After the fling
A family lawyer's take on what your clients might get up to in their holidays – and what you may have to do about it
The shop windows in the high streets remind us that the summer holiday season is upon us. What does this mean for the family lawyer?
If, on a warm beach your client should see and fall for Jean-Marc (or Maria), there may or may not be consequences requiring the attention of the family lawyer. In the paradigm case there is a brief relationship which was never going to amount to a marriage or cohabitation, either in English common law terms or according to the criteria of s 25 of the Family Law (Scotland) Act 2006.
As a result of that relationship your client becomes pregnant and a child is born. Let us assume that the new mother, your client, is habitually resident in the UK. If the father is also resident in the UK, the Child Maintenance Service will have jurisdiction to make a maintenance calculation and to enforce it if necessary.
If, however the mother and child remain in Dunfermline, Dungannon or Doncaster but the father stays abroad, out of the UK, then CMS will have no jurisdiction unless he falls within one of the categories of “deemed habitual residence” in terms of s 44 of the Child Support Act 1991. Note that the criterion is habitual residence rather than domicile, and the rules for habitual residence have been developing recently, especially in respect of the habitual residence of children (A  UKSC 60; B  UKSC 4).
Rights beyond child support
The mother in these circumstances is not left without a remedy, because she will have the same right of action as she would have had if the Child Support Act 1991 had never been passed. It was s 8 of the 1991 Act which made it impossible for a court to make an order for aliment or maintenance for a child if the Secretary of State had jurisdiction. Without that child support jurisdiction the case can go straight to the court, applying the criteria of s 4 of the Family Law (Scotland) Act 1985 or the Children Act 1989 as appropriate. The same applies even under the new CS3 system of child support if all parties are habitually resident in the UK, if there is equal shared care (see reg 50(2) of the Maintenance Calculation Regulations 2012, and article at 2014 SLT (News) 171), because if there is equal shared care, there is no non-resident parent, therefore no qualifying child and thus no jurisdiction in CMS.
What parental responsibilities and rights would that father have? If he signed the child’s birth certificate then, whether or not he marries the mother, he will have full responsibilities and rights, though it may be difficult for him to discharge those responsibilities and to exercise those rights at a great geographical distance. If he did not sign the certificate or marry the mother, he has neither responsibilities nor rights, though in Scotland he will have the residual responsibility and concomitant right to do what is reasonable to safeguard the health, development and welfare of the child while in his control. Note that in Scotland the concept of parental rights is alive and well, though restricted to those rights which are necessary to enable the parent to discharge responsibilities.
So then, what of the brief holiday romance and its adorable but expensive result? The needs, means and resources of the mother are irrelevant to any calculation of child support under the CMS statutory system, but will be completely in play if she tries to obtain a court order in addition to that system. The hybrid case arises where there is a child support jurisdiction, but the non-resident parent has gross income in excess of £3,000 per week. In those circumstances the mother may raise court proceedings asking for a top-up in addition to the child support maintenance. Need is a difficult thing to weigh in such a case, but it’s a claim worth making, or at least considering. And a claim for school fees, or for expenses incurred because of the disability of the qualifying child, is always competent, no matter what the status of the child support argument.
So remember to remind your clients that no matter how hot the sun, how glorious the beach, how delicious the sangria and how attractive Jean-Marc (or Maria) may be, there is one important thing which they should always carry with them when on holiday – your business card.
John M Fotheringham WS, Shoosmiths, Edinburgh
t: 0131 270 8138; e: email@example.com