Thursday, October 09, 2008

Child Support

Notes for a speech given at the Department of Social Development Staff Development Day Workshop, at the Soroptimists' Conference Room, The Valley, on 9 October 2008
At present, child support orders are generally made under the Magistrates Code of Procedure Act[1].
The old nineteenth century Act provides two regimes of support. One is for the children of: (i) married women; and the other is for the children of (ii) unmarried women.

1. Married women:
The provisions for child support are found at sections 134-137. Note that the present law provides that:

(i) Legal custody of a child vests in the husband. The court can only give legal custody to the mother, if she is a wife, if she proves, eg,

(a) that the father has forced her into prostitution,

(b) or is a habitual drunkard,

(c) or has committed a “matrimonial offence” such as adultery or desertion,

(d) or has been convicted on indictment.

(ii) Only in one of those conditions can the wife obtain from the Magistrate's Court an order for child support.

(iii) She loses, generally, all rights if the court is satisfied that she has committed an act of adultery.

(iv) If she ever resumes cohabitation, the order is discharged, and she has to start all over again when he abandons her and the children a second time.

(v) She cannot enforce a child support order by applying for the imprisonment of the father if the amount she has allowed to fall into arrears is more than two months or $4,000.

2. Unmarried women
The present-day provisions are found at sections 138-146 of the Magistrates Code of Procedure Act. They provide:

(i) The mother must normally bring her complaint to the Magistrate for a child support order within 12 months after the birth of the child.

(ii) The evidence of the mother alone is not sufficient. It must be corroborated by some independent evidence, eg, by a witness who saw them together in "compromising circumstances" around the time she testified she had sexual relations with the man.

(iii) The court is limited to making orders for the expenses of birth (and prior death) and for weekly maintenance. The court cannot order the man to help her with other expenses surrounding the having and bringing up of a child.

(iv) Child support arrears cannot be collected unless the mother can prove that the father possessed sufficient means to pay. She cannot merely testify that he did not comply with the court order. She has to become a detective and find the evidence that can satisfy the court that the man has the income to meet the court order, and that he has been deliberately flouting the court order.

(v) The court can, normally, only make an order for the support to be paid to the mother of the child, and not to anyone else, unless the mother has died. The grandparents or whoever else is bringing up the child cannot enforce the order and ask the court to make the man meet the terms of the court order the mother obtained.

The Reforms
The major reforms proposed have come out of the OECS Family Law and Domestic Violence Project. This is part of the initiative of the Eastern Caribbean Supreme Court towards judicial and legal reform in the OECS region.

The Bills that have been circulated for discussion, and adoption by the Houses of Assembly of the various countries and territories of the OECS are:

  1. The Child Justice Bill;
  2. Children (Care and Adoption) Bill;
  3. The Domestic Violence Bill;
  4. The Family Law (Guardianship, Custody and Access to Children) Bill;
  5. The Maintenance of Children Bill;
  6. The Status of Children Bill.
The ones that we are to look at today are:

  1. The Status of Children Bill
This Bill will completely reform the law relating to the status of children:

(i) It abolishes the distinction between children born in wedlock and out of wedlock.

(ii) It does away with any reference to whether or not the parents of a child are married to each other or not.

(iii) The right of the child to inherit its father's property no longer depends on whether or not its parents are maried to each other.

(iv) It vests in the father for the first time rights in relationship to the child.

(v) Paternity is now presumed where:

(a) he was married to the mother at the birth of the child;

(b) the child was born within 10 months of his death or divorce;

(c) the child was born within 10 months of his ceasing to cohabit with the mother;

(d) he was adjudged in his lifetime or after his death to be the father;

(e) the mother (during the father's lifetime) or the father signs a notarised document acknowledging him to be the father.

(vi) It creates the Family Court.

(vii) It sets out the procedure for the court to make a “declaration of parentage”.

(viii) It provides the medical procedures for “parentage” to be determined.

The Act is supported by the following Regulations:

The Status of Children (Parentage Testing Procedure) Regulations
This provides for parentage to be established by DNA testing. There are detailed procedures to be followed, and the forms that have to be completed in each case.

2. The Maintenance of Children Bill
Some of the major proposed reforms of this Bill are:

(i) The High Court may, eg, in bankruptcy proceedings, make an order restraining the depletion of a person's property which would impair or defeat the making of a maintenance order.

(ii) The Bill makes no distinction between married women and unmarried women and of children born in wedlock and children born out of wedlock. All the complicated provisions that previously distinguished each of these two from each other are swept away.

(iii) The concept of “putative father” goes. The concept of “child born out of wedlock” goes. Each “parent” of a “child” now has an obligation to provide for its support.

(iv) "Congujal relationship” is now recognised, and identical maintenance responsibilities follow regardless of whether one is the mother or the father, or whether or not they are married to each other.

(v) The court is permitted to make orders for “joint physical custody” and “joint legal custody”. So, for the first time, an unmarried father may obtain joint physical custody, or joint legal custody permitting him access to the child.

(vi) A parent who receives money for child support must use it for that purpose. If he or she misapplies that money, he or she now commits an offence

(vii) The Bill is supplemented by draft regulations. They are titled the Maintenance of Children Regulations. The most important changes for Anguilla are:

(a) Regulation 3 provides for the court to send a notice to the person who has been orderd to support a child.

(b) Regulation 4, and section 17 of the Bill, envisage the Magistrate's Court appointing a Collecting Officer from the staff of the court house. In Anguilla, that may well be more appropriately drafted by providing for an officer of the Department of Social Development to perform that duty, as it is not normal for the court house to collect, disburse and account for child support monies.

(c) The Schedule consists of all the various forms needed by the Bill.

The third new proposed piece of legislation that that we will look at and that will reform the child support regime in Anguilla is:

3. The Family Law (Guardianship, Custody and Access to Children) Bill
This Act makes provision for:
(i) The equality of parental rights in relationship to children, particularly as concerns the custody and upbringing of children;

(ii) Custody orders only to cease to have effect after six months of the mother and father resuming cohabitation. So that trickster fathers can no longer entice the mother of his child into a short lived and spurious reconciliation that will have the effect of making her start the proceedings for child support all over again.

(iii) The intervention of counsellors and mediators and other professionals to be ordered by the Court dealing with the matter.

(iv) Orders to be made prohibiting “harassment” or “interference with the child”

[1] RSA c M5.