Friday, June 18, 2010

Lesbian partner not liable to maintain child

If you have parental responsibility for a child then logic would suggest that you should be responsible for maintaining the child. Not so, said Mr Justice Moylan, according to this report in The Telegraph yesterday.

Mr Justice Moylan was deciding a case involving a lesbian couple (who had not been through a civil partnership ceremony), where one had had a child through artificial insemination. After the relationship broke down, her partner ('B') obtained a shared residence order and therefore acquired parental responsibility for the child. The mother then sought a maintenance order against B, but Mr Justice Moylan ruled that B was not a 'parent' within the law, and therefore the court had no power to make a maintenance order. He said: "In some respects the outcome in this case may seem objectively surprising. However, in my view it is for the legislature to determine who should be financially responsible for children if it is to extend beyond those who are legal parents."

Now, I've not read a full report of this case but the result, although perverse, does seem correct as a matter of law. Whilst it is accepted in all quarters that one of the duties included in 'parental responsibility' is, of course, the duty to maintain (see, for example, Cretney, Principles of Family Law, 8th Edition, para 17-028), Schedule 1 of the Children Act clearly only enables the court to make orders for financial provision for children against 'parents' (the Child Support Act s.1 also only provides that each 'parent' is responsible for maintaining a qualifying child). 'Parent' is defined in the Child Support Act (s.54) as "any person who is in law the mother or father of the child". Clearly, B is neither the mother nor the father of the child.

In the circumstances, Mr Justice Moylan is surely correct that it is for Parliament to determine whether a person in the position of B should be responsible for maintaining the child. For what it's worth, I would submit that they should.

2 comments:

  1. presumably as long as it works the same way for both men and women it will be eu compliant. interesting example of the no-man's land between ghaidan v godin mendoza and bellinger.
    i also agree in societal terms it is in all of our interests that both members of a stable family should take responsibility financially for children.

    bugger - i might be accused of taking an interest in family law. this must stop!

    ReplyDelete
  2. An interest in family law? Perish the thought!

    :-)

    ReplyDelete

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