Child Support: Legal Case Studies

Although the majority of child support cases are decided without court intervention, there are occasionally cases of legal significance that go all the way to the Court of Appeal, or even to the House of Lords. Cases that involve human rights issues can also be taken to the European Court of Human Rights or ECtHR.

Re H (Paternity: Blood Test) [1996] 2 F.L.R 65

This was a court of appeal case about paternity in which a married couple could not agree on whether or not to have a blood test to establish the paternity of a child. The couple had been going through marital difficulties and the mother had an affair with a man ten years her junior, for a period between November 1993 and July 1994. She became pregnant in March 1994.

The mother intended to leave her husband but changed her mind and decided to reconcile her marriage. The intention was to raise the child as hers and her husbands but the man with whom she had an affair thought he was the child’s father, and wanted contact and legal parental responsibility for the child. Prior to the affair the husband had undergone a vasectomy operation but had not subsequently been tested to find out whether it had been successful. He and his wife, the mother of the child, had been engaging in sexual intercourse for some time and it had resulted in no conception. The mother refused to consent to blood tests for herself and her child. (Nowadays the paternity test would normally be conducted by inner cheek swab, not blood test.)

Judgment

The court held that it should permit a blood test of a child unless there was evidence to show that the blood test would not be in the interests of that child. Welfare considerations relating to that child were relevant, but not the overriding factor in the decision making process.

The Right to Family Life

The Human Rights Act 1998 brought into law the European Convention on Human Rights of which Article 8, gives a right to respect for private and family life. This means that people have a right to keep private matters in their home and to do with private correspondence. There is an exception to this, in that public authorities can become involved ‘in accordance with the law’ in relation to matters of national security, public safety, to prevent crime and disorder, in the interests of the economic wellbeing of the country, to protect health or morals, or in relation to the rights and freedoms of others. It is this last element “the rights and freedoms of others” and to a lesser extent the provision relating to health and morals, which most greatly impacts on circumstances relating to children and child support. The following case relates to number of Human Rights points.

House of Lords in Secretary of State for Work & Pensions v M (2006)

This mother in this case had two children by her former husband from whom she was divorced. The children spent most of the week with their father, so she was the non-resident parent for child support purposes. The claim for child support related to a period between 2001 and 2002 so the rules relating to calculation for that period applied. These rules calculated that the income and outgoings of the mother’s heterosexual partner could be taken into consideration when calculating the amount of maintenance that she should pay towards her children. However, the mother was in a lesbian relationship, which meant that she was required to pay more than if she had been in a heterosexual relationship.

Judgment

The mother claimed that she was entitled to treat her same-sex partner as a member of her family. Although she succeeded initially in her appeal the case went to the House of Lords who held that the mother’s claim was not an Article 8 case in that she was not claiming that she was being deprived access to her children, or indeed being denied contact with them at the home she shared with her same-sex partner. The court held that her claim was not a valid one and that the CSA under the 1991 Act was able to treat same-sex couples as either two individuals or one family unit.

Paternity and the CSA

Other high-profile cases aren't so significant in terms of the law but still capture media attention due to the perceived injustices of the child maintenance system. A man made the headlines in the UK in 2007 when he donated his sperm to a lesbian couple who then had a child together. He was a friend of the couple and gave his sperm so that they didn’t have to go through a clinic. Because he was the legal father the Child Support Agency was pursuing him for maintenance for the child.