HC Deb 02 May 1958 vol 587 cc761-84

(1)The powers of the court under subsection (8) of section five of this Act, other than the power to enforce, vary or discharge an order for payment for maintenance or education, may if the court thinks fit, be transferred to the juvenile court acting for the place where the infant was ordinarily resident at the time of committal to the care of the local authority.

(2)The powers of the court under subsection (6) of section six of this Act may, if the court thinks fit, be transferred to the juvenile court acting for the place where the infant resides.—[Mr. MacColl.]

Brought up, and read the First time.

1.21 p.m.

Mr. James MacColl (Widnes)

I beg to move, That the Clause be read a Second time.

I am sorry that it is necessary to detain the House on what is perhaps a rather difficult point of administration on the Report stage of this excellent Bill. I raised the question that is involved in the proposed new Clause on Second Reading. and my hon. Friend the Member for Oldbury and Halesowen (Mr. Moyle) expressed the opinion, with which at that time I agreed, that it would be possible to look at it in Committee. Unfortunately, I was not a member of the Standing Committee, so there was no opportunity of putting forward my views where they could be examined with rather more patience than it is easy to persuade the House to give to them. However, I think that the points involved are important, and I therefore raise them now.

I should like to explain briefly more or less what they amount to. The Bill gives to the Divorce Count two very important powers in considering the question of the custody of the children of parties to divorce proceedings. One is the power to commit a child to the care of the appropriate local authority, and the other is power to make an order for the child to be supervised by the welfare officer of the court, who may or may not be the probation officer.

My proposed new Clause has two subsections. The first provides that the power of the court to enforce, vary or discharge an order for payment for maintenance or education, may if the court thinks fit, be transferred to the juvenile count acting for the place where the infant was ordinarily resident at the time of committal to the care of the local authority". May I explain two points about that? I put the rather obscure expression, enforce, vary or discharge an order", in the Clause because of representations made to me by officers of a local authority that it would be undesirable to have a juvenile court enforcing orders for contributions of maintenance, whereas most orders of this kind, or similar orders under the Children Act and the Children and Young Persons Act, are enforced by magistrates' adult courts. Therefore, we should be in some confusion if, in cases of this kind, it were done by juvenile courts. I thought that the best thing was to take them out of it altogether and leave their position unaffected.

The other point is that the appropriate juvenile court is not, as I thought it ought to be and, indeed, on Second Reading suggested it should be, the juvenile court in the area in which the child resides, but the juvenile court operating for the area where the child resided when the order was made. The reason is that where a child is committed to the care of a local authority it is quite possible that it may be moved away from the original place where the order was made and may, at the time when an application is made to vary the order, be living in a place far removed from the original place where the child lived, or where the parents live, and where the appropriate local authority is placed. On the whole, it seemed best to tie the jurisdiction to the place where the order was made, rather than to the place of residence at the time of the application for variation of the order.

On the other hand, in the second subsection of my proposed Clause, dealing with the supervision proceedings, the powers of the court may, if the court thinks fit, be transferred to the juvenile court acting for the place where the infant resides. It might well be that while supervision was in operation the family had moved to some other part of the country, and, therefore, it is desirable that the place where the family is should be the place where these questions are fought out.

This is entirely permissive. I had great difficulty in appreciating some of the objections which have been felt to the proposals I made, but they are to some extent based on the idea that some children are altogether unsuited for the jurisdiction of a juvenile court, and I think that that is perfectly true. I think that some judges would feel that magistrates were inefficient—very like the people we were discussing a few moments ago—and not the sort of people to carry out this kind of work. If a Divorce Court judge did feel that way, he would not make the order transferring the responsibility. He would keep the powers within the High Court.

My proposal is simply to give the High Court judge the discretion, in cases which he thinks would be more appropriately dealt with by a juvenile court, to make an order transferring his powers to the local juvenile court, more accessible, easy to find, cheap, informal and experienced in the kind of problems that will arise. I am sure that there are many problems with which a High Court judge will be the first to admit that he has neither the experience nor the interest to concern himself, because he is not familiar with the complicated local details or the extent of the social services in the area.

Obviously—and my hon. Friend who is the promoter of the Bill is very much seized of the point—this is not a problem confined to any one class of the community. The welfare of the children of divorced people arises in every section of the community, and I know that my hon. Friend feels that strongly, and is nervous about anything that may give the impression to people who are not accustomed to going in and out of magistrates' courts that they were to be, to some extent, down-graded. There are obviously cases in which it would be wrong for juvenile courts to have the powers.

I mention as an illustration a report of a case that appeared in The Times for Tuesday under the somewhat startling and arresting heading: Boy Deprived of Chance of being Wykehamist". The report said, and I am quoting from the arguments presented to the Court of Appeal: But by his order"— and this is a reference to the judge— he had in effect and, in fact, deprived the boy of all opportunity of ever going to Winchester, for if he obtained a scholarship to Oundle the Judge had directed that he should take it and not sit for any further examination; and that if he failed that and obtained a scholarship to Repton that was to be taken up. So in the end he would either go to Repton or to Radley, with no chance of going to Winchester. And if he obtained the scholarship to Repton, he would not even be able to go to Radley, his father's old school. Clearly, that is a case for the Court of Appeal. Nobody would suggest that magistrates can have any qualifications for dealing with a grave decision of that kind. It is quite right that matters of that kind should be dealt with by a High Court judge, and that if the parties are dissatisfied, the machinery of the Court of Appeal should be directed to sorting it out.

1.30 p.m.

I do not really think that my hon. Friend, with is wide knowledge of life, will really imagine that that is characteristic of the type of case with which his Bill is to deal. The average parties who come before the Divorce Court, of ordinary education, making use of the ordinary social services available to them, want a court before which they can go without feeling shy or embarrassed, or that they are entering upon something rather outside their normal range of understanding. Such people want to be able to go as individuals, not with legal representatives. They want to feel, when there, that they are talking to ordinary people with a knowledge of local conditions in their area.

My hon. Friend gave a clue as to what worried him, I think, in a remark he made on Second Reading. Referring to my suggestion, he said: … these children would be regarded psychologically as juvenile delinquents."—[OFFICIAL REPORT. 7th February, 1958; Vol. 581, c. 1511.] My hon. Friend feels that many people would be frightened off the Bill because the idea of the juvenile court exercising these responsibilities would "tar" the child as a juvenile delinquent. I do not for one moment suggest that my hon. Friend himself thinks that; he has had great experience as a magistrate in a juvenile court, and I am quite certain that he does not think that.

My hon. Friend says that that is the view of the ordinary outsider. It has never been the attitude which Parliament has adopted towards the work of the juvenile courts. Whenever matters concerned with children have arisen, the whole tendency of Parliament for many years has been to give responsibility to the juvenile court as opposed to the adult court. As an example, there are the provisions dealing with truancy in the 1944 Education Act, the power being given to the adult court to deal with parents permitting truancy, the child can be referred to the juvenile court to be dealt with as a problem in welfare. The juvenile court has concurrent jurisdiction with the High Court and with the county court in adoption matters.

Surely there is nothing more intimate than adoption, nothing where it is more desirable to avoid any hint or feeling of being a delinquent. Yet, in adoption proceedings, with, as it were, the more important object of creating a family rather than dissolving one, the juvenile courts have for years carried concurrent jurisdiction with other courts, carrying it effectively and well, with very little criticism. It is a matter for the parties to decide. If they would rather go to the High Court judge, they can go to him. If they feel that they would rather have the matter dealt with by the magistrates, they can go to the magistrates, as many do. In fact, the work is done in an atmosphere not of delinquency but in precisely the atmosphere which, though I have never been there, I imagine is found in the chambers of a judge, though with a little more flexibility and ease of access.

Even more relevant is that my hon. Friend's Bill applies to the children of divorced parents the provision of the Children Act, 1948, that the court can make an order committing a child to the care of the local children's authority, an order which is binding and cuts across any rights the parents have in the custody of the child. In other words, by Clause 5, it takes away the rights of the parent and places them in the hands of the childrens authority.

There is an equivalent of that in the Children Act because, although most children are dealt with voluntarily, being taken into care by agreement, if a child is in care it is possible for the children's authority, by a very old power going right back to the Poor Law, to pass a resolution assuming the rights and powers of the parents and depriving the parents of all right to custody of the child. In such cases, if there is a dispute of any sort, the matter goes to the juvenile court. Thus, in another case where Parliament was faced with the question of which was the best body to deal with the problems of custody and care, it has chosen the juvenile court as the appropriate court to deal with the matter.

It is a little late in the day, therefore, to say that the High Court should not be given discretion. I do not argue that for a moment that every case should go automatically to the juvenile court. I merely ask that the High Court judge should be given the discretion to say that this is the sort of case, parallel with cases of local authority resolutions under the Children Act, parallel with some of the cases of adoption, parallel with some of the cases of truancy, where the best body to deal with it is the juvenile court. The juvenile court already has jurisdiction in non-delinquency matters such as care and protection, looking after children who have been neglected or to whom the parents have been cruel. All that kind of work is done there.

I am not in a position to say, or to criticise, how the High Court would work in dealing with these matters. I have not sufficient experience. I have had long experience in the juvenile courts but, unfortunately, when I competed with the Solicitor-General on the North Eastern Circuit, I was never able to persuade any solicitor to give me any work which might take me into the High Court. Therefore, I know extremely little about it. I was, however, very interested in the view expressed by the hon. Member for Billericay (Mr. Body) during the Second Reading debate: … all of us who have to appear in magistrates' courts know that in the variation of these orders and the discharge of them, and in applications for arrears of payments, those courts can deal with the matters much more speedily and easily, and more cheaply for the parties concerned, than applications can be dealt with in the High Court. I do not know whether the hon. Member will tell me I have misinterpreted what he said, but I understood him to say that, in these cases, it would be a slow business getting to the High Court. It might involve the employment of counsel by paying his fees—an admirable thing to do for counsel—or applying for Poor Person's Assistance which, as we all know, would be a long and cumbersome business.

Mr. Richard Body (Billericay)

I am grateful to the hon. Gentleman for allowing me just to say that I was there going back to the subject of maintenance orders. My point was that it was far easier to obtain a maintenance order in a magistrates' court than in the High Court. In advancing that point, I was not concerned with applications for custody. It is easy, and takes very little time, to make an application for the custody of a child in the High Court before a judge in chambers, and varying the order also can be done quite easily.

Mr. MacColl

I am sorry if I have misinterpreted the hon. Gentleman. Perhaps I ought to quote the sentence or two before the part which I actually read: The hon. Gentleman the Member for Widnes referred also to the matter of the variation of the order". That is this particular order we are dealing with. If it is his suggestion that variations should be made by the magistrates' court, then I would strongly agree because"—[OFFICIAL REPORT, 7th February, 1958; Vol. 581, c. 1543–4.] and then he goes on to say what I have quoted. If the hon. Gentleman says that the High Court is easy of access, I do not quarrel with that.

What I do not know is how long it takes to set about going to the High Court. I am not sure who will go in these cases or who will actually make the decision. My hon. Friend was extremely vague about it. He kept talking about the court doing this, that and the other. Let us take as an example the case of a child in the care of the wife. There is some dispute as to whether the father should have access, take the child out, or something like that. It has to be settled, and the aggrieved parent wants to blow off steam about it. To whom do they go? Do they go to the judge of the assize: Do they go to the registrar, and if so, who is he? Do they come to London to the Divorce Division and see somebody here? I am not at all clear who is the actual human being who is to make the decision, as opposed to the institution which is to be charged with the responsibility. That is an important point. A lot can be said for continuity. If the judge dealt with the case in the first instance, it is important that he should make all the subsequent decisions, because he knows the position. I agree with that.

Mr. Arthur Moyle (Oldbury and Halesowen)

Will my hon. Friend now tell the House what is the procedure to be followed in the first instance for a matter to be considered by the juvenile court? Is it the probation officer, or a magistrate? If so, which one, or is it the magistrates in court?

Mr. MacColl

The answer to that is perfectly clear. I do not know what will be the rules of court about the procedure, whether it will be done by summons or not, but I can give a parallel illustration. Under the Children Act the local authority goes to the court and informs the parent that it is going to the court. At the juvenile court they see the three magistrates who are sitting. If it is a question of adoption, the magistrates are consulted in a private room, but, in other cases, according to the nature of the proceedings, the matter is discussed in open court.

If the magistrates are unhappy about the case and they think that the children's officer is a little prejudiced, or that the parents are difficult and are taking a hostile attitude, they will very often adjourn the case and ask the probation officer, as an impartial person, to make an inquiry of the parents to try to get the whole story. Of course, the child can be and usually is seen by the magistrates, because they are specially skilled in the art of talking to children. God forbid that I should say that it is an easy thing to do or that I am good at it, but it so happens that the Home Secretary has chosen me because he thinks that I can talk to children, perhaps more successfully than I can talk to my hon. Friend the Member for Oldbury and Halesowen.

A juvenile court is chosen because magistrates are the sort of people who are accustomed to talking to children. It is important to get out of the child who is shy, nervous and diffident his side of the story, and to discover whether Miss So-and-So, the children's officer, is a bit of a so-and-so and has to be regarded with caution when she says bad things about the children, or is a reliable and competent officer whose judgment can be accepted. That knowledge is built up over years of experience of dealing with social services in the area. For instance, one gets to know the headmasters and the value that can be attached to their reports, and so on.

My hon. Friend the Member for Oldbury and Halesowen very adroitly tried to put me off when he asked me to deal with the point about the juvenile court. That is an important point. There may be parents in Widnes who do not like the way the Lancashire County Council is handling their children and want to get rid of the attentions of the supervising officer or to discuss, for instance, whether it is good for the child to live with the grandmother in Eastbourne. Who is the human being that the parents will see? That is an important point.

1.45 p.m.

Major W. Hicks Beach (Cheltenham)

The person they see is the judge concerned. Those who practise in the Chancery Division know perfectly well that all children are interviewed personally by the judge if he considers it proper.

Mr. MacColl

Does the hon. Gentleman mean the Vice-Chancellor's Court, in Liverpool, the Divorce Division in Liverpool, or the Chancery Division in London?

The Solicitor-General (Sir Harry Hylton-Foster)

The judge of the Probate, Divorce and Admiralty Division of the High Court in chambers deals with the matter. He has local situations in 42 assize towns, and the nearest of these would deal with the matter.

Mr. MacColl

I do not apologise for being confused on this matter, because I notice in the Law Reports that a dispute is going on as to which has the superior jurisdiction, the Chancery judge or the Divorce judge.

Major Hicks Beach

It entirely depends on whether the child is a ward of court or not. If he is a ward of court the matter is dealt with by the Chancery judge. If he is not, it is dealt within the Divorce Division.

Mr. MacColl

The hon. and gallant Gentleman has read the same Law Report as I have.

Major Hicks Beach

No, I have not. I know something about it.

Mr. MacColl

If the hon. and gallant Gentleman has not read the Law Report, then he is ill-advised to intervene. The matter was discussed at considerable length only this week. Therefore, the hon. and gallant Gentleman ought to brush up his law.

As I understand the Solicitor-General, one Divorce Court judge is responsible for this work. I understand that he has 42 local stations. He cannot be in 42 places at once. Therefore, he has either to go round on circuit to the 42 places or the whole bag of tricks has to come to London.

I do not want to weary the House with putting up a cockshy and knocking it down if there is not a cockshy to be knocked down. I am trying to deal with the matter in concrete terms. Lay Members of the House as well as people outside are entitled to know the answers to these questions. The matter can be dealt with comparatively easily in London, because it is only a bus journey to the Law Courts. I am not talking about whether it is a good thing or not to go to Winchester or Repton.

I quite agree that this problem could be settled by employing solicitors and counsel. But suppose a parent in Widnes wants to know whether it is a good thing for the children to spend the summer holidays with their grandmother in Eastbourne, for which one has to get permission from the supervising officer. He may think that it is a bad idea and the parent concerned may want to have the matter settled. After all, it affects the parents' rights in bringing up their children and they want to get a quick decision before the summer holidays are over. It is no use waiting for the judge to come round to his 42 stations.

Major Hicks Beach

There are 42 judges.

Mr. MacColl

The hon. and gallant Gentleman says that there are 42 judges, but the Solicitor-General says that there is only one. It would be nice to know which is right. What I do know is that in every area of the country there is a petty sessional division, and attached to it is a juvenile court which is constantly dealing with this problem in other contexts. They are, therefore, used to dealing with people and have local knowledge and are accessible, meeting sometimes once a week, sometimes less often, according to the burden of work. However, the juvenile court can be summoned to sit at any time. This power ought to be given to the divorce court judge.

I am sorry to have detained the House, but this matter affects the liberty of the subject. It is not a piece of empire building on behalf of magistrates. My hon. Friends talk in vague and general terms about easy access to judges in chambers. The rights of human liberty and parents to get justice quickly, speedily, cheaply and in an atmosphere that they understand and in which they are free to move should be available to them in the local courts. That is the point at issue. The discretion could be left to the High Court judge to make up his mind whether, in a particular case, the balance of advantage lies in keeping the jurisdiction for himself or in passing it to the local court, which can keep a more intimate watch on what is happening.

Mr. Barnett Janner (Leicester, North-West)

I beg to second the Motion.

I do not propose to embark upon the technical matters raised by my hon. Friend the Member for Widnes (Mr. MacColl), or to discuss the various towns where judges can be seen by applicants. When the most authoritative person at present in the House—the Solicitor-General—gives his reply, my hon. Friend the Member for Oldbury and Halesowen (Mr. Moyle) will probably realise that the new Clause is desirable. Anybody who would seek to oppose it should not make heavy weather of it.

There is no reason whatever why a High Court judge should not have the right, if he thinks it proper, to refer a matter of this description to a juvenile court. What is the purpose of the Bill and what is the problem that it is designed to meet today? The trouble today is that children are often being thrown like parcels from one person to another—from a parent to a grandparent, for example—without any consideration for the welfare of the children. The purpose of my hon. Friend the Member for Oldbury and Halesowen is to remedy that situation and this Clause is an attempt to help him in doing so.

The juvenile courts consist of men and women who, in the belief of the authorities, are capable of dealing with juveniles. I should like to pay a tribute to my hon. Friend the Member for Widnes. My wife, who sits from time to time in the court over which he presides, tells me that the manner in which he conducts the chairmanship of the juvenile court is exemplary. Men like himself are in a much better position than most people to decide what should be done to ensure that the children are happy and properly looked after. Those who oppose what we suggest often overlook the fact that there is an appeal against these decisions.

These men and women are usually specifically gifted or experienced for the purpose of dealing with the needs of children who, unhappily, are placed in circumstances in which their parents cannot decide, or should not be allowed to decide, for themselves how the children should be treated and where they should go from time to time; in other words, to decide who is a fit person to look after the child. I cannot see why that position should not be accepted by us, who gave to the Home Office its powers for the appointment of juvenile magistrates. These men and women investigate and know the background of the individuals concerned in cases which come before them.

My right hon. Friend the Member for South Shields (Mr. Ede) at one time had the power, and used his discretion wisely, of appointment of magistrates to sit in the juvenile courts. He inquired whether they had any knowledge of youth movements, what their characters were like and whether they were the kind of people who could decide these issues and he came to the conclusion that certain people should be appointed for these duties, which involve inquiry into children's backgrounds, finding out why they do certain things which are not desirable, and how they should be helped not to repeat them in future. Within that sphere comes the important matter of deciding who should look after the children. These decisions are made every day. If they are wrong there is an appeal against them.

Major Hicks Beach

There is the right of appeal from the decision of a Chancery judge.

Mr. Janner

In the Chancery Division, one comes before the judge. Even in regard to chambers, outside, there are lawyers crushing about the Law Courts; not that there is anything wrong in that——

Mr. Body

Is it not better done among lawyers in the Chancery Division than among Teddy boys in the juvenile courts?

Mr. Janner

Teddy boys? I would like to understand what the hon. Member is driving at. I do not see how Teddy boys come into the matter. I am talking about the welfare of the children and who should look after them. It is a simple proposition.

Even if one goes to the judge in chambers, one goes to the High Court. The atmosphere is that of a court, whatever anyone may say. I agree that it is not the same as in the open court and that conditions are easier. The lawyers are entirely at ease, although they probably did not feel at ease in their first experience of this kind. If the hon. and gallant Member for Cheltenham (Major Hicks Beach) speaks in this debate, perhaps he will tell us what he felt like on that occasion. We are discussing lay people and it is easy to imagine their feelings when they come into that type of atmosphere. It does not prevail in the juvenile court. The learned judge might well say, "Here is a case where the people will feel much more at home in the juvenile court than in my chambers" and there is nothing unnatural in that. The point is that people there may be more able to open their hearts and their minds.

2.0 p.m.

We are concerned with getting at what is really in the minds or hearts of those who come before the courts. The experienced people in the juvenile courts manage to do that. If the hon. and gallant Member for Cheltenham had any experience of the juvenile courts he would know that they are very much less formal, as Parliament intended. In them the youngsters and parents talk openly, and there is no heavy machinery which might create the idea that counsel and solicitors should be present.

I know that that sort of representation is not essential in the High Court, but if people go before a judge in chambers they feel that they want to be properly represented, believing—rightly or wrongly—that their representation will make a difference to the ultimate result of the case; whereas the people themselves come to the juvenile court and speak openly. There is little strangeness of atmosphere about the place.

In those circumstances, I appeal to my hon. Friends and to hon. Members opposite to give the judge this right. It does not mean that he has got to do what has been suggested. A discretion should certainly lie with the judge. Why should he be stopped from exercising this? Do we think that a judge is incapable of making such a decision? A judge may, in a sense, be living in an ivory tower, for he does not mix with the people. I say this in no critical sense, but a judge cannot mix freely among the ordinary people. He is a lonely person in his own way, because he is partially deprived of ordinary social intercourse. On the other hand, juvenile court magistrates live very freely among the people, do social work and know what is passing through people's minds from day to day. I have previously stated that Members of Parliament who are introducing legislation ought to be able to mix with their fellow men and learn exactly what is going on. Indeed, the argument of hon. Members opposite is that politics should not be entirely a profession for this reason.

In the type of case mentioned by my hon. Friend the Member for Widnes, a judge is capable of making a decision very much more easily and better than a juvenile court can, but I am certain that in many cases the judge would say that he was grateful to this House for having given him the discretion that we suggest—this is what I want my hon. Friend the Member for Oldbury and Halesowen to realise—and the opportunity to say that the matter before him should be decided by other persons who have a more intimate knowledge of the circumstances.

This is not a party matter. Obviously, different points of view can be held. Still, I do not think that a point of view ought to be held with such stubbornness that even at this late hour our minds cannot be changed by argument. I appeal to my hon. Friend to change his mind and give a judge the right to say, "I am, perhaps, the wrong man to decide this matter. I will not even hand the case over to another judge who might have more experience of this sort of thing than I have. I think that it should be handed over to the ordinary men and women in the street, represented by the juvenile court magistrates."

What can be wrong with that? Surely it is a commonsense attitude to adopt. I hope that my hon. Friend, in furtherance of the great objects that he has in mind—his Bill is a very useful one—will consider my hon. Friend's proposal as helpful and not set himself against it, saying, "I had previously made up my mind. I knew what I was doing. I am not now prepared to be convinced otherwise." After all, this is a debating Chamber, and the intention is that we should endeavour to convince each other of the rightness of our views. I know that we do not very often do that, but occasionally we do, and this might be one of such exceptions. I hope that my hon. Friend will come to the conclusion that, by this debate, we have convinced him that our proposal is correct.

Major Hicks Beach

What is of paramount importance in all matters relating to infants is what is in the best interests of the infant concerned. I hope that in what I have to say I may be helpful to the House. I have an interest to disclose, being a solicitor who has a very considerable practice in the Divorce Division and the Chancery Division. Since I qualified in 1932, I have been involved in a very considerable number of these unhappy cases relating to infants with divorced parents. I shall not put forward my views asserting that I am right, but I think I can help the House by giving some of my practical experience.

First, I should like to put the House rather more in the picture about what happens in respect of infants in the Divorce Division and the Chancery Division when children are wards of court. All that has been said about children being brought into the law courts and solicitors and so on running about is incorrect. In cases of applications relating to infants—I am doing about two or three a week—the infant is practically never present when the case is being decided. If by chance the judge, of either the Divorce Division or the Chancery Division, says that he wishes to see the infant and hear what he has to say, the judge invariably sees him not in court but in his private room.

Mr. Janner

What the hon. and gallant Gentleman has said, in itself, shows that it is better for the matter to go to the juvenile court. There the magistrates invariably see the child and discuss the matter with the child and the child speaks openly to the magistrates.

Major Hicks Beach

I profoundly disagree with the hon. Member. I think it is up to the judge—the system works extremely well at present—to hear the evidence and, if he then wants to see the child, he does so, but the infant is never in the atmosphere of court, which would inevitably happen if the matter were referred to the juvenile court.

The hon. Member for Leicester, North-West (Mr. Janner) suggested that I knew nothing about juvenile courts. I do not practise in the juvenile courts, but I have attended them on numerous occasions. I do not think the atmosphere of the juvenile court is at all proper for such a child as we are discussing. When my hon. Friend the Member for Billericay (Mr. Body) mentioned Teddy boys, he was referring to the juveniles before the court. An infant who attends a juvenile court finds himself with a lot of youngsters who, it is alleged, have committed offences. On the whole, I feel that these infants are better dealt with separately by the judge in chambers or his private room, as has been the practice hitherto. At the moment, the method works extremely well.

Mr. MacColl

After my hon. Friend the Member for Leicester, North-West (Mr. Janner) made a rather nice remark about my work in the juveniles courts, the hon. Member for Billericay (Mr. Body) mentioned Teddy boys in juvenile courts. I thought he was referring to me.

If what the hon. and gallant Member for Cheltenham (Major Hicks Beach) has said is true, it would apply equally to adoption cases. In such cases there is a choice to go to the High Court, the county court or the magistrates' court. Many people go to the magistrates' court. The adoption cases are dealt with, quite separately, before the other cases, and these people do not come in contact with those concerned in the ordinary cases. That is a perfectly normal procedure, and if it can work in the case of adoptions, it can obviously work in the case of the children of divorced parents.

Major Hicks Beach

The hon. Member is supporting my case. He talks about adoption, but we are dealing with very unhappy situations—I stress this—arising from the divorce of parents, and it is my view, based on practical experience, that it is very much better for the affairs of children of divorced parents to be dealt with by judges who are dealing with these situations every day.

There are one or two other suggestions I want to refute. One was that any infant case would have to wait until the judge could deal with it in London or elsewhere. What happens in practice is that the judge feels that a visit should be paid to the infant and appoints the Solicitor to the Supreme Court to act as guardian to the child. This works well. The officials of the Department, at the instance of the Divorce Court or Chancery Court judge, send skilled visitors to see the child. It would be a fundamental error if these unhappy cases were referred to the juvenile court.

Mr. Janner

May I ask the hon. and gallant Gentleman two questions? First, does he believe that the judges before whom these cases come are capable individuals, as I do, who can decide for themselves what is best for the child? Secondly, if so, why does he not want the judge to have discretion to say that in his opinion the juvenile court would be better?

Major Hicks Beach

Of course, I accept that they are capable, and have been capable for many years, of dealing with these cases. The history of the Chancery Division shows that. As regards the second question, about discretion, I think the question of infants should remain where it is, for it has operated well over a number of years. It would be wrong to put any High Court judge in a position where he was allowed to refer these matters to a juvenile court. In my view, it is a tribunal quite unfitted to deal with these cases because automatically, in a juvenile court, there are other juveniles present who are alleged to have committed offences. That is not the proper atmosphere for a child who is innocent of any offence and is suffering only because his parents have been divorced and his future is being decided. I shall ask the promoter of the Bill, therefore, to reject this proposed Clause.

Mr. Moyle

I admire the industry of my hon. Friend the Member for Widnes (Mr. MacColl) and only wish it had been devoted to a worthier cause. Frankly, I am more convinced now after his speech today that I am right than I was even during the Second Reading debate when I listened to him, although I know his proposition is nothing more than an enabling Clause to permit the judge to do something he sees fit to do.

The arguments of my hon. Friend are all right. What is wrong is the premise of his speech. I never thought I would hear two lawyers come here and say, "It is good in principle for a High Court to surrender its powers to a lower court and give that court the right to vary the orders it has made." I know of no precedent for that in English law, and I am astonished to think it should have been sponsored with such enthusiasm by my two hon. Friends, both of whom have been nurtured in the legal nursery.

2.15 p.m.

On the question of experience, we have heard a great deal from my hon. Friend the Member for Widnes (Mr. MacColl), whose work in the field of child welfare is so well known that it needs no emphasis. His work as chairman of his own bench is well known also. There is no need to enhance the status of the juvenile court on a level which cannot be justified by facts. I speak as a magistrate—a career by no means as illustrious as that of my hon. Friend—but I know something about juvenile courts. We always dealt with adoption cases in camera, never in the court itself. I have yet to know from my experience that juvenile courts have had experience of matrimonial legislation. In other words, if we assign this duty to the lower court, the magistrates' court, it will be as green as grass because it has not had such experience.

What this Clause proposes to do is to enable the judge to say to the juvenile court, "If you feel there is a case to vary any order I have made, you are at liberty to do so." That is really the issue. When we examine it, and consider the range of children covered by the Royal Commission, we find that it affects only the tail end of the problem, and that only a few people will be affected even if this proposed Clause is adopted.

Mr. MacColl

My hon. Friend is using the term "court" ambiguously. He is using it in the physical sense of the building, and also in the institutional sense of the legal body. The court which hears an adoption application in a private room is the juvenile court, just as the judge in chambers is the same as the judge in the Divorce Court. It is only a question of convenience. Obviously, in the same way these cases would be heard outside the court in a physical sense. His other point was about experience of matrimonial work——

Mr. Moyle


Mr. MacColl

Although many juvenile court magistrates have experience in matrimonial courts—I have not, but many have—juvenile courts have a great deal to do with matrimonial disputes, so they are used to dealing with and sorting out these problems.

Mr. Moyle

I was looking for an equation between the arguments of the hon. and gallant Member for Cheltenham (Major Hicks Beach) in favour of the judge in chambers. I have given this aspect of the matter very careful consideration, and I am satisfied about the easy accessibility of those concerned to the judge in chambers and what my hon. Friend said about the convenience of using the local magistrate. There are forty-two divorce courts and these cases will be considered by the judge in chambers. If there is any desire to vary an order originally made, there will be appropriate representations, and I would have thought that in this case the first person to hear of the desire would be the children's officer or the welfare officer as the case may be.

In the first instance, the person who sought to secure variation of the order would be the person in trouble, and that would percolate through the machinery and eventually come to the court. I am advised that, provided it is a proper case for legal representation before a judge in chambers, it will rank for legal aid, but there is no legal aid for juvenile courts for such purposes at least at present.

It seems wrong in principle by a Clause of this kind, which cuts right across one of the main purposes of the Bill, to divorce responsibility from power. If the Bill has any virtue at all, it is that there is a synchronisation of power and responsibility in one court from which will flow all the essential supervision required to ensure, as far as the law can ensure, that the welfare of children is maintained.

I can see no virtue in bringing in the whole machinery of the juvenile court when the administrative arrangements which the Bill provides for and those which will ensue from the rules of court, which are to be considered by the Lord Chancellor and which will stem from the administrative needs of the Bill, are adequate. I am satisfied that on balance there will be no advantage, even from the point of view of experience, convenience and intimacy, in using the juvenile court in preference to the High Court.

There is also the danger, having regard to what my hon. Friend the Member for Widnes said on Second Reading, that those children whom Dickens would describe as those of the deserving poor would have to go to the juvenile court, while the children of the rich could go to the High Court. I am all for equality, and my Bill as it stands is much nearer the Socialist concept of society than anything my hon. Friend has advanced in support of his Clause, and I therefore hope that the House will reject it.

The Solicitor-General

The political character of the concept does not matter very much with this Bill. If this discussion has taught one thing, it is that the same point does not greatly improve by repetition, and I am not anxious to make things worse by repeating still more.

The hon. Member's new Clause would apply only to cases where there were exceptional circumstances. It would be only to the freak case that the new Clause would apply. I confess that our view is that it would be a very odd and deplorable novelty if, when a learned judge of the High Court had, with due care, made an order of a special kind in what he conceived to be an exceptional case, magistrates in the juvenile court had power to vary it. That would not be in accord with the usual proprieties.

I do not want it to be thought that I am uttering any word which in any way decries the splendid work of the juvenile courts and, in particular, the splendid work of the hon. Member for Widnes. I am not surprised to learn that the hon. Member does it so well that he earns the admiration of even the hon. Member for Leicester, North-West (Mr. Janner). Certainly I do not regard the hon. Member for Widnes as a Teddy boy, and I do not regard the hon. Member for Leicester, North-West as a Teddy boy. No consideration of that kind arises.

However, it is fair and true to say that, whatever the magistrates in the juvenile court do, they are not ordinarily charged in any sense with the making, variation or discharge of orders made in matrimonial proceedings by a High Court judge, and it does not seem to be a very good idea to make that innovation.

This is a Bill seeking to implement the recommendations of the Royal Commission on Marriage and Divorce. That Royal Commission heard evidence from a large number of organisations and bodies with very special experience in these matters and yet, from beginning to end of its Report and recommendations, there is not a suggestion that the juvenile court should be given powers in these matters, or powers to vary the order of a learned judge.

These judges in the High Court will be sitting not in the Chancery Division, but in the Probate, Divorce and Admiralty Division of the High Court, and it is they who would be affected if the new Clause were added to the Bill. One might have thought from listening to the hon. Member for Leicester, North-West that judges were unnatural beings totally deprived of any kind of social intercourse, that they did not have children or grandchildren, and had no human sympathies, intelligence and practice. I wish the hon. Member could hear some of those applications with which learned judges in chambers deal.

Mr. Janner

If there was any implication of that kind, I hope that it will be entirely removed. I am concerned with the movements of judges and suggesting that, unlike juvenile court magistrates, they do not have an opportunity to participate in youth movements and in club work as the magistrates in juvenile courts are able to do from day to day.

The Solicitor-General

I am grateful to the hon. Member for making that plain. I know that the House will be relieved to hear that he was not casting any doubt upon the skill of Her Majesty's judges in the appropriate division of the High Court to make the right orders for the welfare of children in matrimonial proceedings.

It would be a misconception to think of a judge lacking local knowledge, or knowledge of the local welfare or children's services, for the purpose of varying or discharging his order if he wanted to do so. I believe that the hon. Member for Widnes and the hon. Member Leicester, North-West were deprived of the opportunity of serving on the Standing Committee which dealt with the Bill and which went into these matters to consider what would happen.

Under the new dispensation, there is a special team of welfare officers attached to the Divorce Division. They are probation officers seconded for the purpose. They are in personal contact with the children's officer, or whatever local authority service happens to be concerned, and the learned judge can, if he so desires, call them into advise him. They in turn can make contact, in any way with local information from the welfare service or children's officer, so that the learned judge can be informed as precisely as he desires about the local circumstances of a case.

That being so, I recommend to the House that, although this has been a most useful discussion, on the whole there is no reason to think that a High Court judge could not discharge the duty of varying his own order as well and as easily as a juvenile court could, and that it would be a pity to confer on somebody else the jurisdiction to do it.

2.30 p.m.

As regards access, all I meant in answering the hon. Member for Widnes (Mr. MacColl) was that in order to see a judge of the Divorce Division in chambers one does not have to come to London. The judge one sees is the judge of that division in the nearest divorce town to where one is. There are 42 divorce towns, and one is very unlucky if one is very remote from a divorce town for this purpose. The judges are in the assize towns three or four times a year. So I think that on the ground of inconvenience it is possible to state the case of the hon. Member too high.

I have to speak in somewhat technical language. It would be quite impossible to represent to the House that the Clause as it stands would be a desirable amendment to the Bill, because it has certain drafting defects, with which I shall not trouble the House unduly now. For instance, subsection (1) refers to: the power to enforce, vary or discharge an order for payment for maintenance or education … The wording is distinctly unfortunate, because the courts have no such power under the subsection (8) referred to. There is also a little difficulty about the conception of: Where the infant was ordinarily resident. That would involve the court in inquiring where the ordinary residence was at the material time, which is a complication.

Mr. MacColl

I am grateful to the Solicitor-General for his help in drafting, but my trouble was in dealing with the words of subsection (2) of Clause 5, which deals with the question of orders. It was in order to obviate any complica- tions of bringing those in that I thought it better to leave out the whole financial question.

The Solicitor-General

I quite understand the difficulties which may have involved the hon. Member. I am not seeking to be discourteously critical, but I am pointing out that, to be consistent with one's duties in regard to reasonable draftsmanship, one could not incorporate the Clause in its present form in the Bill. No doubt there are tiresome difficulties, and it is difficult when one is an amateur to set about trying to create a new Clause of this kind.

Question put and negatived.