08th Apr 2020

The Legal Status of Children – Part 3

By James Pirrie

In Part 3 of this blog series (parts 1 and 2 found here and here) on the legal status of children, we consider when a child becomes a ‘child of the family’ and the financial claims that can arise following the breakdown of a marriage.

Status in the married household prior to separation

Mother Bea leaves the hospital the next day and goes back to live with her husband Abe.

Abe could in this way acquire a status in relation to Dee:

  • A child becomes “a child of the family” where they are treated by the non-biological spouse This is potentially important mainly at separation (see below) as it will affect financial obligations but also Abe’s ability to ask the court for orders to protect his relationship with Dee.
  • As regards Abe’s (in effect step-dad, Abe) legal status to care for Dee, we have CA’89s3(5) A person who:

(a) does not have parental responsibility for a particular child; but

(b) has care of the child,

may … do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare. …

It is this rule and perhaps this rule only that provide See with status as regards his involvement prior to his acquiring parental responsibility. It leaves Bea very much as gatekeeper, with See needing to make application to the court if he is unhappy with arrangements and cannot agree better ones.

Meanwhile See presses Bea by texts night and day to get to see Dee. Unsurprisingly things become rocky between Bea and husband Abe and Bea leaves the home, taking baby Dee with her.

At separation from the marriage

On her own, Bea could make an application for financial support for Dee through the CMS … She can only pursue a claim against the father. The CMS are permitted (s26 Child Support Act 1991) to assume that a person IS the father if for example:

  • They were married to each other at some point between conception and birth.
  • They are registered as such.
  • A test shows it (or the putative father has refused to take a test).

Bea has financial claims against Abe:

  • For failure to maintain (if she has financial needs that he does not meet, under s27 Matrimonial Causes Act 1973 [“MCA’73”] ); though more usually
  • She would start divorce proceedings (or Abe would) and financial claims would be pursued by Bea ancillary to the divorce.

As regards claims by Bea against Abe for the (not his) child, Dee, it will be a question of fact as to whether Bea should be treated as a child of the [Abe and Bea] family. If Dee is such a child then Bea can make claims against Abe for her.  The court would take account of:

  • The extent to which Abe had undertaken financial responsibility.
  • The period for which he had done so.
  • Whether he had done so knowing that the child was not his.
  • The court would also take account of the obligations others had to provide (ie. the natural father, See).

There is no precise demarcation as to whether or when a child becomes a child of the family as the cases are few and far between … for example, the court somewhat grudgingly made an order in 1984 after 6 months of living as a family in a case called Teeling v Teeling.

As regards claims for Bea, herself against former husband Abe, the court would take account of her increased needs (being unable to work whilst caring for the baby) but also:

1) the fact of any support from See (or support that could realistically be pursued) and

2) recognising the existence of any cohabiting relationship but also the fact that it might not be permanent.

Bea is also able to pursue financial provision for Dee from the other parent, (See) under Sched 1 of the Children Act.  But See has continued with his persistent texts and spends significant time camped outside Bea’s house.  Bea (who has clearly not been reading around on the issue nearly enough) is won over by his persistence and agrees to set up home with See and baby Dee. She moves into his beautiful top floor 3 bed flat with baby Dee.

In the final part of this blog series, we look at the legal position of Bea and See as unmarried cohabitants and what financial claims can be made in respect of a child. We also consider what options are available when parenting disputes arise.

The author James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. James helps clients to take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. For further details, please contact James at E: jp@flip.co.uk, T: 020 7420 5000 or visit James’s website profile here.