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The Jersey Law Review - June 2003
SHORTER ARTICLES AND NOTES
A CHILD’S LEGAL RESPONSIBILITY TO CONTRIBUTE TOWARDS THE WELFARE OF ITS PARENTS
Andrew Belhomme
1 On February 5th, 2003 the States Assembly resolved, in principle, “that the customary law obligation of children to contribute to the support of parents who are genuinely no longer able to care for themselves should be removed for the purposes of assessing Parish Welfare”. The Employment and Social Security Committee was charged, in conjunction with the Comité des Connétables, to bring forward for approval detailed proposals on the most appropriate manner to give effect to the proposed change. What then is the extent of the customary law obligation? Are children who are financially solvent legally obliged to contribute to costs expended by a parish in respect of long term nursing care afforded to their parents?
2 In examining this question it is necessary to begin by considering the duty of parish Constables to provide generally for the welfare of their parishioners. This duty is now embodied in the Poor Law Amendment (Jersey) Law, 1953, article 1 of which states-
“Subject to the provisions of this Law, the duty of a parish to assist persons in need who were born in the parish, and the dependants of such persons, shall devolve upon the parish in which such persons are ordinarily resident.”
3 The wider duty of a Constable to act as ‘father of the Parish’ was confirmed in Cooper v Public Health Committee and others. In that case, Bois, Deputy Bailiff, stated that -
“….persons without property come under the care of the public authority in the person of the Constable.”
The Court continued -
“We treat it as axiomatic that the needs of the community require the Constable of a parish to protect all persons within his parish who are in need of protection by reason by their youth, age or mental or physical incapacity.”
And finally, at page 693 the Court stated -
“The poor chargeable to the parish must be protected and public order must be maintained within the parish.”
4 As against this it is clear that commentators on the customary law of Jersey (notably Poingdestre and Le Gros) strongly support the view that a child may be called upon to contribute towards the maintenance of his or her parent in cases where the parent is without means and incapable of working. There is also some support at customary law for the contention that third parties (such as parochial authorities) who have voluntarily contributed towards the maintenance of persons who have children of means can seek to recoup their expenses from the children.
5 By way of illustration, Poingdestre in Les Lois et Coutumes des l’Ile de Jersey states -
“Celuy qui a fourny les aliments a quelque personne en necessité, lesquels un autre estoit tenu de fournir, peut pour lesdits aliments, auoir son recours contre celuy qui estoit tenu de les fournir, et les repeter d’Office de Juge. Et par ainsy (le pere ou ayeul paternel viuants et capables) si la mere a fourni les aliments a son enfant, outre les 3 premieres années d’alaictement, elle les recouurera par Action, contre le Pere ou Ayeul, ou contre leurs heritiers: ce que se doibt estendre aux autres parents plus esloignez, voire aux estrangers; lors qu’il y a eu ou refus de fournir les aliments ou negligence trop paroissable, de la part de ceux a qui cela touchoit. Et la raison en est, d’autant qu’on ne peut supposer que la mere, ou autres plus esloignez, ayent entendu de faire parjure charité, ce a quoy d’autres aussy capables et plus proches qu’eux, estoient obligez par la Loy, et pouuoient estre contraints par le Juge.”
6 From this one can gather that in the opinion of Poingdestre a person who chooses to maintain a third party may (inter alia) look to recoup his costs from those viewed by the law as responsible for providing for that person. To this end the claimant may seek the assistance of the Court.
7 Le Gros in his Traité du Droit Coutumier de L’Ile de Jersey states -
“Les enfants sont tenus de pourvoir aux besoins de leurs parents indigents; chacun contribuant selon ses moyens. Cette obligation est fondée sur le droit naturel. v. Basnage…. Deux éléments sont essentiels à cette obligation: il faut que le père et la mère soient sans moyens, et incapables par leur état de santé ou leur vieillesse de travailler.
Lorsqu’il y a des enfants qui sont en mesure de fournir les aliments à leurs parents, et d’autres qui n’ont que les nécessaire, ceux-là peuvent être condamnés, même solidairement, à fournir à leurs parents ce qui leur est nécessaire pour la vie.”
8 In Le Gros’ view children are therefore bound (according to their means) to contribute to the maintenance of their parents. Two elements are essential to this obligation, namely, that the parents are without means and that they are incapable through ill health or old age from working. The reference to Basnage underlines the face that these principles have their roots in the customary law of Normandy.
9 The extract from Poingdestre (supra) would suggest that others fulfilling an obligation of this sort on behalf of an errant child would be entitled to recover the cost of so doing from the child.
10 The contention that children are bound to contribute towards the maintenance of their parents is further supported by a line of cases decided in the latter part of the nineteenth and early part of the twentieth centuries (reported in the Rolls of the Royal Court with the brevity which particularised reports of the time).
11 P.G. v Frost et aus. was a case involving two sons convened before the Superior Number by the Attorney General. One son declared that he was prepared to pay the General Hospital Committee for his father’s upkeep. The Court condemned the remaining son to make a similar contribution.
12 In P.G. v Le Feuvre et aus, the Attorney General presented to the Royal Court a report of the Constable of St. Ouen. The Constable had received numerous requests from Miss Elizabeth Le Feuvre for assistance in relation to her mother. The Constable believed, however, that Mrs. Le Feuvre’s children were able to assist. He held a Parish meeting. One son failed to appear but informed the Constable that he was prepared to pay towards his mother’s upkeep. The other children said that they had paid in the past and (alleging that they were without means) refused to contribute. They were convened before the Court and condemned to pay. The Court held that -
“d’après la Coutume de L’Ile, il est du devoir d’enfants en état de fournir aux besoins nécessaires de leurs parents tombés dans l’indigence et hors d’état de pouvoir par leur travail ou leur industrie se procurer les alimens necessaires d’assister leurs parents dans leurs besoins.”
It is worthy of note that a subsequent civil action instituted by Miss Le Feuvre before the Royal Court seeking to enforce the contribution of her eldest brother was discharged.
13 In Avocat Stipulant & ca. v Druce, the Attorney General (at the request of the General Hospital Committee) convened before the Court the son of Mary Ann Druce (a 71 year old resident of the General Hospital). The Court condemned him to pay for his mother’s upkeep. A subsequent contempt of the Court’s order (the son having failed to pay) led to Druce being condemned to 8 days’ imprisonment with hard labour.
14 In Re Le Gresley the Attorney General presented to the Court a report of the Constable of St. Brelade which showed that Mrs. Elizabeth Le Gresley (widow of Thomas Guillaume) was a person without means. She had approached the St. Brelade parochial authorities for assistance but was known to have a number of sons and daughters. The children were duly convened before the Court and condemned (in different proportions according to their respective means) to contribute towards the maintenance of their mother.
15 In Re Springate - Représentation du Connétable de St. Martin, there was presented to the Court a report of the Constable of St. Martin showing that 75 year old James Springate was a person without means and had requested support from the parish. He had numerous sons and daughters. The Constable had negotiated with the children, some of whom had agreed to contribute to their father’s upkeep on condition that the remaining children did so. The remaining children had refused and the Constable had therefore convened all the children before the Court. The Court condemned the children to pay.
16 Finally, in Re D’Avoine, Rapport du Connétable de la Trinité, there was presented to the Court a report of the Constable of Trinity which showed that Jean D’Avoine (aged 68) was a person without means who was being maintained by the parish. The report also showed that he had two sons (one of whom the Constable knew owned immovable property) and a son- in-law. The Constable had asked the sons to contribute towards the upkeep of their father but they had refused. He had therefore ordered them to appear before the Court. The Court accepted an offer by the eldest son to contribute.
17 In summary, it will therefore be seen that a Constable’s duty to provide welfare to persons in need ordinarily resident in his parish is now embodied in article 1 of the Poor Law Amendment (Jersey) Law, 1953. The wider duty of a Constable to act as ‘father of the parish’ was confirmed in Cooper v President of the Public Health Committee. Notwithstanding this statutory duty of the Constable it is clear that at customary law children have an obligation (according to their means) to contribute towards the cost of maintaining their parents. This is strongly supported both by the writings of Poingdestre and Le Gros and a line of Royal Court cases decided in the latter part of the nineteenth and early part of the twentieth centuries. It is also clear from the passage cited from Poingdestre that third parties (such as a parish), who have borne the cost of providing towards the maintenance of parents neglected by recalcitrant children, can seek to recover their costs from the children.
18 Clearly, any amount sought by way of contribution or reimbursement would have to be reasonable and this test would undoubtedly be based upon an objective appraisal of the means of the children in individual cases. If contested before Court in a modern day context one may surmise that the test of reasonableness would no doubt be based upon affidavit evidence filed in the usual way (as in, for example, ancillary matrimonial proceedings). If the children were to refuse to make the required contribution or reimbursement, it would be for the Connétable to decide whether to institute proceedings before the Royal Court. The last of the line of Royal Court cases referred to above was decided as long ago as 1913. Whether a Connétable would choose to institute such an action before the Royal Court at the commencement of the 21st century (or whether the Court in a modern day context would be prepared to make similar orders) remains to be seen.
19 Nevertheless it is perhaps worthy of note that no member of the States seemed to think that children retained any form of moral obligation to support their parents in their sickness or old age. What Basnage described as a “natural obligation” in the eighteenth century is, apparently, no longer of any account in 2003. One member at least did appreciate the irony of encouraging parents to transfer all their assets to their children and then to claim the need for financial support from the ratepayers. In a blatant case this might amount to fraud. But, if carefully arranged, criminal liability could probably be avoided. One hopes that this potential injustice is taken into consideration before the obligation at customary law of children to support their parents is casually swept away.
Andrew Belhomme is an advocate of the Royal Court and a Crown Advocate employed in the Law Officers’ Department, Morier House, St. Helier, Jersey.
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