A same-sex couple, who were not civil partners, had a child via artificial insemination. The couple separated and a shared residence order was made, under which the non residential parent acquired parental responsibility. However, the non residential parent did not pay any child maintenance.
In T v B, T applied for a child maintenance order against B. It was accepted that B was a parent in a social and psychological sense and one of the duties of parental responsibility is to maintain the child. The Court had to consider whether B was a parent in the legal sense as Schedule 1 of the Children Act 1989 confined those against whom maintenance orders could be made to legal parents. In the Child Support Act, a parent is defined as “any person who is in law the mother or father of the child.” B was not the mother of the child, as T was, but neither was B the father. The Court ruled that B was not a legal parent and so the Court had no power to make an order for child maintenance.
The judge 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.” The judge added that obtaining parental responsibility is not intended to make someone a legal parent when they are not a parent and Parliament had to decide who should be financially responsible for children if the responsibility was intended to extend beyond legal parents, “If I were to extend the definition to include anyone who has acted as a parent, I do not see how I could properly define the limits of such an extended definition in a way which would provide legal certainty.”
This case does not just have implications for same-sex couples who are not in civil partnerships. Where one partner in a couple has a child from a previous relationship and the new partner behaves as if they are that child’s parent, then, if the couple separate, there can be no claims for child maintenance as the partner who behaved as if a parent to child is not a legal parent.
If you have any questions regarding parental responsibility or child maintenance, please call James Haworth on 0116 212 1080 or Janet Hopkins or Alistair Dobson on 01858 445480 now or complete one of the on-line forms. James is a member of the Leicestershire Regional Committee for Resolution, an association of legal professionals working to reduce conflict in separation and divorce.
