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Father fails with child maintenance argument on Sark

It’s not often that my jaw drops when I’m reading a law report, but I’m currently picking my lower mandible up off of the floor. From time to time something surprising crops up in a report, but the report of the Privy Council case A v R (Guernsey) contains a truly incredible assertion by a father. If I have read it correctly – as we will see, some of the terminology is a little, shall we say, quaint, and the judgment also slips into French on occasion.

The case concerned an appeal by a father against an interim maintenance order made by the Court of the Seneschal of Sark (yes, on Sark the archaic term ‘Seneschal’ is still used – I think last came across it whilst reading a medieval history book) on 14 August 2013, requiring him to pay maintenance for his son to the child’s mother, to whom (I assume) he was not married. Nothing unusual about that, you may say. Well no, but for the father’s defence. He was essentially saying that the court on Sark, in the 21st Century, did not have the power to require a father to maintain his child.

The father argued firstly that the Court of the Seneschal of Sark did not have jurisdiction to deal with such matters. (It is probably relevant to explain at this point that Sark has a population of just 600). However, Lord Hodge, giving the leading judgment of the Privy Council (or ‘the Board’, as it calls itself) determined, after a brief trip through the history of the island, beginning with the loss by King John of continental Normandy in 1204, that the Court has “unlimited jurisdiction in civil matters”.

The father’s second argument (if I have it correct) was that, there being no statutory right on Sark of an unmarried woman to obtain a court order against the father to pay maintenance for his child until 2017(!), the matter could only be dealt with under the common law (that is to say, law not contained in statute – primarily law created by precedent, i.e. previous court decisions). However, that did not apply as the law of Sark could only be changed by legislation. Again, Lord Hodge gave this short shrift, after delving further into the history of the Bailiwick of Guernsey, of which Sark is a part.

So what, then, was the law of Sark on the maintenance of children prior to 2017? To answer this Lord Hodge dipped once more into the history books, and even the Bible, concluding:

“The Board is satisfied not only that the obligation of a parent to maintain a child, whether born within or outside of a marriage, is part of the customary law of the Bailiwick of Guernsey, including Sark, but also that Sark has an action for maintenance of that child, which the parent caring for the child can raise when the child is not of an age at which he or she can assert the right to maintenance himself or herself.”

The father also raised a couple of other arguments that I will not go into here. Suffice to say that the Board was not impressed by them either.

Accordingly, the Board found that prior to 2017 the Court of the Seneschal of Sark had the power to make the order it did under the common law of Sark. The father’s appeal therefore failed, and was dismissed.

A remarkable judgment. I didn’t think I would ever come across a case in which it was argued that there was no law requiring a parent to maintain their child in a part of the UK (OK, a UK dependency) in the 21st Century. I know that Sark has its own foibles (it is one of the few remaining places in the world where cars are banned, but who can blame them for that?), but the duty to maintain one’s child is such a basic thing that (as the judgment confirms) it has been recognised for centuries. It would have been unthinkable that it did not apply in Sark.

You can read the full report of the case here (note that paragraphs 3 to 13 contain a technical discussion about appeals to the Privy Council, which lies beyond the scope of this post).

Aerial view of the island of Sark by Philllip Capper via Wikipedia under a Creative Commons licence

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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