Maintenance, the Magistrates’ Courts and the State
By the beginning of the twentieth century, the magistrates’ courts were making extensive use of their jurisdiction (codified in 1895)1 to make separation and maintenance orders. Statistically this was for long more important than the matrimonial jurisdiction of the High Court. Even after legal aid became available2 for divorce in 1950 and for the first time gave wage earners faced with marital breakdown a realistic possibility of opting for divorce, magistrates were still making3 nearly 15,000 spouse maintenance orders each year;4 and in 1958 the Maintenance Orders Act 1958 gave the magistrates’ courts the power to vary many periodical payment orders originally made in divorce. In this way, the magistrates’ courts came to play a large part in determining the ongoing financial arrangements for the divorced and their families, notwithstanding the fact that they never had power to grant divorces.
Magistrates had also traditionally been concerned with the obligations imposed by the Poor Law;5 and the magistrates’ courts continued to have an important role in dealing with the relationship between the Welfare State and private support after the abolition of the the Poor Law in 1948. But increasingly it came to be asked whether these matters might not be better dealt with by administrative (rather then judicial procedures) and the magistrates’ jurisdiction (p.444) was scrutinised by three important official committees6 between 1968 and 1974. The Domestic Proceedings and Magistrates’ Courts Act 1978 eventually introduced many important changes in the substantive law (not least by ending the power to the magistrates to make separation orders) but did little if anything to alter the balance between judicial and administrative process. In 1991 however the Child Support Act challenged what was described as the common assumption that the State should assume financial responsibility for the family when a marriage or other family relationship broke down. In the result, the role of the magistrates in relation to the financial aspects of family law7 remains at the turn of the century unclear and its future uncertain. But historically the development of the courts’ powers to regulate the financial relationship between a couple whose marriage was in difficulties is important, and the present chapter seeks to trace the more important stages.
THE LEGISLATIVE FRAMEWORK: THE DEVELOPMENT OF THE SUBSTANTIVE LAW
The marginal notes to the Matrimonial Causes Act 1878 make it clear8 that the Act was seen primarily as protecting the wives of men convicted of aggravated assault by providing that the wife victim should (at least if the court was satisfied9 that her future safety was in peril) no longer be legally obliged to live with the guilty husband; but the Act also provided10 that on making such a non-cohabitation order the court could in addition order the husband to pay the wife
‘such weekly sum as the Court… may consider to be in accordance with his means, and with any means which the wife may have for her support… and the Court… shall have power from time to time to vary the same on the application of either the husband or the wife, upon proof that the means of the husband or wife have altered in amount since the original order’ was made.
But no such order was to be made if the wife had committed uncondoned adultery; and the court could discharge the order if at any time the wife committed adultery.
In 1886 Parliament went much further by giving a deserted wife a direct financial remedy against her husband:11the Married Women (Maintenance in Cases (p.445) of Desertion) Act 1886 provided that the court could order the man to pay the deserted wife12 a weekly sum not exceeding £2 provided he was able wholly or in part to maintain her but had wilfully refused or neglected to do so. In this way, the deserted wife was no longer forced into the workhouse until such time as the Poor Law authorities were able to take action against her husband.13
The 1895 Act was ‘significant because it conferred on magistrates’ courts the general matrimonial jurisdiction which has been widely exercised in the twentieth century. In addition to consolidating the provisions of the 1878 and 1886 Acts, the Act enabled justices to make orders for separation and maintenance where the husband had wilfully neglected to maintain, a power not available to the High Court until 1949. Justices could also make orders on the grounds of desertion even though the desertion had not continued for two years’.
(p.446) An inadequate remedy?
The National Union of Societies for Equal Citizenship19 and the other women’s groups which became particularly active at the end of World War I20 did not think this legislation went anything like far enough. Their starting point was a belief in ‘real equality of liberties, status and opportunities between men and women’ and an equal moral standard between men and women;21 and specifically they believed married women should be entitled to a reasonable share of the husband’s earnings. But NUSEC realised that there was no prospect of getting radical legislation compelling husbands to share their incomes through Parliament. Instead, they seized on the fact that the magistrates could only order financial support for women who had been driven out of the home or had the courage to leave. And even if a wife got an order she could not enforce it at any time that she was living with the husband.22 NUSEC demanded the abolition of these restrictions: the wife who was not being adequately maintained should be able to get an order if she could establish neglect or cruelty; there should be no financial limits on the orders which the court could make23; and the (p.447) grounds24 upon which orders could be made should be extended. NUSEC also wanted an end to the rule under which a wife’s adultery—even if the husband’s failure to support had driven her onto the streets—was a bar to her enforcing the order.25 They wanted more effective means of enforcement, and in particular they wanted the court to have power to order the husband’s employer to deduct the amount due from his wages and pay it to the wife.
NUSEC drafted a Bill26 which was introduced as a Private Member’s Bill by Sir Robert Newman27 in 1922. Not surprisingly this all proved highly controversial.28 The Government conceded that the Bill would effect some useful changes; but it considered some of the proposals to be ‘mischievous’ and totally unacceptable. In particular, there was strong opposition to any proposal which (p.448) could be seen as giving the courts power to regulate the lives of a married couple who were still living together.29 Eventually, a deal was done: Sir Robert Newman agreed to drop his Bill provided the Government would introduce legislation30 but the Summary Jurisdiction (Separation and Maintenance) Act did not actually get onto the statute book until 1925.31
It did very little to meet the women’s groups’ demands. True, it was no longer necessary for a wife to leave her husband before seeking an order; but orders were not enforceable so long as the wife continued to reside with her husband. Orders were effectively in suspense so long as the parties remained together, and an order would automatically come to an end if the couple continued to reside together for three months or more.32 It is true the courts were given powers to make orders against husbands who were on drugs, sent their wives onto the streets, or insisted on having intercourse notwithstanding the fact they had VD;33 (p.449) but in practice these grounds were rarely invoked.34 The only provision intended to improve enforcement was the obligation imposed on a husband to notify changes of address.35 It remained the law that a single casual act of adultery would deprive a wife of any right to a magistrates’ order;36 and the court’s powers were still restricted to an amount37 which emphasised that the magistrates’ courts were courts for the working classes.38 There was no further significant change in the substantive law until 1978.39
The law in practice: exercising discretion
The only guidance given to magistrates about the exercise of their financial powers was that they could order a husband to pay his wife40 a weekly sum of such an amount (up to the £2 weekly statutory maximum)41 ‘as the court … (p.450) having regard to the means both of the husband and wife’ considered to be ‘reasonable’. For many years,42 the fact that in practice those who came before the magistrates were poor meant that there was little discussion of the principles upon which the discretion should be exercised. Overwhelmingly, the question was simply how much could, somehow, be extracted from a husband. One magistrate,43 asked in 1910 by the Gorell Committee what order he would make against a man earning 25/- weekly, replied:
‘I make small orders, because it is impossible for him to pay a large sum. My orders seldom run to 10s. In a case of 25s44 a week with regular employment, and … three or four children, it may be 10s a week, but that leaves him not very much when he has to pay another rent and his food, and so on … they will attempt to pay a small order, and they make no attempt to pay what you would call a sufficient order, and the woman ekes out the difference with her own labour and the labour of her children’.
Magistrates asked to explain the theoretical basis for the assessment of orders would often refer45 to the so-called one-third test applied in the Divorce Court;46 but both the actual practice of experienced magistrates and the various official committees which investigated the magistrates’ jurisdiction over the years favoured a much more pragmatic and less doctrinaire approach. Thus, the Fischer Williams Committee47 remarked in 1936 that
‘Circumstances differ so widely that it is unwise to attempt to fetter the discretion of the Court by prescribing a definite scale of payments. We believe some Courts adopt the practice of the divorce court and grant the wife one-third of her husband’s income, with some addition where there are children. While such a proportion may be just in the bulk of cases, it may be inadequate in the case of a man earning ‘good money’ who after years (p.451) of married life deserts a wife who has little prospect of obtaining employment. On the other hand, one-third of a man’s wage may be too large a proportion in the case of a young and healthy woman in good employment or free from domestic ties and capable of obtaining such employment’.48
But not all courts behaved with the restraint evident in the testimony of experienced stipendiary magistrates. It is not surprising that men on low wages should resent being forced to hand over a significant part of their pay packet to the wives they had come to hate,49 and should accordingly complain bitterly that the order was ‘too much’; but there is little doubt that on occasion magistrates ignored the financial realities and made orders apparently calculated primarily to punish the husband:
In one reported case50 magistrates had ordered a 66-year-old London railway porter earning £1.15 a week to make periodical payments to his wife of £1 a week. The husband, unsurprisingly, did not pay and was committed to prison. On appeal (financed by commuters who had learned of the porter’s plight) the order was reduced to 40 pence.51
—and more than 30 years later the Fischer Williams Committee52 drew attention to a case in which
‘an unemployed man in receipt of Unemployment Benefit amounting to 15s. 3d. a week, with additional allowances of 8s. for his wife and 2s. for his child, was ordered to pay 15s. a week, and was expected to continue payment at that rate even when the additional allowance for the wife had been discontinued on her obtaining employment. There appeared to be no evidence that the man had any other means …’.
Only in the 1960s was a serious attempt made to gather information about the sums actually awarded as maintenance.53 This demonstrated that the husbands (p.452) involved in magistrates’ maintenance proceedings were within the lowest income groups, and that the average amounts payable under court orders were low. At a time when male workers in manufacturing industry earned an average of £18 weekly, the average order made for a wife’s maintenance seems to have been around £2 weekly; and less than one in five of the orders made were for amounts which would keep the wife and her family at subsistence level as reflected in welfare benefit rates.
It seems that the magistrates’ courts were for long not primarily concerned with the difficult questions of policy which troubled the superior courts but rather with obtaining reliable information about the means and circumstances of the parties. In 1936 the Fischer Williams Committee54 accepted that the court should strike a balance between the needs of the husband and the needs of the wife, and urged courts first to consider the man’s means and to decide the maximum he could reasonably be expected to pay, and then to go on to consider what sum within that maximum would be reasonable having regard to the means of the woman. But the Committee accepted that courts often lacked reliable information about the parties’ finances55 and deplored the fact that a court of law often had to act on less information than would be collected by a charitable organisation concerned with the relief of poverty. It accordingly made recommendations for the appointment of investigating officers (perhaps Probation Officers) to make the necessary enquiries,56 and the Committee also recommended a number of minor improvements (for example, giving the courts power to request and act on employers’ certificates of wages). In the event little was done,57 and 30 years later the question of how the courts could best be provided with reliable information continued to exercise official committees.58
(p.453) Enforcement of orders
It is one thing for the court to make an order but quite another to collect the payments due under it. Although the 1886 Act had given the married woman the right to a court order, and provided that it should be enforceable59 the responsibility for taking steps to enforce the order if the husband did not pay was entirely the wife’s. The court had no functions in this respect unless and until she issued a further summons against her husband. If she did so, the husband might well claim that he had in fact made payments, and it could be difficult to ascertain whether this was true or not. All this might be tolerable in the case of High Court orders for substantial amounts, but the legal enforcement procedures had not been adapted to take account of the realities of working class life.
In 1912 the Gorell Barnes Committee60 suggested that it would ‘relieve the wife of many difficulties’ if payments due under maintenance orders were made to an officer of the court: payments would be made more regularly, and there would no longer be disputes about how much was owing;61 and in 1914 legislation62 required courts to appoint a so-called collecting officer and gave the courts the power to direct that payments due under maintenance orders should be paid through a third party (thus avoiding the difficulties ‘liable to arise if the woman has to make personal application to the man for payment’).63
It has been said64 that this ‘procedural device transformed the situation of separated wives attempting to enforce their declared rights to be maintained by their husbands’; and it is true that eventually65 the justices’ clerks office became the linch-pin of what was intended to be a quick, cheap and effective tribunal, able to keep a close and constant local surveillance over the enforcement of (p.454) orders.66 The clerk’s office kept proper accounts67 and in 1949 legislation68 imposed a formal duty on justices’ clerks to act as collecting officers, and to take any necessary enforcement proceedings. Formal procedures were also supplemented by a good deal of informal threat, exhortation and encouragement,69 as well as liaison with other relevant agencies (such as local authority housing departments and the social service departments70 which, after World War II, came to play a large part in supporting one-parent families). By the 1950s, the true centre for resolving family issues for the working classes had become the office of the justices’ clerk: in evidence to the Morton Commission the Justices’ Clerks Society pointed out that in Birmingham and other comparable cities the clerk’s office collected as much as £230,000 (more than £4 million in year 2000 values), and in the course of this work received 98,000 letters and wrote some 5,000 letters each year.
Effectiveness of Justices’ Clerks’ Procedure prompts extension to enforcement of Divorce Court financial orders
In 1956 the Royal Commission on Marriage and Divorce71 acknowledged that the magistrates’ enforcement procedures had advantages (not least the (p.455) availability of the facilities of justices’ clerk’s office) over the procedures available in the Divorce Court; and it recommended that Divorce Court orders should be registrable in the magistrates’ court.72 The effect of registration would be to enable collection of payments and enforcement of arrears to be dealt with in exactly the same way as if the order had originally been made by the magistrates’ court.73 The Royal Commission also recommended74 that it should be for the magistrates to decide variation applications. The Maintenance Orders Act 1958 gave effect to these recommendations.75
The effect of these changes (which does not seem to have been foreseen) was effectively to transfer the power of dealing with much of the aftermath of marital breakdown to the magistrates’ court. This had a profound impact on the enforcement of support obligations: the law officially recognised that the magistrates’ courts had become the usual forum for dealing with default in the making of orders for periodical payments.76 Paradoxically this occurred at a time when the availability of legal aid for divorce had reduced the number of applications to magistrates for matrimonial orders; and to some extent the role of the courts changed from making and enforcing orders for the support of separated wives to that of an enforcement agency for the divorced.77 The fact that it was primarily the existence of a state-provided administrative collection machinery which had influenced the Morton Report’s recommendations was also significant for the future: it was increasingly suggested that the attempt to deal with maintenance obligations by judicial process was outdated and that court procedures should be replaced by a system of administrative assessment and recovery. But before considering this argument we should note the enforcement procedures which the law did make available.
Sanctions for non-payment: committal to prison
Breach of a court order is traditionally visited with sanctions designed to compel obedience. The Matrimonial Causes Act 1878,78 adopting the pattern which had in essence been in existence for some three centuries under the Poor Law, provided that a maintenance order was to be enforced in the same way as an affiliation order made against a putative father: if a man failed to pay within a fortnight of being notified of the outstanding arrears he would be either arrested on warrant or issued with a summons requiring him to attend court. If he then failed to pay the court could order that his goods be seized and sold. But in most cases this remedy was ineffective and the magistrates could commit him to prison for a period not exceeding three months.
(p.456) A large and steadily increasing number of men were sent to prison in this way: in 1900 the courts made 6,583 orders, and 1,288 men were sent to prison; by 1930 the number of orders made had nearly doubled79 but the number imprisoned each year multiplied by three and a half times. In the five years 1928–1932 an average of 4,062 committals were made each year. This may have been very unpleasant for the men committed but did the impoverished wives little good since imprisonment operated to extinguish all arrears due at the date of the committal, and generally no arrears accrued whilst the man was in prison.80
The prisons were becoming silted up81 with maintenance and other defaulters;82 and, at a time when mass unemployment was creating widespread distress and prompting a greater awareness of the economic problems of the working classes, pressure for reform grew. In 1932 Lord Snell83 initiated a debate on the subject in the House of Lords;84 and the Government responded85 by appointing a Departmental Committee chaired by an eminent lawyer, John Fischer Williams KC,86 to investigate the ‘enforcement of wife maintenance and affiliation orders … and to consider whether by changes in the law or in the methods of administration it is possible to reduce the number of imprisonments in default of payment, due regard being given to the importance of securing compliance with orders made by the courts’.
The Fischer Williams Committee reported within a year, and one of its recommendations was that the court should inquire into the defendant’s means and (p.457) circumstances and not commit unless the default was due to his wilful refusal or culpable neglect. This proposal was speedily implemented by the Money Payments (Justices’ Procedure) Act 1935;87 and the effect seems to have been immediate. In 1935, 2,271 maintenance defaulters were sent to prison, but in 1936 the number fell to 1,828.88 But the effect seems to have been only short-term: after World War II the number89 of committals rose to almost pre-1936 figures.
Attachment of wages instead of imprisonment?
The Fischer Williams Committee tried to produce a comprehensive and coherent package of proposals.90 For example, the Committee also recommended91 that the court be given the power to order the attachment of a maintenance defaulter’s wages. But this attack on the ‘sanctity of the pay packet’92 was anathema to organised Labour93 and not surprisingly was not immediately accepted. Only in 1957 (40 years later) did RA Butler,94impressed by the ineffectiveness of imprisonment as a means of securing payment and its harmful impact on the men concerned,95 decide to try to overcome opposition from the Trade Union (p.458) movement by emphasising the ‘unique combination of circumstances’ which made enforcement of maintenance different in principle from the enforcement of other court orders. To do so he gave an unequivocal assurance that the remedy of attachment would not be extended to other kinds of debt;96 and the Government brought forward legislation97 giving the court power to order that payment be taken from a defaulter’s earnings.
The impact of the attachment provisions was immediate, and long lasting. More than 5,000 orders were made each year in the first five years;98 but attachment did not provide a panacea:99 many orders were ineffective at least in the long term. But even so the number of men committed to prison for failure to comply with a court maintenance order fell dramatically over the years100 (notwithstanding the fact that magistrates still apparently sometimes committed men to prison without proper regard to the statutory requirements intended to ensure that committal be the last resort against a man guilty of deliberate defiance or reckless disregard of a court order).101
PUBLIC LAW AND PRIVATE LAW: THE STATE-PROVIDED SAFETY NET
No system for enforcing court orders can ever be completely effective; and the fact that a woman deserted by her husband and unable to get maintenance from him might become destitute and be driven to the workhouse to survive102 created a link between the justices and the administration of the Poor Law. Giving the married woman a direct right to seek a magistrates’ maintenance order103 (p.459) reinforced the link between the family support machinery administered by the courts and that administered directly by the State;104 but for many years105 the way in which the two systems operated was not widely appreciated.
The Poor Law was based on the principle that no one should perish from want106 but equally that the primary responsibility for support should lie with the family.107 Hence, although relief (pitched at a level ‘less eligible’ than the standard of living of an ‘independent labourer of the lowest class’)108 would be made available,109those whom the law declared to be responsible for the claimant would be required to reimburse the cost. There were two main procedures designed to this end. First, a person who wilfully refused or neglected to maintain his family was liable to be adjudged a ‘rogue and vagabond’ and imprisoned;110 secondly, legislation111 gave the Poor Law authorities the right to apply to the court for an order requiring the husband to maintain his wife.112
These powers were widely used, and over 4,000 orders requiring relatives to reimburse relief were made annually in the years leading up to the outbreak of World War I. It seems to have been thought that such orders were quickly obtained and that the procedure was effective;113 but as the Finer Committee on One-Parent Families pointed out in 1974114 the apparent success of the authorities was illusory because the result, ‘in no less than half the cases … was not reimbursement but imprisonment’.
The basic structure established at the beginning of the twentieth century (a wife has the right to apply to magistrates’ court for a periodical payment order (p.460) against a husband in breach of his obligation to support her; the State has right to reimbursement from the husband of the cost of supporting the wife and failure to support is a criminal offence) remained in place at the end of the twentieth century.115 But the interrelationship between the participants has radically changed. The most important step was the change in administrative practice to reflect the policy evidenced in the abolition of the Poor Law and the substitution bythe National Assistance Act 1948 of welfare benefits to which claimants had rights.116 No longer did the deserted wife have to seek charity: the Welfare State gave her (and all her fellow citizens) entitlements. In the words of the Finer Report:117
‘… it was the express intention of the poor law to impose a stigma upon those whom it relieved, and it was the express intention of the National Assistance Act … that the [National Assistance] Board … should not impose a stigma upon recipients of benefit. Accordingly, today the unsupported wife … both retains her legal right of maintenance which she may seek to enforce through an order of the court, and enjoys also, in her capacity as citizen, a right to support from the social security authorities which carries no stigma.’
The 1948 Act did not remove the obligation to support; but, reflecting the new entitlement based approach of the 1948 legislation, the benefit authorities changed their policy about seeking to recover payments from those who came to be called ‘liable relatives’. The authorities would no longer themselves routinely pursue husbands.118 Instead they would usually negotiate with the husband and accept any offer he made which was ‘reasonable’ having regard to his circumstances.119 If legal proceedings were necessary the benefit authorities(p.461) would (rather than taking proceedings themselves) ‘encourage and assist’ a wife left without support to apply for her own order.120
This new approach had one very real disadvantage. Many women found themselves
‘on a see-saw between the court collecting office and the [benefit office]. She would have to attend the collecting office to receive the maintenance payments, accommodating herself to the opening hours and to the company of people awaiting trial on criminal charges, or paying fines. But if, as so often was the case, the maintenance had not been remitted for her to collect… the [benefit] assessed on the basis that maintenance was in payment would be insufficient. Such women could be seen, often with children accompanying them, taking themselves back and forth between the two offices, as like as not at a considerable distance from each other, in harassed pursuit of the subsistence which each expected the other to produce’.121
Eventually—in what the Finer Report122 aptly described as a victory of realism over bureaucracy—an administrative procedure was adopted under which a wife who got her own maintenance order from the court would123 sign a certificate authorising the court’s collecting office to pay over any sums received from the husband to the benefit authorities. In return, she would get an order book for payment of her full benefit entitlement, and in this way a large number of women124 were relieved of any worry whether their maintenance orders were paid ‘regularly, intermittently, or never’.125
So far, so good. But the relationship between the practices of the benefit system, the magistrates’ courts and the Divorce Court was complicated; and in the 1970s the Finer Report’s analysis126 of what it described as the ‘disorderly and anomalous tangle of relationship between the three systems of family law’ involved led to the whole relationship between private obligation and State benefit and the respective functions of the courts and administrative agencies being brought into question. The Labour Government, returned at the October 1964 election, was committed to social reform; and its members had a traditional sympathy for the potential of the social sciences in helping to shape the agenda; and this was one of the factors reinforcing pressure for radical reform of the whole structure of family support. Over the next decade four separate enquiries (p.462)investigated aspects of the problem. First, the Committee on Statutory Maintenance Limits, chaired by a Metropolitan Stipendiary Magistrate, Jean Graham Hall,127 was set up128 to examine the financial limits prescribed by statute for magistrates’ maintenance orders. It reported in 1968.129 Secondly, a Committee on the Enforcement of judgment Debts chaired by Mr Justice Payne130 was set up, and the Committee reported in 1969. Thirdly, the Committee on One-Parent Families, chaired by Mr Justice Finer reported in 1974. Finally, the Law Commission examined the substantive law applied in magistrates’ courts, and reported on this subject in 1976. Professor OR McGregor was a member of the Graham Hall, Payne, and Finer Committees and provided a wealth of statistical and other information derived in part from research which he had directed into the social results of the exercise of the matrimonial jurisdiction of magistrates’ courts. His influence is manifest and pervasive.131
(i) The Graham Hall Report132
This report noted the history of the limits on the financial orders that magistrates could make; and, finding itself ‘unable to find any criteria which would enable us to recommend the fixing of new limits’,133 recommended that all the (p.463) existing limits be abolished.134 By a fortunate coincidence, Quintín Hogg MP135 had drawn a favourable place in the Ballot for Private Members and had already introduced a Bill intended to give power to alter the limits by delegated legislation. Hogg had declared himself personally opposed to the abolition of maxima136 but the Bill had been drafted by Parliamentary counsel so as to be easily capable of amendment to achieve that objective,137 and the Maintenance Orders Act 1968 in fact implemented the Committee’s recommendation.
It had for some time been clear that in practice the existing limits were rarely relevant, and only 2% of the orders made were for the maximum amounts then permitted. But it would be wrong to draw the conclusion that the Graham Hall Committee’s report and the legislation which gave effect to it were of little significance. The Committee took the view138 that it could not sensibly proceed without undertaking a survey of
‘the general working of this branch of law both in magistrates’ and in higher courts. For want of any earlier review of this kind, we found it the more necessary to examine how magistrates determine the amount of maintenance in individual cases, the nature of the maintenance obligation, relations between magistrates’ and other courts, the method of initiating proceedings and the subsequent enforcement and variation of orders, the circumstances of the parties and the social background against which these proceedings take place. Our report … gives our view of the whole pattern of the operation of this jurisdiction. The matter is complex because the interests and obligations of the State and the individual are often in competition; because many of those affected are without resources and in poverty; and because, set beside [state benefit provision] the financial arrangements secured through the courts inevitably appear cumbersome, inconvenient and much less assured’.139
—and in effect much of the Report seems to have been primarily designed to furnish the basis for a critique of the whole system of family support.
The Committee’s review of the working of the magistrates’ jurisdiction incorporated many of the findings140 of the Bedford College research survey directed (p.464) by McGregor141 who had already become convinced142that the magistrates’ courts merely performed ‘at great social cost and disadvantage for the lumpen proletariat what the high court achieves efficiently and finally for the better off and better informed’. For the next few years McGregor devoted much effort to attempts to eliminate what he believed to be the ‘terrifyingly wide … abyss between reality and myth’;143 and the Graham Hall Report can be seen as the preliminary bombardment in a campaign which concluded with the publication in 1974 of the Report of the Finer Committee. Although theGraham Hall Report does not specifically refer to the issue whether the system of family law administered by magistrates’ courts should survive, the Report makes it clear that it would soon become impossible to avoid confronting that issue.
The Committee also recorded its belief144 that historically the working class family became a ‘going concern only within the protective shelter of expanding social services …’; and, undeterred by the fact that the subject was manifestly not within its terms of reference devoted a (brief and tentative) chapter to the question ‘How Far Ought Maintenance to be Based on Court Proceedings?’ It did not answer145 the question it had posed but did state its belief that re-organisation of the system required a new perspective of State and personal obligations to fatherless families and that a full study of possible change should be undertaken as soon as possible.146 The Committee claimed that the evidence it had received would encourage ‘those looking at the wider issues to strive for a more rational inter-relation of the roles of the State and the individual in the maintenance of ‘fatherless families’’. Far-reaching evolution of the maintenance system would be found necessary.147 This reflected a view at the time widely held and stated with great clarity by Professor L Neville Brown148 that the private law of maintenance would
‘tend to wither away and its place assumed by social security legislation … [B]y the year 2000 the law will have abandoned as socially undesirable, frequently ineffectual and (p.465) wholly uneconomic the hounding of spouses through the courts for non-support of their families. Non-support … will be ranged alongside those other vicissitudes of life—unemployment, sickness, industrial injury, child-birth, death itself—for which social insurance should make provision’.
(ii) The Payne Report on the enforcement of judgment debts149
This Committee was clearly not intended to have any part to play in these broad discussions of social policy; but the Committee’s terms of reference were extended to cover enforcement of orders made by magistrates in their civil jurisdiction, and this brought matrimonial and other maintenance orders150 within the Committee’s remit.151 As the Committee’s Report puts it152 (perhaps with a slight note of weariness) the extension greatly added to its labours ‘more, we confess, than we had imagined at the time’—and it is perhaps not surprising that although the Committee was appointed on 3 March 1965 its 455-page Report was not published until February 1969. The extension required the Committee to consider, not only the emotive issue153 of whether imprisonment should be retained as the ultimate sanction for the enforcement of maintenance obligations but also suggested to many that the Committee could be persuaded to recommend a dramatic shift towards acceptance of an administrative model for determination and collection of maintenance assessments for separated wives and their children. In their deliberations, the Committee recorded154 that
the ‘most common and persistent proposal [was] that the entire responsibility for the maintenance of separated wives and their children should be taken over by the Ministry of Social Security. The details of the schemes advanced vary but the general aim is that the Ministry should pay to a separated wife the weekly sum which she requires for the proper maintenance of herself and her children, that she or the Ministry should wherever possible obtain an order against the husband, and that the Ministry should recover from the husband or, in appropriate cases, from his employer by means of attachment of wages, such sums as can be obtained in reduction of the amounts paid by the Ministry to the wife’.
The Payne Report155 accepted that such a Tar-reaching scheme of social welfare’ was outside its terms of reference, but recorded that it would be failing in (p.466) its duty if it did not draw attention to the importance of a scheme of this kind; and it also emphasised that the problem of providing for the financial consequences of marital breakdown stemmed from the fact that a man with a modest income could not make reasonable provision for the maintenance of two homes of the same standard, and that in these circumstances156 there was ‘likely to be an overall dependency on the state’. The problem, the Committee recorded, was
not one ‘of enforcement but of economics, and we cannot too strongly or too often invite attention to the simple fact that no improvement which we can suggest in the machinery of the courts will put more money into the pockets of husbands … or enable them to meet commitments beyond their capacity to pay … Whatever may be done in the approval or implementation of our recommendations, the basic problem of providing adequately for many deserted or separated wives and their children would remain to be solved by other means’.
It was perhaps comparatively easy to obtain unanimity about a passage in the Committee’s Report which did not commit its members to anything. In relation to many of the matters which did require a positive decision the Committee was evidently deeply divided.157 It is true that the Committee did unanimously recommend that the enforcement of civil debts and court orders should be placed in the hands of an enforcement office, operating an integrated system of enforcement, based on proper enquiry into the means and circumstances of the debtor;158and the Committee did recommend that attachment of a debtor’s earnings should be available as a means of enforcing all debts159 (and not merely the maintenance orders to which attachment had been extended in 1958) and it did unanimously recommend that imprisonment should be abolished as a remedy for debts other than family maintenance obligations.160 But the Committee was split on whether imprisonment should be retained in respect of failure to discharge maintenance obligations;161 and there were significant differences of opinion about many other detailed recommendations. The Government (notwithstanding the fact that the existence of the Enforcement Office was clearly seen by many of the Committee’s members as essential to its other recommendations)162 refused to create such a (p.467) system.163 But it did extend attachment to all civil debts;164 and did nothing to restrict (much less remove) the courts’ power to imprison those who defied maintenance orders.
In terms of specific change in accordance with identifiable recommendations the Payne Committee made little impact on family law; and at a more general level the Payne Committee did nothing to minimise the feeling that the enforcement of maintenance obligations by private law means brought the law to the margins of its effectiveness. But the Committee’s failure to agree on issues central to its terms of reference highlighted the difficulties of achieving consensus on major reform affecting the legal system, particularly in the face of opposition from those who could claim expertise in the administration of the existing law and who could point to difficulties likely to be experienced in the actual working of any new system. This might have served as a warning to the members of the Finer Committee, but it apparently did not.
(iii) The Finer Report
The Finer Committee165 was appointed on 6 November 1969 with breathtakingly wide terms of reference: to consider ‘the problems of one-parent families in our society’.166 As Professor McGregor (an especially active member of the Committee)167 subsequently168 wrote:
The terms of reference ‘involved an examination of some of the fundamental moral, social and economic issues of today … Most of the questions … which had to be answered focussed on the social status and economic situation of women in British society. Thus the Committee had to begin their work by searching for light and order among a welter of disparate issues. One route lay through family law. Since the law and the courts are prime agents in the regulation of marriage breakdown and unmarried parenthood, the state of the law and its administration has a direct bearing on everyone … in one parent families. This becomes even clearer given the fact that the law here includes the law of social security. The heavy dependence of poor one parent families on the law of supplementary benefit explains why the Committee paid a great deal of attention to the relationship between the private law of family maintenance and the public law of(p.468) social security and the institutions which manage them. The Committee quickly discovered169that the legal scene was a chaos of overlapping jurisdictions and conflicting philosophies, strewn with … much debris from earlier centuries …’.
The Finer Report is an outstanding piece of social and historical analysis. The Report noted170 that ‘nothing could exceed the confusion created by three modes of assessment of a liability, all different from each other, and two of them employed by courts of law acting in ignorance of the third mode which the [Benefit authority] use in making decisions which affect the very same group of people’; and the Report’s recommendations were based on the belief that the lack of integration of the ‘three systems of family law … administered respectively by the divorce courts, the magistrates’ courts and the supplementary benefits authorities’ was a ‘major cause of the hardships from which many one-parent families suffer’.171 89 of the Committee’s 230 recommendations (contained in a text which, with appendices, ran to 910 printed pages) dealt with reforms of the substantive and procedural law of maintenance, whilst a further 28 recommendations covered the Committee’s proposal for a Guaranteed Maintenance Allowance (which would be a substitute for maintenance in the hands of lone parents).
The Committee proposed what Professor McGregor described as ‘two fundamental changes in family law and its administration’.172 First, the Committee believed that it had assembled ‘compelling evidence to demonstrate that the very existence and persistence of the dual jurisdiction [with the High Court and County Court on the one hand and the summary jurisdiction of magistrates on the other], and of the attitudes and institutions stemming from it, account for the presence in magistrates’ courts of many very poor folk who possess neither knowledge nor expectation of any other legal cure for their marital ills’.173 The Committee accordingly recommended that the domestic jurisdiction of magistrates’ courts174 be abolished; and a system of family courts established. This proposal is considered in the last chapter of this book.
Secondly, the Committee recommended a major shift from judicial to administrative procedures in assessing the liabilities of relatives to support one another. There were three essential elements in the proposal:
(i) The Supplementary Benefits Commission would assess the means of the husband175 and determine what it would be proper for him to pay to the Commission in or towards satisfaction of the money they have paid out to the wife in welfare payments. The Commission would make an ‘administrative order’ requiring the husband to pay the amounts assessed. The amount of the administrative order would never exceed the amount of the wife’s entitlement to supplementary benefit;176 and it would be calculated ‘in accordance with published criteria for assessment’ (which would leave the husband an amount out of his own income exceeding the amount to which he and any dependants would be entitled if he were on supplementary benefit).
(ii) A woman who considered she had a claim for maintenance at a rate higher than her benefit entitlement would still be able to go to the court for a maintenance order; but in the great majority of cases there would be no need for the wife to have any dealings with the husband at all.
(iii) The Commission would never have to pass judgment on matrimonial conduct (although the husband would be entitled to apply to the court, which might in exceptional cases take the parties’ conduct into account).
In addition the Committee recommended the creation of a special non-contributory social security benefit, to be known as the Guaranteed Maintenance Allowance pitched at a level substantially above the Supplementary Benefit level and only means tested to a restricted extent.