the child in any case where a child support officer would have jurisdiction to make a maintenance assessment: see the 1991 Act, s 8(1) and (3).

    68.  It is important to note, however, that neither the private nor the public law obligation, nor the corresponding right of the child to the benefit of that obligation, has been taken away. The public law liabilities, carried over from the old Poor Law, are defined by section 78(6) of the Social Security Administration Act 1992:

    "(a)  a man shall be liable to maintain his wife and any children of whom he is the father;

    (b)  a woman shall be liable to maintain her husband and any children of whom she is the mother."

It is still an offence persistently to refuse or neglect to perform that obligation, as a result of which income-based benefits are paid in respect of a spouse or child: see s 105(1). And the Secretary of State may still apply for an order against such a liable person: see s 106(1).

    69.  The private law liabilities have also been retained in the new scheme. Unlike the father's common law guardianship of his legitimate children, his common law obligation to maintain them has never been abolished, although the wife's agency of necessity was abolished in 1970. Furthermore, the courts' powers to make the full range of orders for the benefit of children remain on the statute book. Despite the general prohibition in section 8(1) and (3) of the 1991 Act, already referred to, the courts remain able to give effect to the parental obligation in a number of ways:

    (i)  by making 'top up' orders for periodical payments where the income of the non-resident parent is above a threshold where it may be appropriate for him to pay more than is payable under the formula (s 8(6));

    (ii)  by making 'school fees orders' for children who are being educated privately (s 8(7));

    (iii)  by making orders to cover expenses attributable to the child's disability (s 8(8));

    (iv)  by making lump sum and property adjustment orders for the benefit of children under the Matrimonial Causes Act 1973 or the Children Act 1989. Although these are mainly used to make provision for housing or other capital expenditure rather than as a substitute for periodical maintenance, it has been held that they may be used for maintenance purposes if the child support machinery has not been invoked: see V v V (Child Maintenance) [2001] 2 FLR 799;

    (v)  by making and varying consent orders which embody periodical payments for a child (s 8(5) to (11); Child Maintenance (Written Agreements) Order 1993). Unless the parent with care receives relevant social security payments, this precludes any further application for a child support assessment. Thus parents can, in effect, avoid the intervention of the Child Support Agency by agreeing a nominal sum in periodical payments at the outset and then returning to court for it to be varied: see again V v V;

    (vi)  by making an order for spousal maintenance which includes the costs of supporting the children and will be reduced pro tanto if and when a maintenance assessment under the 1991 Act is made (a so-called 'Segal order' named after the judge who invented it);

    (vii)  by enforcing a maintenance agreement made between the parents for the benefit of their children, although such an agreement cannot prevent a person making an application to the Agency for a maintenance assessment, nor does the court have jurisdiction to vary it if the Agency would have jurisdiction to make an assessment (s 9(3), (4) and (5)).

    70.  It is obvious, therefore, that the obligation of a parent to maintain his children, and the right of those children to have the benefit of that obligation, is not wholly contained in the 1991 Act. Far from it. The Act left all the previous law intact, merely precluding the courts from using their powers in cases where the Agency was supposed to do it for them. The situation could not be more different from cases such as Matthews v Ministry of Defence [2003] 1 AC 1163, where Parliament clearly did not intend that the servicemen should be able to seek compensation in tort; instead they were to be limited to their service pension rights. The Child Support Act 1991 contemplates that, as a minimum, children should have the benefit of the maintenance obligation as defined under the formula; but it does not contemplate that children should be limited to their rights under that Act; in appropriate circumstances, they may be supplemented or replaced in all the ways recounted earlier.

    71.  That being the case, it is clear to me that children have a civil right to be maintained by their parents which is such as to engage article 6 of the European Convention on Human Rights. Their rights are not limited to the rights given to the parent with care under the Child Support Act. The provisions of that Act are simply a means of quantifying and enforcing part of their rights. I appreciate that the line between a procedural and a substantive bar is not always easy to draw: see Matthews at para 3. A distinction can readily be drawn between that part of the child support scheme which lays down the formula and machinery for assessing the extent of the basic obligation and that part of the scheme which provides for its enforcement. The formula is a substantive definition of the extent of the basic right. But in my view the continued existence of the wider rights, together with the fundamental objective of the 1991 Act to improve the provision made for children by their non-resident parents, places the collection and enforcement provisions of the Act on the procedural rather than the substantive side of the line. A civil right to be maintained exists and prima facie children are entitled to the benefit of the article 6 rights in the determination and enforcement of that right.

    72.  The problem is that this is exactly what the system is trying to do. It is trying to enforce the children's rights. It is sometimes, as this case shows, lamentably inefficient in so doing. It is safe to assume that there are cases, of which this may be one, where the children's carer would be much more efficient in enforcing the children's rights. The children's carer has a direct and personal interest in enforcement which the Agency, however good its intentions, does not. Even in benefit cases, where the state does have a direct interest in enforcement, it is not the sort of interest which stems from needing enough money to feed, clothe and house the children on a day to day basis. Only a parent who is worrying about where the money is to be found for the school dinners, the school trips, the school uniform, sports gear or musical instruments, or to visit the 'absent' parent, not only this week but the next and the next for many years to come, has that sort of interest. A promise that the Agency is doing its best is not enough. Nor is the threat or reality of judicial review. Most people simply do not have access to the Administrative Court in the way that they used to have access to their local magistrates' court. Judicial review may produce some action from the Agency, but what is needed is money from the absent parent. Action from the Agency will not replace the money which has been irretrievably lost as a result of its failure to act in time.

    73.  To sum up, in my view the correct analysis of the situation is this. The children's civil right to the benefit of the parental obligation to maintain them survives the Child Support Act. The extent of that obligation is defined by the Act together with the remaining private law powers. But the Act operates, not only as a limit to the extent of the obligation but also as a limit to its enforcement. This is throughout a private civil right. Even in a benefit case the money paid by the non-resident parent is the children's money. All the Act does is take away the carer's right to enforce payment. That places the enforcement provisions on the procedural side of the line. The parallel with Philis v Greece (1991) 13 EHRR 741 is very close. Article 6 is therefore engaged.

 
continue previous