Child Support

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THE PRESENT STATE OF CHILD SUPPORT LEGISLATION IN ANGUILLA, AND OECS MODEL PROPOSALS FOR REFORM -

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

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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”

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[1] RSA c M5.

Anguilla Legal Aid Clinic Proposal to Government

ANGUILLA LEGAL AID CLINIC

PROJECT PROPOSAL

From: Don Mitchell CBE QC

To: The Department of Social Development, Anguilla

Date: 3 November 2006

1 Background Situation
There are many persons in Anguilla who for one reason or another are unable or reluctant to retain an attorney-at-law to assist them in securing their legal rights. This failure is often related to the cost, or the perceived cost, of those services. There is no government-sponsored legal aid programme to help persons who are unable to afford legal services. Many attorneys presently provide pro-bono advice and services on a private ad hoc basis to clients who are unable to pay the commercial cost of their time and assistance. There is no programme whereby such assistance is organized or documented.

2 Outline Proposal
The proposer, Don Mitchell CBE QC (hereinafter Mitchell), is a retired attorney and high court judge living in Anguilla. Mitchell proposes to assist the Department of Social Development (hereinafter the Department) to organize and provide a legal aid service to deserving members of the community. The proposal is that the Department will provide him with office space, limited administrative support, and he will attend at the Department and advise the Clients (hereinafter the Client) of the Department on three half-days a week. He will also make himself available outside of office hours to advise by telephone free of cost Clients of the Department who for one reason or another cannot make or keep an appointment. Mitchell has no present intention of limiting the services he will provide, eg, to one or two years. But, if the service is to have a guarantee of long life, other attorneys must be attracted to participate and to volunteer their time. Given that this is a new venture, and one cannot foresee the difficulties and problems that may arise, Mitchell is agreeable to the service being offered to the public on an experimental basis to start with, say for one month. If it proves to be popular, the Department may want to enter into a longer term arrangement. The service is to be called the ANGUILLA LEGAL AID CLINIC. The general outline of the service is as explained in the attached brochure, Appendix 1.

3 The Situation
Mitchell is a Queens Counsel and a retired judge. As such, there are limitations to the services that he can render personally. For example, as a QC he is not permitted by his oath to do solicitor’s work, ie, writing letters and settling legal documents. As an ex-judge he is prohibited for the present from appearing in a court of law as the legal representative of a litigant. He is limited to a consultancy role, ie, advising and counseling Clients. Someone else will have to be found to go to court and to provide other necessary legal services to deserving Clients.

4 The Solution
The solution is to have private attorneys do the actual legal work. At present, attorneys are accustomed to spend a substantial amount of their billable time doing free or subsidized legal work. It is anticipated that many of them will welcome[1] having some independent office screen out deserving welfare cases, and by prior agreement to deal with them knowing that they are deserving of free or subsidized legal services. Some of these attorneys will in time be encouraged to attend at the Clinic and to there advise and assist Clients of the Clinic.

5 The Roster
After approval of the Department for the project is obtained, one of the first steps will be to fill out the Roster. The Roster is in the attached form, Appendix 2. It lists every law firm on the island and the services which each attorney will be prepared to offer to Clients. Each attorney will be encouraged to complete and return to the Clinic an application to be rostered in the attached form, Appendix 3. This form when completed will provide the information needed for the Roster. It is this Roster that will ensure that the legal aid services are fairly distributed among the profession, and that undue advantage is not taken of a few attorneys.

6 Client Intake
Mitchell will provide most of the services offered directly by the Clinic, until other attorneys are recruited on a voluntary basis to assist him. He will need help from the Department’s staff. The first job is the completion of the Intake Form, a sample of which is at Appendix 4. When a Client who needs legal advice attends at the Clinic, someone will have to interview the Client and complete the Intake Form. This will give Mitchell all the information he needs to begin to assist the Client. The receptionist will keep the Legal Aid diary, and will give all appointments. During his first interview with the Client, Mitchell will take the detailed statement from the Client and collect all other documents[2] and information needed to perform the Clinic’s services. Mitchell proposes that a fee[3] of EC$10.00 be charged and paid by the Client before the Client is given an appointment to see[4] him.

7 Referral
Once the Client has been interviewed and Mitchell has determined that the Client has a need for legal services that he is not, as explained above, competent to perform, he will contact one of the participating law firms and refer the Client to the attorney in question. This is done by a Referral Letter in the form attached as Appendix 5. An important part of the referral process is Mitchell’s intervention in negotiating a fee that the Client is comfortable with paying, and making a note of it on the documentation. Another important part of the referral process is the agreement of the attorney to permit the Clinic to enquire from time to time[5] how the work in assisting the Clinic’s Client is progressing. The rules[6] that attorneys will follow will be in the form set out in Appendix 6.

8 Feedback/Assessment
Maintaining standards will be ensured by a two-pronged process. First, the Client will be encouraged to report back to the Clinic with an assessment of the services. This will be done in part by using the Client Feedback Form attached as Appendix 7. Additionally, the attorney assisting the Client will be required to give a Status Report from time to time to the Clinic in the form attached as Appendix 8.

9 Full Legal Aid
The proposed services fall far short of a full legal aid system. Such a system would involve government providing a fund out of which lawyers can be paid a reasonable fee to provide professional services to the most needy in the community. It is submitted that Anguilla is a long way from being able to afford such a service. The service that is being suggested in this proposal may be described as an interim or intermediate legal aid service.

10 Budget/Equipment/Personnel
Given that this proposed service will be offered free of charge and using existing facilities within the Department, it is difficult to prepare a budget. However, it may be useful to itemize here the furniture, staffing, and equipment that will be required. A rough draft is attached as Appendix 9.

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[APPENDICES NOT INCLUDED]

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[1]     Many hours are wasted in dealing with a client’s problem before it is realized that the client will never be able to afford to pay for them, and a decision often has to be made on an ad hoc basis to deal with the problem pro bono.

[2]     As regards documents, Mitchell proposes not to collect original documents, but only photo-copies or scanned or photographed copies.

[3]     As regards a fee or charge made by the Department, it is proposed that a nominal fee be charged. This is for two reasons. No person in Anguilla is so poor that a few dollars cannot be found for essentials. Second, it is a generally observed fact of human nature that whatever is free is undervalued. People only respect and value something that they have paid for in one way or another.

[4]     It will not be possible to charge a Client who telephones him for legal advice, and it is to be expected that there will be a significant number of telephone-only Clients once the service becomes more widely known. [It may be possible in due course to put in place an honour system for billing such persons.]

[5]     This monitoring and oversight will be essential for reassuring the illiterate Client and other welfare Clients who are insecure in dealing with professionals.

[6]     It is very likely that these rules will change and evolve over time as Mitchell negotiates with the Bar Association and as the Clinic and the attorneys grapple to deal with problem situations that cannot at present be envisaged or planned for.