HC Deb 16 May 1930 vol 238 cc2234-42

I beg to move, in page 2, line 22, leave out from the word "father," to the end of line 31, and to insert instead thereof the words but no declarator of paternity shall be pronounced, no proof shall be taken, and, subject as hereinafter provided, no operative decree for payment shall be pronounced in such action until after the birth of the child, but where the action is undefended, or where parentage is admitted by the defender, the court may at any time make an interim award of lying-in expenses, as also an interim award of aliment, to commence at the date of the birth of the child. As originally framed the Clause provided that no proof of paternity should take place before the birth of the child, but it was possible, where the action was undefended, or paternity admitted, for the question of aliment to be gone into before the birth of the child. That aspect of the question was considered in the Committee stage and the supporters of the Bill think that it would not be advisable to have any proof at all before the birth of the child, because if the child was not born that proof might be wasted. The Amendment, therefore, provides that there shall be no proof at all of any kind before the birth of the child, but where paternity is admitted or the action is not defended, the court shall have the right to make an interim award of aliment or lying-in expenses. That is more appropriate because the court are entitled, on prima facie evidence, to give what they consider are reasonable expenses without any inquiry. It is the same with regard to aliment, but only in cases where paternity is admitted or the action undefended.

12 n.

The LORD ADVOCATE (Mr. Craigie Aitchison)

I just want to say that the Government agree that the Amendment is an improvement on the Bill as it left the Committee, and as the reasons for the Amendment have been so clearly stated by the right hon. and learned Member for Renfrew East (Mr. Mac-Robert) it is quite unnecessary for me to take up the time of the House by repeating them. The Government wholeheartedly support the Amendment.


I do not quite follow how the Amendment accomplishes what the late Lord Advocate has in view. In the Clause as it is in the Bill it is fairly clear that an unmarried woman can get an order before the birth of the child. That seems to me to be an admirable provision, and it would only apply in admitted cases. I can see no reason why a woman should not get money before the time comes for spending it, and I cannot see, without further explanation, how the Amendment meets that case. The Amendment says that an application shall be made "to the sheriff to fix a diet for the trial of an action"—


The hon. and learned Member is reading the wrong Amendment. He is now reading an Amendment which should have been down in the name of the hon. and learned Member for Argyllshire (Mr. Macquisten) which Mr. Speaker has not selected.


The Amendment which has been moved by the late Lord Advocate meets many of the difficulties which some of us expressed in the Committee. Clause 3 was the one Clause in the Bill which was opposed by some hon. Members because they felt that an injustice was likely to be done, but the Amendment removes many of the objections and as one of those who were hostile to the Clause in Committee I am well satisfied with the Amendment.


I do not think that this Amendment makes, much improvement on the unimprovable. It will have just the same effect as the Clause as originally drafted. It will merely provide a blackmailer's chart. Anyone who has the slightest acquaintance with these matters knows that very often the wrong person is selected. This Clause might have been framed by a committee of blackmailing experts and the Amendment will not improve it in any way. Neither the Amendment nor the Clause as originally drafted should be accepted by this House, but as far as I can gather from some of the speeches some hon. Members know very little about this aspect of human life.

Duchess of ATHOLL

The reason for this Clause, broadly, is the great delay which too often takes place in the hearing of cases of this kind. I have had letters from social workers and from lawyers in all parts of Scotland speaking of the great delay which often takes place in the hearing of these cases and giving these awards. Some social workers have gone so far as to say that 50 per cent. of cases in which aliment might be claimed, are never brought forward because it is such a hopeless matter. One case of delay I might mention. It was the case of a child born in February of last year. The mother made application in April, but the case was not to be heard until January. It is obviously necessary to try to take some steps to improve matters of that kind. The grossest injustice has been suffered by many women in Scotland because of these delays.

Objections were raised in Committee regarding the form of the Clause as originally proposed. Therefore my right hon. friend put down this Amendment. The Amendment provides, as the Clause did originally, that no award shall be made if paternity is defended. No final award can be made before the birth of a child, but some progress can be made in preparing the action and getting together the evidence, and all that would be very valuable in preventing delay. Even in the case where paternity is denied, the fact that an action has been raised means that the man's effects can be taken into consideration. In legal phrase there is a nexus. If a man is about to abscond his assets can be arrested, and there is some chance that the woman will be able to get the aliment. But the Amendment ensures that no proof can be taken as to the man's means if he denies paternity—no proof of his income can be taken until after the birth of the child.

That is a point of substance, because one of the most important things in the Bill is the provision in Sub-section (2) of Clause 1, that the aliment to be awarded is to depend on a man's means and position. Therefore, to postpone any proof as to his means until after the birth of the child, is a very substantial Amendment of the Clause, and I think should go far to ensure that injustice is not done to the man. On the other hand the words in the Amendment which will enable an interim award to be made for confinement expenses and for aliment in the event of birth, are of very great importance, because it may make a very great difference to the safety and welfare of the woman in her confinement to know that before she has to meet it an interim award has been given for the expenses. That knowledge might well make a very material difference in the crisis, and a difference in the health and welfare of the child as well.

Major ROSS

It seems to me that the discussion of this Amendment—I say so with great respect to the many eminent Scotsmen and Scotswomen who have spoken—has gone back to the merits of the original Clause. As I see the matter, that is not what we should be discussing. We are or should be discussing which is the preferable form in which the Clause should appear, whether the original form is the more desirable or whether the amended form is preferable. I do not propose to discuss the merits of the Clause as a whole. It contains points of rather serious contention which do not arise on the Amendment. But as between the original drafting of the Bill and the Amendment, it does surprise me that there should be this opposition to the Amendment from the quarters from which it comes, because, looking at the whole problem from the point of view of the man, it seems to me that the Amendment is definitely a move in his favour.

In a Clause of this kind you must have two courses open to you, one in case there is to be no fight on the question of paternity, and the other if there should be. Under the original Clause, the rule was that it should go against the man, that it should be possible in the early stage for the court to make an order condemning him to pay these expenses. But it is far preferable to have the Clause drafted in the form of the Amendment, because there it is the exception that the man is made liable for these expenses and the rule is that he should not be liable. In fact, it says quite definitely: No declarator of paternity shall be pronounced, no proof shall be taken," etc. That is quite different from the language of the original draft of the Bill, and it is much fairer to all concerned. Therefore, it surprises me that there should be opposition to the Amendment, and I for one shall be glad to go into the Lobby in support of it.


I have been trying my best to get at the back of the meaning of these words. The first part of the Amendment is roughly the same as the second part of the original Bill, and the second part of the Amendment is much the same as the first part of the Bill. I have difficulty in deciding between the two. The original Bill says: If the action is undefended or if parentage is admitted, the court may in that action make an order for such lying-in expenses as are appropriate to her position in life. The Amendment says: Where the action is undefended, or where parentage is admitted by the defender, the court may at any time make an interim award of lying-in expenses, as also an interim award of aliment, to commence at the date of the birth of the child. Of course there is a slight difference in the words. The Amendment begins by saying that: No declarator of paternity shall be pronounced, no proof shall be taken, and, subject as hereinafter provided, no operative decree for payment shall be pronounced in such action until after the birth of the child. Those are almost precisely the same as the words in the Bill. When I looked at the Amendments, I found myself drifting into a course of reading of what was said in Standing Committee, and I was much interested to notice that there seemed to be a competition among members of the Committee as to which knew most about the subject. I discovered that they all seemed to have a fair amount of knowledge, but the hon. Member for Dundee (Mr. Marcus) said what I think is correct, and what at any rate represents my feelings, when he explained the position from his point of view. He said: The one paramount and vital advantage to the woman to be able to raise her action before the birth when there is repudiation of liability on the part of the alleged father is that she will have the day for proof fixed at the earliest possible moment. This question of having the proof fixed at the earliest possible moment is of vital importance, but it is very difficult to decide ae to what is the right moment, and that is why I think we ought to have more information about this Amendment. The hon. Member for Dundee in his speech at the Committee also said: It will be fixed as soon as she is tit to give evidence after the birth. At the present time when a woman raises the action after the birth she cannot raise it for a month or two after the child has been born, and my experience has been that proof has not been heard until six or seven months after the birth, and even so long as 12 months after. That shows how essential it is that the time fixed should be as soon as possible, and I believe I have the human side of the House with me in making that statement. The Lord Advocate replied to the hon. Member for Dundee as follows: In the case which my hon. Friend figures he is assuming that the proceedings will be closed prior to the birth. No judge would close the proceedings prior to the birth."—[OFFICIAL REPORT (Standing Committee on Scottish Bills), 12th December, 1929, col. 58.] I am sure that the Lord Advisory Advocate will be able to make his position quite plain, and I am only trying to help him to do so. I bare read this Amendment as carefully as I could and I have read what the Lord Advocate said upstairs, and it seems to me that there is some confusion of thought both in the Bill as it stands, and in the Amendment. For that reason I think the Lord Advocate ought to explain to us the precise difference between the Amendment and the wording which it is proposed to leave out. There is a great similarity between the two, and as a humble English Member I am not at all sure that there is any particular point involved in making the Amendment. I am certain, however, that one thing which is necessary is to try to get these matters settled as soon as is humanly possible and I appeal to the Government to give that matter their proper consideration.


A remark made by the Noble Lady the Member for Perth and Kinross (Duchess of Atholl) has rather disturbed me. I gather from what she said, that an application may be made as much as three months before the lying-in, and that although no operative decree for payment can be made during that period there may be a decree of some other kind imposing an embargo upon the man's assets. The Amendment says that no operative decree for payment shall be pronounced until after the birth of the child, but I should like to know if a man, having strenuously denied paternity, is to be in the position of having a very wicked charge hanging over him for three or four months, and if there is any other sort of decree which can be made against him, holding up his assets or placing some sort of embargo upon his assets.


I think my hon. and learned Friend is under a complete misapprehension. Wherever paternity is denied the whole thing comes to a standstill and you get no further. You are in precisely the same position as if action had not been taken until after the birth of the child, with this exception—that the woman having brought her action into court, it may be three months prior to birth, is in a more favourable position for getting an early hearing of the case, and that, of course, from the woman's point of view is vitally important. I think the House may be quite clear upon that point. On the other hand, where there is a case of undisputed paternity, then the court in that case, and in that case only, may make an interim award of aliment and an award of expenses, which award, however, in no circumstances will become operative until the child is born. That, I understand, to be the position, and I hope that is clear to my hon. and learned Friend.


Some difference of opinion has arisen in regard to the meaning of the Clause as it stands, but I do not see any real difference in the Amendment which is now proposed, and I am certain that the purpose which was aimed at is still being accomplished by the Amendment.


I did not quite follow the argument of the Lord Advocate. He was asked whether the result of this Amendment would not be that a charge might be brought by a woman against a certain man three months before the birth of the child. The question put by my hon. and learned Friend the Member of Altrincham (Mr. Atkinson) was, would that charge remain hanging over that unfortunate man, who might be perfectly innocent, for three months or more. I imagine that my hon. and learned Friend really wanted to know if it was the case that when a charge of that kind had been made and denied, it was still possible for the court to place some charge upon the man's assets. Would such a man be in the position, for instance, of having a charge upon his furniture without any right to go to the court to have the question of paternity settled right away?


I can only speak again with the leave of the House, but the matter is perfectly simple. If hon. Members will take the trouble to read the Clause, with the Amendment in it, they will find that it reads as follows: Any unmarried woman who is pregnant may before the birth of the child raise an action for lying-in expenses and for aliment against the putative father, but no declarator of paternity shall be pronounced, no proof shall be taken, and, subject as hereinafter provided, no operative decree for payment shall be pronounced in such action until after the birth of the child. That means that where paternity is disputed, all that happens is that the writ is taken out and then things come to an absolute standstill. Then the Clause, as amended, would proceed, but where the action is undefended, or where parentage is admitted by the defender, the court may at any time make an interim award of lying-in expenses, as also an interim award of aliment, to commence at the date of the birth of the child. I ask the House to observe the last words. As regards the second part, no difficulty arises, and I address myself briefly to the two specific questions which have been put to me. It is perfectly true that if a woman is allowed to bring into court an action against a man three months prior to the birth of the child, in one sense that may involve a charge lying over the man's head. Then, in a matter of this kind, you have to balance the different considerations, and the Committee decided that on balance of considerations it was better and more just to the woman—and I think the woman's interests in this matter are of paramount importance—to allow the woman to take the action. As regards the other specific matter put to me, whether the funds of the alleged father could be attached, there is nothing in the Bill which for a moment would allow that to be done. You could not attach wages or furniture or any asset whatever belonging to the man until the paternity had subsequently been declared after the birth of the child.


Would it not be possible to put in a claim and hold the man's assets or wages tied up? It is possible that the man may be ill, or a poor, ignorant, farm servant, with no means of getting access to any defence, and he may find himself put in prison.

Amendment agreed to.