ACCESS AND MAINTENANCE (Hansard, 28 October 1975)

§ Mrs. Knight
I beg to move Amendment No. 241, in page 24, line 1, leave out subsection (2).
This amendment seeks to make the deletion because some of us feel that the provision would enable custodians to obtain contribution orders against stepparents and former foster parents in respect of whom custodianship orders have been obtained.
I seek an assurance from the Minister on subsection (2) because it seems that almost anybody who has taken care of a child for a period of time may find coming out of the blue a demand for payment. In Committee we discussed the situation of a man who married a lady with three children by her previous marriage. The marriage was not a happy one and lasted only a few months, but the man in question found that henceforward he was responsible for his former wife's children. Such a man could discover that a custodianship order was being made against him and under the subsection could suddenly find himself liable for payment.
Surely under the subsection a person by taking on a step-child or privately fostered child will make himself liable for maintenance contribution in the event of possible custodianship for somebody else and also may even risk having his will upset in favour of a former child of the family. I am not happy with the subsection as it stands.
The Government's view is that the clause does not change the law. Is that the true situation? Surely such orders may be made independently of matrimonial proceedings so that the machinery of the court will not be brought into play. It appears that the provision changes the law to a drastic extent. Foster parents who for some reason cease to foster a child will now be vulnerable. Applications may come at them out of the blue by future custodians. The same thing could happen to stepparents in cases where the real parents 1477 have died or neglected the child, or even badly treated it.
A relative may have taken a child in care for a short period of time totally oblivious of the fact that the law may later take the view, "You had little Johnny after the child was taken from its parents because he was badly treated for three months. You are now liable for payment." Where grandparents were looking after a child no matrimonial proceedings might be necessary under these provisions. It seems to us that liability may well be assessed in direct proportion to the step- or foster parents' past generosity.
If the Minister tells me that this is a totally wrong reading of the subsection, I shall be pleased to withdraw the amendment, but at present it appears that, unless the amendment is made, many people who take charge of children may find themselves in difficulty.

§ Dr. Owen
The purpose of this amendment is to prevent a court which has made a custodianship order from making a further order requiring a person other than the child's natural mother or father to contribute towards the child's maintenance. The amendment would also—though this is probably not intended—have the effect of preventing a court which has made a custodianship order from granting access to a person who, though not the child's natural mother or father, has nevertheless treated the child as a child of his family.
I am sure that the hon. Member for Birmingham, Edgbaston (Mrs. Knight) would not wish to deprive anybody of access. I pointed out in Committee that, contrary to what the hon. Lady suggested, the relevant provision in Part II of the Children Bill did not introduce a new principle into the law, since there was ample precedent for it in the Matrimonial Causes Act 1973, which consolidated earlier legislation.
I accepted that much ill-feeling could be caused by the courts requiring persons to contribute towards children not their own, but I suggested that while the precedent existed, the right course was for the Bill to follow it.
Subsection (2) of Clause 33 provides that references in subsection (1) to the child's mother or father include any per- 1478 son in relation to whom the child was treated as a "child of the family", as defined in section 52(1) of the Matrimonial Causes Act 1973. But the court in deciding whether to order a person other than the child's mother or father to pay maintenance for the child is to have regard to whether that person assumed responsibility for the child's maintenance and, if he did, to the extent to which and the basis on which he did, and the length of time during which he discharged that responsibility. The court is also to have regard to the liability of any other person to maintain the child. "Child of the the family" is defined in the 1973 Act as meaning, in relation to the parties to a marriage, a child of both of those parties; and any other child, not being a child who has been boarded out with those parties by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family. The effect of the provision is to enable a person who has treated the child as his own during the currency of his marriage, for example, a step-parent, to be treated as a parent of the child for the purposes of subsection (1).
11.30 p.m.
It is difficult to give total reassurance to the hon. Lady. Each case would be considered individually on its merits, weighing a large number of factors. I should not like to give a categorical assurance in some of the instances that she mentioned. Much would depend on the circumstances of each case.
But this is not a new problem. It is a difficult decision for the court to make and in one or two instances decisions of the courts have been a little surprising. The only way around this difficulty is to have a provision, perhaps cast a little more widely than one might want, that relies much on the sense of the court applying it. For those reasons I believe that this provision is a necessary safeguard and that it will be helpful, in most cases, although I do not totally escape the charge that it could be misapplied in some instances.

§ Mrs. Knight
I should be most grateful if the Minister would say what principle the Bill follows in saying that a person who has voluntarily opened his home to a child for a short time should 1479 be vulnerable to a demand for payment although under subsection (3) the child's father is not to be liable for payment. It seems odd that the father of an illegitimate child will not be vulnerable although a good-hearted relative who acts out of kindness may be vulnerable.

§ Dr. Owen
The hon. Lady raises the whole subject of matrimonial causes legislation. All I can say is that if there are many examples of the present law being misapplied, we shall have to look at that, but I am not yet convinced that that is so.

§ Mrs. Knight
I beg to ask leave to withdraw the amendment.

§ Dr. Owen
I beg to move Amendment No. 30, in page 24, line 20, after '1973', insert 'and sections 3 and 4 of that Act (supplementary provisions)'. This is a drafting amendment to avoid an ambiguity on the face of the Bill and to facilitate later consolidation of legislation relating to children.