GUARDIANSHIP AND MAINTENANCE OF INFANTS BILL [H.L.] (Hansard, 5 July 1951)

§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I rise to move that this hill be read a second time. It is a small Bill, but it deals with an intricate and important subject. On reflection, my reading, of the Bill convinces me that our law on this subject is in rather a muddled stae. We have two broad codes — one, those Acts which deal with wife maintenance, the Summary Jurisdiction (Separation and Maintenance) Acts, and another, the Guardianship of Infants Acts. Then we have certain Statutes like the Maintenance Orders Act, which we passed last year, Which applies to both of them. These two codes are not quite consistent, and I think this is one of the topics which, when we have time, we might usefully consider as subject-matter for consolidation, together with, perhaps, the Bastardy Acts.
However, it is not the object of this Bill to do anything of that sort. It has been drawn with strictly limited objects, and I hope that it will not occasion controversy or difficulty. It sets out to do two things: first, to alter the law relating to venue in proceedings under the Guardianship of Infants Acts. These are Acts which enable a court to make orders for the custody and maintenance of infants. The second purpose of the Bill is to cure an anomaly that has arisen in the amount of maintenance that may be ordered by a court of summary jurisdiction.
Last year, in the case of The King v. Sandbach Justices, the High Court held that applications under the Guardianship of Infants Acts (there are two such Acts, the first dated 1886 and the second dated 1925) to courts of summary jurisdiction 654 can be made only to the court for the place in which the respondent resides. That arose in this way. The Guardianship of Infants Act, 1886. defined, so far as England was concerned, the court having jurisdiction to entertain guardianship applications as the High Court and the county court of the district in which the respondent resides. The Guardianship of Infants Act, 1925, which first conferred a limited jurisdiction on courts of summary jurisdiction, did not say expressly which court of summary jurisdiction was to be competent—the court for the place where the respondent resides, or the court for the place where the applicant resides, or both.
Until the decision of the High Court in the Sandbach Justices case last year, many courts of summary jurisdiction had been in the practice of following the general rule in the Summary Jurisdiction (Separation and Maintenance) Acts, and of entertaining applications in the court for the district where the applicant resided. Under those Acts, the Separation and Maintenance Acts, the venue lay where the cause of complaint wholly or partly arose, which generally included the court for the place where the applicant resided. In 1949, however, the Married Women (Maintenance) Act of that year extended the jurisdiction so as to include expressly the court for the place in which the married woman or her husband resides. We think it well that the applicant's court should have jurisdiction, and we think it right to extend the jurisdiction for that purpose. That, we believe, would be in keeping with the modern tendency in summary jurisdiction law. By this Bill, therefore, we propose to give the courts of summary jurisdiction the power which, before this recent High Court decision, it was generally thought they possessed, and this applies whether the applicant is the father or the mother.
In addition, we propose to give jurisdiction to the court for the place in which the infant is. We propose to apply both these changes to the county courts for conformity. It would be wrong to regard this proposal as a proposal to favour the woman as against the man. In guardianship cases, it is a fundamental principle that the interests of the infant are paramount, and we believe that the easier it is to bring the case before a court, the better the infant's interests are likely to be served. The extension of venue is in 655 Clause 1 (1), and in Clause 4 (1) we propose that orders which turn out to have been made without jurisdiction should be validated. This is an exceptional provision, I agree. But unless we do that, we shall inflict very great hardship in a large number of cases on people in quite humble circumstances. We should, indeed, cause grave doubt to be cast on the position of those concerned in cases which arose before the commencement of the Act. I need hardly inform your Lordships that the jurisdiction of the High Court is in no way affected.
As for the second main purpose of the Bill, as I have said, orders for the custody and maintenance of infants may be made under the law relating to wife maintenance and under the Guardianship of Infants Acts, although the two methods of procedure are not completely interchangeable. In the Married Women (Maintenance) Act, 1949, the amount that might be awarded by a court of summary jurisdiction in connection with a wife maintenance order was raised from ten shillings to thirty shillings a week. Since then, there has been the anomaly that orders made under the Guardianship of Infants Acts are limited to twenty shillings a week, whereas the maximum for similar orders under the other Acts is thirty shillings. We therefore propose that the maximum in orders under the Guardianship of Infants Acts, and certain analogous orders, which are referred to in Clause 2, should be raised from twenty shillings to thirty shillings. This is done in Clause 1 (3) and Clause 2 of the Bill. This Bill applies only to England, except for the clause which adjusts the position of income tax under the new maximum payments, which, for the purpose of uniformity, is applied also to Scotland; and I gather that for that limited purpose our Scottish friends welcome the application of the Bill. That is the substance of the Bill. I commend it to your Lordships, and beg to move that it now be read a second time.

§ VISCOUNT SIMON
My Lords, those of your Lordships who have listened to the explanation of the noble and learned Viscount the Lord Chancellor will have no doubt that we should assist in passing this measure into law. Perhaps 656 I may translate what the noble and learned Viscount has said with so much accuracy and learning by imagining a single and simple case. Suppose that a married couple, Mr. and Mrs. X, have separated and are living in different parts of the country, Mrs. X in Surrey and Mr. X in Yorkshire. They have a child, and the mother, Mrs. X, desires the court to appoint her as the guardian of the child, which in most cases is an entirely proper thing to do. The child may be with the mother, but it is possible that it may be elsewhere—let us say in Wales. As the noble and learned Viscount has explained, as the law stands at present if Mrs. X, living in Surrey, wishes to apply to the court for an order giving her the guardianship of the child, and if she desires to apply either in the county court or to the magistrates, as is usual in the case of poor people, she cannot do it in the place where she lives. She must search out Mr. X in Yorkshire. She must, of course, serve him with the proper process, because these orders cannot be made without his knowledge. Then she has to take her proceedings in a county court or before a magistrate in Yorkshire, going there for the purpose. That is the only jurisdiction which at present can be exercised by a county court or justices in these cases.
As I follow the Bill—and the noble and learned Viscount the Lord Chancellor will correct me if I am wrong—its effect, so far as the first and more important provision is concerned, is as follows. It provides that in future Mrs. X, living in Surrey and wishing to apply for an order for the guardianship of her child, may take proceedings in Surrey where she lives; or in Yorkshire, where her husband lives; or in Wales, where her child happens to be. I should think that that arrangement is one which most people would think fair and reasonable, it being always understood that before an order is made the husband has to be served with notice that his wife has made an application for the guardianship of the child. The court will consider the circumstances, hear the respondent, if he chooses to turn up, and make a suitable order. The woman will be saved travelling to another part of the country, and obviously justice will be more conveniently, expeditiously and cheaply done.
The noble and learned Viscount the Lord Chancellor says he thinks the Bill 657 should also include a provision for the application to be made in the court in the district where the infant happens to be, which in most cases would be where the mother is, though not necessarily always so. This question occurred to me —and perhaps the noble and learned Viscount will say a word on it, if he thinks fit to say anything at all at the end. If Mrs. X has made an application in Yorkshire and has failed, can she subsequently make another effort by applying in Surrey; and if she fails in Surrey, can she make a further application in Wales? No doubt the answer is that, once having been made, an order is intended to remain either in her favour or against her, without allowing her to try again before a different tribunal, unless the circumstances have changed. I do not think the point is entirely an easy one, but no doubt the noble and learned Viscount the Lord Chancellor has considered it or will consider it. Of course, if the application were made to the High Court, as there is only one, obviously there cannot be any question of that sort. If the circumstances have changed, the woman who has failed in the first instance may succeed in the second instance, but apparently it is not intended that she should be able to apply to a series of courts rather in the way in which some people apply for a writ of habeas corpus to every Judge on the Bench, one at a time.
That, I think, is a simple but practical illustration of the way this Bill is meant to work, and I should think that it will commend itself to the good sense of all your Lordships. The other provision, making the amount of money which can be ordered to be paid correspond with the two sets of Statutes, is obviously right, and it is not worth spending time dealing with it. Therefore, so far as I have any judgment to offer the House in the matter, I should say that this is clearly a case where the House will be prepared to give the Bill a Second Reading, and will be glad to see it pass into law.

§ THE LORD CHANCELLOR
My Lords I am grateful to the noble and learned Viscount for what he has said. The only point with which I want to deal is the question of the second application. I agree that the point is not altogether easy but I have the authority of the case of The King v. Middlesex Jastices, ex parte Bond, for this proposition, 658 where an application was made to the Middlesex Justices and was refused, and then the person being refused that application went back to the Middlesex Justices and again asked for an order. There being no change of circumstances (if there is a change of circumstances the question does not arise) it was decided that the defence of res judicata applied; that is to say, the case had been decided and could not be raised again. It is true that in that case both applications were made before the same court, but I believe the same principle would apply, and that the same decision would be reached even though one of the applications were made to a different court of summary jurisciiction; that is to say, if there were no change of circumstances I believe the defence of res judicata would still be applicable; it would be said that the matter having been adjudicated upon, and there being no change of circumstances, it could not be reopened. I believe that to be the answer, but I take this opportunity of mentioning it so that it may be looked at by any of your Lordships who has been good enough to take an interest in this matter. For the rest, I am grateful to the noble and learned Viscount for what he has said.