CONCEPTS RELEVANT TO THE CHILD SUPPORT ACT
Two concepts will now be examined as relevant to a wider understanding of the Act. The first is the government’s understanding of the notion of ‘parental responsibility’. The second may be seen as another way of interpreting the first, and this is the concept of ‘private patriarchy’. The latter will be discussed with particular reference to Sylvia Walby’s work (1990).
The principle of ‘parental responsibility’ is found in the Child Support Act, also in the Children Act 1989 and the Criminal Justice Act 1991. Edwards and Halpern (1992) argue that the parental responsibility concept is a central theme underpinning recent legislation on children’s welfare and their financial support, and children’s criminality. They suggest that the concept creates a suitable moral climate in which various policy changes can be justified. While the different types of parental responsibility present in the three Acts—the Children Act,
Child Support Act and Criminal Justice Act—are not always consistent, the concept is ‘used as a powerful instrument of social policy in shaping the family’ (Edwards and Halpern 1992:118). It promotes parental responsibility in place of state responsibility, a position that is sustained by laissez-faire ideology, although it is also— inconsistently with laissez-faire—a mechanism of greater state control.
It can be argued, then, that the government is using the notion of parental responsibility in a unified way. The concept meshes with a wider strategy for broader family responsibility, more private dependency, and fewer state-dependent families. It may be noted that the Children Act 1989 did not originate in a desire to expand parental responsibility as the government defines and values it, nor is the Act only about this. But certain elements in the Act tend in this direction. The principle of minimum intervention set out in Section 1(5) states that a court may not make any order regarding a child unless satisfied that this is a better outcome for the child than no order. Such a principle, alongside the definition of parents as having responsibilities rather than rights in Sections 2 and 3, highlights the government’s aim of leaving more responsibility to parents and less to the state. Parental responsibility cannot be surrendered, and can only be transferred following a court hearing. Absent parents’ who have once been married do not lose parental responsibility. Unmarried fathers can achieve it by order or agreement (Section 4). As I have commented elsewhere, ‘In a sense the Children Act has been “used”. The vastness of the Act, the debates that focused on other important sections, enabled the parental responsibility and non-intervention sections to pass with, perhaps, less scrutiny than they deserved’ (Fox Harding 1994:102).
The Criminal Justice Act 1991, on the other hand, makes parents more accountable for their children’s criminal behaviour. Looking at parental responsibility in the three Acts, Edwards and Halpern (1992) identify three major, not always consistent, threads:
1 responsibility that emphasizes an emotional and psychological commitment,
2 financial responsibility (to the state, for children),
3 blame for a failure of parental responsibility which contributes to delinquency.
It is the second of these, financial responsibility, but not necessarily the other two, that is relevant to the Child Support Act. Parental financial responsibility is widened. Other measures also in effect increase the financial burdens of parenthood, while reducing the cost of young people to the state: for example, the removal of income support rights for 16- to 17-year-olds.
Eekelaar (1991) has also explored the notion of parental responsibility, in relation to the Children Act. He argues that parental responsibility here can represent two ideas:
1 Parents must behave dutifully to their children.
2 Responsibility for child care belongs to parents rather than the state.
It is the second idea, of parental rather than state responsibility, that, Eekelaar maintains, came to be dominant during the development of the Children Act. It rests upon an ideology ‘which identifies the legal concept of parental responsibility with a perception about the ordering of relationships in the natural world’ (Eekelaar 1991:37). This ideology has led to a weakening of the state’s supervisory role in relation to parent-child relationships. Eekelaar argues that the expression ‘parental responsibility’ changed its function over the 1980s, and a slippage occurred from responsibility 1 to responsibility 2. The first refers to parental behaviour towards the child, the second to the role exercised by the parent as opposed to someone else. In the Children Act the shift from responsibility in the first sense, dutiful behaviour, to responsibility in the second, parents rather than the state, is shown by a number of instances. First, parental responsibility is pre-eminently individual responsibility rather than lying with state institutions; and second, parental responsibility may not be voluntarily surrendered to the state; while third, parental responsibility remains undiminished even when child care is ‘shared’ with the state. The fourth point is that parental responsibility cannot be surrendered or transferred to another individual; and the fifth that there is a general weakening of state power and control over parental conduct. Eekelaar points out, with relation to the fourth point of non-surrenderability, that parental responsibilities under the Children Act endure with more tenacity than parental rights and duties under the previous scheme. Responsibility is retained by both parents after divorce, for example. A parent cannot divest himself or herself of the legal responsibility of his or her parenthood ‘even through the agency of a court order’ (Eekelaar 1991:43, italics in the original).
In the context of the Child Support Act, the state appears more closely involved in parental duties, but only in specifying more strongly how financial obligations should be met. This is being done with the aim of shifting the costs of children away from the state and back to individuals. The state is supervising more closely in order to shed a responsibility. Thus there is an increase in state control, not of the way parents behave to their children in a general sense but only of how much absent parents pay out. The state is then withdrawing from its responsibilities, not its power. And the financial responsibility of biological parenthood may not be voluntarily surrendered under the Act, even if the offer were made to surrender all ‘parental rights’ with it. The only way out for a parent wishing to absolve himself or herself of the financial obligations of parenthood would be via the child’s adoption by another party, or via a denial of biological parenthood. Parental responsibility in the Act is thus tenacious, and this is regardless of marriage or anything else regarding the relationship between the two biological parents. In this sense the Act is innovative, as family law has hitherto made distinctions between children on the grounds of their parents’ legal relationship.