HC Deb 25 July 1958 vol 592 cc864-8
Mr. W. Wells

I beg to move, in page 12, line 38, at the end to insert: Where, on an application made in England to a county court, the court makes or refuses to make an adoption order, an appeal shall lie to the Court of Appeal on any question of law or fact. The hon. Lady will recall that we discussed in Committee the precise position relating to appeals when we discussed the Amendment the result of which is that where the adoption proceedings are taken in a magistrates' court appeal will lie to the High Court on either fact or law instead of, as otherwise would have been the position, the appeal on fact or indeed on law going to quarter sessions, unless a case was stated for the divisional court.

The position under the Clause as it stands is somewhat anomalous. It is possible in the High Court to appeal under the Judicature Act to the Court of Appeal on any question of law or fact. Under the Measure, as amended, it will now be possible to appeal from the magistrates' court to the High Court on law or fact. But when proceedings are taken in the county court the matter is governed, as I understand, by the County Courts Act, 1934, which provides for an appeal on law but not for an appeal on fact. The 1955 Act makes no difference in this regard.

As I outlined the matter in Committee, the reason for the difference made in the rules relating to appeals in the High Court and in the county court is normally based on the difference in value of the subject matter which is at stake. If the county court is regarded more or less but not wholly as a poor man's court, it is undesirable that there should be a multiplicity of appeals on matters of limited financial value.

When we deal with adoption orders, however, we clearly move into an entirely different territory. There is no difference at all between the value of a child in respect of whom adoption proceedings are taken in the High Court and the value of a child in respect of whom proceedings are taken in the county court. In our view, the rules relating to appeals should be precisely the same, irrespective of the tribunal before whom the proceedings are taken.

That is the purpose of the Amendment. I believe that the case for amendment on these lines is self-evident. If there is anything wrong, as there may very well be, with the drafting of the Amendment, I hope that even at this late stage the hon. Lady will take steps to have it put right when the Bill goes to the other place for our Amendments to be considered. I hope, however, that she will be able to meet us in principle on this point.

Mr. Younger

I beg to second the Amendment.

Miss Hornsby-Smith

I find myself at a disadvantage in answering a thoroughly legalistic question from the hon. and learned Member for Walsall, North (Mr. W. Wells) with his long experience in that field. As I understand it, the Amendment seeks to widen the present right of appeal to include an appeal on merit. It is felt that in practice this is unnecessary, for the following reasons. In an adoption case, the judge's decision always amounts to the exercise of judicial discretion and the Court of Appeal is always ready to interfere if it is satisfied that a judge has wrongly exercised his discretion. The Court of Appeal is in a position to interfere where circumstances warrant it because in practice the appeal, though it is confined to points of law, is wider than an appeal by case stated.

It may be, however, that the hon. and learned Member and his colleagues have in mind an appeal with a full rehearing of the case. I quite agree that this was what the Hurst Committee had in mind in its recommendation. Such an appeal could not, however, be heard by the Court of Appeal, which does not in practice hear oral evidence. A complete rehearing in an appeal from the county court could only be achieved by another tier in the appellate structure.

My noble Friend the Lord Chancellor does not consider this justifiable, since the existing right of appeal on a point of law has shown itself to be adequate. For example, the hon. and learned Member will remember that there was a recent case in which the refusal by the county court to dispense with the consent of the father of an illegitimate child was overruled by the Court of Appeal. I assure the hon. and learned Member that my right hon. Friend and his noble Friend have gone into this question deeply. I hope, therefore, that the hon. and learned Member will feel able not to press his Amendment.

Mr. MacColl

I am not sure that understand the position. The hon. Lady is trying to convince my hon. and learned Friend the Member for Walsall, North (Mr. W. Wells) that there is no difference between law and fact. That is a matter in which I will not intervene. As I understand the position, there is an appeal from the magistrates' court on law and fact and, therefore, presumably there can be a rehearing of the case. This difference seems to me to be quite wrong.

A juvenile court has, on the whole, probably more experience than any other court in matters concerning children, their welfare, the problems of family life, and so on. That is the day to day work of juvenile courts. In their case, however, there is an appeal and an opportunity for complete rehearing. Magistrates are, on the whole, laymen and, therefore, their interpretation of the law might often go wildly astray. It is therefore reasonable that there should be an appeal against law also in the case of magistrates, and I do not quarrel about that.

A county court judge is a professional lawyer. An appeal is provided against his decision on matters in which he is professionally qualified at a high level. An appeal is not provided against him on matters of fact dealing with children, family life, and so on—in which his experience is likely to be much less than that of a juvenile court. That seems to me to be completely cockeyed.

1.15 p.m.

I consider that there is a case for appeal in all these matters, very much for the reasons mentioned by the hon. Member for Crosby (Mr. Page), who emphasised how grave these questions are. It is most important that there should be an opportunity for a full review by a higher court. I see no reason whatever for exempting appeals from a county court judge on questions of fact. It is on the facts that he is less likely to be qualified to make a sure judgment, although he is highly qualified to deal with law. The matter is, therefore, treated the wrong way round. I can understand the suggestion that as he is a highly experienced lawyer, the legal questions should not have to be argued again, but he might easily slip up on his interpretation of the facts in these difficult problems.

Mr. W. Wells

I sympathise with the Joint Under-Secretary in dealing with this difficult and technical subject. If the hon. Lady has been trying to persuade me that there is no difference between law and fact, I would merely remind her of a dictum of the late Mr. Justice Branson that when the facts are known the law is usually clear. That is an argument on the hon. Lady's side.

I accept that in these cases, whether the appeal be from the High Court or from the county court, the main question at issue will be whether the judge has exercised his discretion on the right principles. That, I suppose, must be mainly a question of law. I should have considered it more satisfactory, for some of the reasons stated by my hon. Friend the Member for Widnes (Mr. MacColl), to have no differentiation between the High Court and the county court. I accept, however, that the distinction is of less practical importance than it might appear. Although I regret that the hon. Lady cannot accept it, nevertheless I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.