§ Order for Second Reading read.
§ 3.39 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. Dennis Vosper)
I beg to move, That the Bill be now read a Second time.
This is a Bill which already has quite a long history behind it, a history which, I hope, is now entering its final chapter. The purpose of the Bill is to consolidate and to bring up to date the substantive law with regard to the jurisdiction and powers of magistrates' courts in matrimonial proceedings. I will attempt to move the Second Reading briefly and leave it to my hon. Friend the Solicitor-General to cover any points which may be outstanding.
The House will, no doubt, recall that the Royal Commission on Marriage and Divorce recommended that this branch of the law should be codified. Everyone concerned with this operation has for some time felt that action was needed. It may also be recalled that a consolidating Bill was introduced in another place in November, 1957, but it was then found that there was doubt about the proper interpretation of some of the provisions that were to be consolidated and it was then necessary to withdraw the Bill. It was, therefore, not only consolidation, but also clarification, that was needed and the Government thought that the opportunity should be taken to give attention, at the same time, to certain proposals which had been made for the amendment of the law.
In withdrawing the consolidating Bill, the Government accordingly decided to set up an expert Committee to advise on the replacement of the existing provisions by a single, up-to-date enactment and, at the same time, to advise on the best method of including in the new Measure certain relevant recommendations of the Royal Commission on Marriage and Divorce and also of making certain other amendments to the law suggested by experience of its working.
That Committee, which sat under the chairmanship of Mr. Justice Arthian 506 Davies, reported in January of last year. Annexed to the Committee's Report was a draft Bill which is substantially the Bill which I am now commending to the House. Before proceeding to the substance of the Bill, I wish to pay a tribute to Mr. Justice Davies and the members of his Committee. They were all, in different ways, experienced in matrimonial law and in the work of the magistrates' courts. We are indebted to them for their thorough and painstaking work. The Committee's Report was generally welcomed by the Press, by the women's organisations and by the professional associations most directly concerned. The Government feel that the Bill, which has been based on their work and which is before the House today, is a useful one.
Perhaps I may also, at this stage, pay a tribute to the work of the magistrates in this difficult sphere. The magistrates, both lay and stipendiary, perform a most important and socially useful task in dealing with matrimonial cases. My noble and learned Friend the Lord Chancellor quoted some statistics when the Bill was under discussion in another place which indicated the magnitude of this work which is discharged by the magistrates with the assistance of their clerks and the other court officers who are concerned in these cases. On this occasion, I wish to repeat only one figure that was then quoted, namely, that in 1958 no fewer than 24,000 applications were made to magistrates' courts under the Acts dealing with separation and maintenance orders with which we are concerned this afternoon.
To get a more complete picture of magistrates' work in this field, we should add in each year a further 6,000 or 7,000 applications under the Guardianship of Infants Acts, on which about 5,000 orders were made, and over 4,000 applications under the Affiliation Proceedings Act, on which nearly 4,000 orders were made.
Nor do these bald figures tell anything of the hours that may be spent on a single case: for, while some cases may involve no more than a single hearing, there are others that will involve protracted court appearances, inquiries by probation officers, and repeated enforcement proceedings.
507 Much less can the figures speak of the human problems, in an infinite variety, but all having in common a failure to make their domestic life a success, and looking to the courts for help and relief. The human problems that come before the courts are, to a large extent, beyond the reach of the legislator.
We owe it to those who administer this, to me at least, difficult law to see to it that the law that they administer is clear, concise, effective and, in some respects, I would like to say, simple, but, at least, no more complicated than the subject-matter requires.
In the Session before last Parliament enacted the Maintenance Orders Act, which gave to magistrates' Courts new and more effective methods of enforcing matrimonial orders. The House may already be aware that, while as yet we have no figures of the number of attachment of earnings orders made under that Act, the striking reduction in the figures of civil prisoners of all kinds— from over 900 early last year, before that Act came into force, to 378 in March this year—clearly suggests that the attachment procedure, although not entirely responsible for this reduction, is being used, and to good effect.
The time has now come for the revision of the substantive code of law governing maintenance proceedings. Most right hon. and hon. Members who are attending this debate will already have studied the Committee's Report, which sets out in considerable detail the reasons for which the various changes in the law are proposed. My hon. and learned Friend the Solicitor-General will be dealing with some of these points in winding up, and I will, therefore, confine myself to the principal changes in the law that the Bill seeks to make.
The first principal change is that the relief available to a husband is made substantially the same as that available to a wife. The second change, which is closely related to it, is that the court is given power, in certain circumstances, to order the wife to pay maintenance for the husband. These changes follow upon recommendations of the Royal Commission.
The third principal change in the law is that the court is given wider powers to make provision in the interests of 508 children who are brought within the ambit of the court by the matrimonial proceedings; these include power, where exceptional circumstances make it necessary, to commit a child to the care of a local authority, or, alternatively, to place a child under the supervision of a probation officer or a child care officer of a local authority. These provisions, which are to be found in Clause 2 (1, e and f) again follow in principle the recommendations of the Royal Commission. They give to magistrates' courts powers similar to those that were given to th
e High Court in the Matrimonial Proceedings (Children) Act, 1958.
The provisions in the Bill apply to "children of the family", a term which is defined in Clause 16 as meaning any child of both parties—which includes illegitimate and adopted children—and any other child of either party who has been accepted as a member of the family by the other party. This alteration was made in another place and I have no doubt that my hon. and learned Friend will wish to refer to it when he addresses the House.
The fourth principal change, which is made by Clause 7 (1) of the Bill, modifies a provision in the present law, which provides that a matrimonial order shall not be enforceable, and shall cease to have effect after three months, if husband and wife continue to reside together, by substituting the criterion of cohabitation for that of residence together. This provision is designed to avoid the cases of hardship which may arise when a wife wishes to leave her husband's home, but cannot do so because she cannot find other accommodation, and so is obliged to continue to live separately in the same home.
The fifth change in the present law is that the Bill gives the court power in certain circumstances to revoke or vary an order for maintenance if the party in whose favour it is made is living abroad. It was recognised by the Royal Commission, and, indeed, has long been recognised, that hardship can be caused when a spouse in whose favour a matrimonial order has been made goes abroad and continues to benefit from the order, but deprives the other spouse of the means of bringing proceedings for revocation or variation, because in those circumstances it is impossible to serve a summons.
509 Clause 9, which contains these provisions, has written into it safeguards which, we believe, are sufficient to ensure that a spouse who is thought to have gone abroad will not have a matrimonial order varied in his or her absence without reasonable steps having been taken to give him or her notice of what is intended. The House may recall that the Maintenance Orders Act, 1958, contains a analogous provision for the discharge or variation of an attachment of earnings order made in favour of a person who is residing outside the United Kingdom.
The sixth and final change in the law which is contained in the Bill, but was not in the Bill attached to the Davies Committee Report, is the increases in the maximum weekly maintenance payments which a magistrates' court may order. The Committee draws attention in paragraph 8 of its Report to the need for an increase. The Government accept that there is a need for increases in the existing amounts, which were fixed in 1949, and Clause 2 provides that the maximum weekly amounts shall be raised from £5 to £7 10s. for a spouse, and from £1 10s. to £2 10s. for each child.
These increases represent, in the Government's view, a reasonable estimate of the limits within which magistrates' courts should be enabled to work at the present time, in view of the undoubted increases in costs and wages since 1949. I should emphasise to the House that the new amounts, like the old amounts, are maxima, and that it will continue to be for the court to assess the proper amount to order in each case in the light of the facts of the case, and, in particular, the means of the parties involved.
Such information as the Home Office possesses suggests that at present it is not very common for magistrates' courts to make an order for wife maintenance up to the present maximum of £5, though it is sometimes done. If this is generally true, we may expect to find that when the Bill becomes law orders for more than £5 will not be frequent, but there will be cases in which they are justified. Hence the reason for the increase.
On the other hand, the Home Office's information indicates that orders for 510 child maintenance up to the present maximum of £1 10s. are not uncommon, and so one may expect more use to be made of an increased maximum for child maintenance.
I think that I should mention, at this stage, that Clause 2 (1, h) of the Bill, following the Committee's recommendation in paragraph 8, provides that when a child is committed to the custody of a third person, or of a local authority, each parent may, if his or her means allow it, be ordered to contribute up to 50s. a week to the child's maintenance, so that the third party or local authority may receive as much as £5 in all.
The proposed increase for child maintenance makes it desirable, as the Committee recognised, to increase similarly the maximum amounts which may be ordered in guardianship and affiliation proceedings. This is done in Clause 15.
Another respect in which the Bill differs from that annexed to the Report of the Davies Committee is in the definitions of "habitual drunkard" and of "drug addict". The Royal Commission thought that these definitions were too narrow, and recommended that the definition should bewidened so as to include the case of the man or woman who, by reason of constant drinking or drug taking, renders life intolerable to his or her spouse".The Davies Committee discussed this recommendation at some length, but while it recognised the stringency of the present test it found difficulty in the alternative recommended by the Royal Commission. After discussion of this matter in another place new definitions of habitual drunkenness and of drug addiction were included in the Bill, which are now to be found in Clause 16.
For the benefit of any hon. Member who may be interested, I should, perhaps, say a word on how the Bill applies to Scotland. Generally speaking, it does not apply; but certain parts of Acts consolidated by this Bill must be dealt with. The application Clause may look a little complicated, especially if its ramifications are followed through, but the position is simple enough.
First, English magistrates' courts are given jurisdiction, in certain matrimonial cases, over persons living in Scotland. This re-enacts existing law, but it may 511 assist the House if I explain what it involves. A person living in the neighbourhood of a magistrates' court in England may raise proceedings against someone living in Scotland and vice versa.
Secondly, in order that the writ of the English court shall run in Scotland, it is provided that the sheriff shall endorse a writ or summons before it is served in Scotland. Reciprocal arrangements are not affected, because matrimonial cases in Scotland are not dealt with at a lower level than the sheriff court.
The Davies Committee believed that the Bill which it approved would provide a convenient, workable and up-to-date system of law relating to matrimonial proceedings in magistrates' courts. The Bill was thoroughly discussed in another place and, I believe, further improved. I believe that the view of the Davies Committee is shared generally by those concerned in this work, and that the few modifications and extensions which have been made in the Bill since the Committee reported will enhance its value in these respects.
§ 3.56 p.m.
§ Mr. Eric Fletcher (Islington, East)
My right hon. and hon. Friends desire to support the Bill on Second Reading and endorse the welcome anticipated by the Minister. We have certain reservations on matters of detail, many of which can, no doubt, be dealt with in Committee, though I think that it would be convenient if I indicated some of them; and I have no doubt that my right hon. and learned Friend the Member for Newport (Sir F. Soskice) and others of my hon. Friends will indicate points of detail which they wish to raise during this Second Reading debate.
For my part, I should like to endorse what the right hon. Gentleman has said by way of tribute, first, to the magistrates who perform such an admirable social function in dealing with these matrimonial cases which come before them to the extent of some 24,000 or 25,000 applications a year. I think that we all recognise that they deal with an essentially human problem, and that it is most desirable in our society that there should be swift, clear and relatively simple procedure which enables, for example, a wife who has been deserted, or for some 512 reason is entitled to a separation order, to obtain an order for separation or for maintenance, with the minimum of trouble and expense.
I should also like to endorse the tribute paid to the Arthian Davies Committee, which performed a most valuable function, which must have saved both this House and another place a good deal of time, in having exhaustively reviewed the law on these subjects so that in the Bill it can be both consolidated and amended.
There was one omission, I noticed, in the right hon. Gentleman's speech, which I hope that the Solicitor-General will be able to deal with when he replies to the debate. I observed that the Lord Chancellor, in another place, stated that it was his intention, at an early date, to extend the application of the Legal Aid and Advice Act to applications coming before the magistrates in matrimonial cases, both before magistrates' courts and quarter sessions. Personally, I regard that as most desirable, and I hope that we shall have confirmation that that intention will be implemented at an early date.
The right hon. Gentleman has outlined the main changes in the law which this Bill introduces, and for my part I welcome all of them. We are glad to observe that the present law is to be made entirely reciprocal as between husband and wife. We welcome, also, the fact that the Bill, in so far as it makes certain changes, places the emphasis on the necessity for making better provision for the children of a marriage which has broken down. There are a number of miscellaneous improvements in the Bill designed to bring within the scope of this branch of jurisprudence provision for illegitimate and adopted children and other children who are members of the family of a marriage which has broken up and who are, I think, very happily described, thanks to an Amendment in another place, as "children of the family". We all agree that in these matters it is the interest of the child which should be the governing factor.
I also welcome very much the announcement of considerably increased maxima which magistrates are to be empowered to award in future both in respect of a spouse, which is being increased from £5 to £7 10s., and in the case of 513 children the present allowance of 30s. being increased to 50s. Some of us may doubt whether even these maxima are adequate, bearing in mind the rise in the cost of living, the depreciation in the value of sterling and the fact that this legislation may endure for some time before we have an opportunity of reconsidering whether these new maxima are adequate in all circumstances.
There is one incidental point with regard to the position of children which I welcome. As I understand, the law at present is that magistrates have power to make orders for the maintenance of children not only up to the age of 16, but also up to the age of 21 in cases where children are undergoing full-time education, or training, or are incapacitated. There is a very notable and commendable amendment in the law which will now, for the first time, enable a magistrates' court to make such an order in respect of a child over 16. That has been a gap which has been apparent in various cases in the law hitherto and is now being rectified.
I turn to three specific matters on which I would venture to offer some criticism or, at any rate, make some observations which I hope the right hon. and learned Gentleman the Solicitor-General may be able to deal with in his reply. The first arises under Clause 2(1, b) of the Bill. Hon. Members who have the Report of the Davies Committee before them will appreciate that it annexed as a schedule to its Report a draft Rill which was, in fact, the basis of the Bill introduced into another place, and it was there provided that the order which the magistrates should make in matrimonial proceedings in deciding how much should be awarded to a complainant should be such sum as the court considered reasonable having regard to the respective means of the parties.
There has been, in practice, a good deal of uncertainty as to whether magistrates' courts, in fixing the amount of the award, were entitled to take into account not only the means of the parties but their respective earning capacities. The question sometimes arises: should the court consider in, for example, an application by a wife for a maintenance order not only the wife's means, if any, but also her earning 514 capacity? As the House will be aware, it frequently happens, particularly where there are no children, or where there are no young children, that a wife is sometimes in a position to earn very nearly as much as her husband. In such a case, should the husband be penalised in the amount awarded to the wife if the wife chooses not to earn?
This was a matter which was considered at some length by the Royal Commission on Marriage and Divorce, over which Lord Morton of Henryton presided. The Commission gave a great deal of thought to it and reported in the following terms:If the wife is not working, it is, however, uncertain how far the court has to take into account the amount she would he likely to receive if she were earning. … 'Of course, if a wife does earn, then her earnings must be taken into account; or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account; or if she had worked regularly during the married life, and might reasonably be expected to work after the divorce, her potential earnings ought to be taken into account. Except in cases such as these it does not as a rule lie in the mouth of a wrongdoing husband to say that she ought to go out to work simply in order to relieve him from paying maintenance'.This matter was then considered by the Davies Committee, which took rather a different view of the legal position. On page 29 of its Report it says, in parenthesis, in a paragraph which is printed within brackets:… (It was suggested to the Committee that under the present law the court may not take into account a wife's earning capacity … and that the draft Bill should give express power to do this …)It then says that it came to this conclusion:… the Committee is satisfied that, although practice may differ, there is no such rule ….I observe that the present Bill contains a notable departure from the draft Bill produced by the Davies Committee. Clause 2 (1, b) now provides that the court shall award such sum…as the court considers reasonable in all the circumstances of the case.Personally, I would have preferred an explicit direction to the court to have regard not only to the means of the parties, but also to their respective earning capacities. Perhaps the Solicitor-General will be good enough to say whether he is satisfied that the 515 present language laid down for the future guidance of magistrates' courts is sufficient to enable the magistrates' courts to follow the practice which for a long time past on this branch of the law has been followed in the High Court.
The second point on which I desire to say a few words arises under Clause 7, and is a matter of some social importance. As the law now stands, a wife whose husband fails to maintain her has to leave him and leave the matrimonial home before she can enforce an order for maintenance. As I understand the provisions of Clause 7, the law on that subject is not substantially changed. One appreciates that a wife who is deserted or a wife whose husband fails to support her by paying her any household allowance is entitled to go to the court and obtain what has hitherto been called a maintenance order but which in future, under the terminology introduced in the Bill, will be called a matrimonial order. But a wife will not be able to enforce such order until she has actually departed from the matrimonial home.
This is a situation which in my experience, and I am sure in the experience of my hon. Friends, often imposes considerable hardship on a wife, particularly in urban areas where there is an acute housing shortage and a serious housing problem and in which very often, with the best will in the world, it is impossible for a happily married couple and family to obtain any alternative accommodation. But it is infinitely more difficult for a wife, deserted in such circumstances, perhaps with young children, to go out and find somewhere else in which to live.
I appreciate that the terms of the Clause use the word "cohabit". Clause 7 says thatthe order shall not be enforceable and no liability shall accrue thereunder until they "—that is, the parties—have ceased to cohabit.I am chinking of cases which have come to my knowledge in which the wife has been living with her husband and children, frequently in only two rooms and sometimes in only one room, and in circumstances in which friction has arisen, very often aggravated by the deplorable housing conditions in which so many people are, unfortunately, con- 516 demned to live, and in circumstances in which a wife is entitled to obtain an order, obtains it, but has this difficulty about enforcing it.
This was a matter which was also considered by the Royal Commission, and one reason why I venture to urge that the Bill should be amended in this particular is because the course which I am urging was strongly recommended, by a majority of eighteen to one, by the Royal Commission on Marriage and Divorce.
The Commission said:We recommend … with one dissentient, that if a wife obtains an order on the ground of her husband's wilful neglect to provide reasonable maintenance for her (or the children), her husband should be liable to make payments under the order, and it should be enforceable, notwithstanding that husband and wife are living together in circumstances amounting to full cohabitation.The Commission gave its reasons for making that recommendation, and I regard it as a matter of regret that the recommendation is not carried into effect in the Bill.
It is perfectly true that the matter was considered, but apparently not in any great detail, by the Arthian Davies Committee. It dismissed it somewhat lightly on page 37 of its Report, in which it merely says that… the Committee have not felt justified in including in the draft Bill the Royal Commission's further recommendation (115) that where an order is made on the ground of wilful neglect to provide reasonable maintenance the defendent should be liable to make payments under it, and the order should be enforceable, even if the spouses are living together in circumstances amounting to full cohabitation.The Committee gives no reason whatsoever for departing from the recommendation of the Royal Commission which, as I have said, was carried by a majority of eighteen to one.
In my view, not only will cases of real hardship continue to arise unless this provision in the Bill is amended, but it is important to notice that there is this further serious anomaly that unless the Bill is amended in this particular a very regrettable difference in the law will continue to obtain with regard to cases that arise in the High Court and cases that arise in the magistrates' court.
If a husband and wife quarrel, and the wife goes to the High Court to obtain a separation and a maintenance allowance, 517 she is entitled to obtain an order and to enforce it, notwithstanding the fact that the parties still continue to cohabit and live in the same household and presumably in the same room. This is a case of an invidious social discrimination for which I, personally, can see no justification at all, and I hope that it is one of the defects which we can redress in Committee.
Then there is the third point, which will require some consideration. The Bill provides, for, I think, the first time, in Clause 2 (1, e) that in future the magistrates, in making provisions for the custody of the children of a marriage which has broken down, should be able to commit the children not merely to the custody of either parent or some other individual, but to the local authority. In so far as that is in the interests of the children, I very much welcome it. of course. I appreciate that it is a provision which will be exercised only in special circumstances, and I hope that it will be very carefully exercised.
Two questions, however, arise. The first, in the interest of the child as well as that of the local authority, is whether, in such a case, there is any reason why there should be a restriction on the maximum amount which either parent should be ordered to pay. The House will be aware that the general law in regard to children requiring care and protection is laid down in legislation dealing with children, and it frequently happens that cases arise in which the child is committed to the care of a local authority in circumstances where there may be unhappiness in the matrimonial home, but it has not become such as to justify either party in going to the court for a matrimonial order.
In all such cases the magistrates are entitled to make an order for a contribution from either parent without any limit of amount. The only limit that is, in fact, acknowledged is the cost to the local authority of providing for such a child. My information, derived from the Association of Municipal Corporations, is that the average cost of maintaining a child is over £4 a week, in some places as much as £7 a week. In the interests of uniformity of the law, I ask the Government, therefore, to consider whether, in this class of case, there is any merit in prescribing the 518 same maximum as applies to an order where the child is in the custody of one of the parties to the marriage.
There is a further difficulty that arises in this class of case. In cases of children committed to the custody of a local authority, under the existing law the local authority has parental rights. It is able to exercise the discretion of a parent with regard to the education of a child, with regard to treatment in hospital should such be necessary, with regard to access by another spouse, and so forth. As the Bill stands, it is uncertain whether, if a child is committed to the care of a local authority, the parental rights will be vested in the local authority, or will remain with the court, or perhaps with the parents. That is a Committee point which, I hope. we shall be able to clear up later.
No doubt there are other points of detail which will be raised during the course of this debate. I have spoken of those that occur to me and, having made those recommendations, I conclude as I began, by endorsing the welcome which has been given to the Bill, based, as it is, on the very valuable labours and advice of the Arthian Davies Committee.
§ 4.22 p.m.
§ Mr. W. G. Morgan (Denbigh)
In accordance with tradition, I ask for the indulgence of the House on this, the first occasion that I have had the honour to address it. In doing so, I have two things well in mind. The first is that I must make some appropriate reference to the constituency which I have the honour to represent. The second is that I shall be uncontroversial.
In the limited time at my disposal I feel that I can hardly do justice to my constituency. I like to think that it is the fairest part of this realm, being, as it is, in the heart of North Wales. We have many beauty spots. We have majestic mountains. We have the Vale of Llangollen, the Vale of Clwyd, and even part of the Vale of Conway. I think it right to say that we also have an excellent seaside resort in Colwyn Bay. Our beauty spots have achieved national fame, but we can do even better than that, because in Llangollen we have achieved international distinction by the International Musical Eisteddfod that 519 has been held there regularly for the last twelve years.
Before I pass from the scenic grandeur of North Wales to the rather more prosaic provisions of the Bill, it is only right that I should say, in fairness to my constituents, that they are not unduly given to litigation of this kind. I am prompted to make a modest contribution to the debate merely because it is a matter of considerable public concern. I am the more inclined to do so because this important Measure is probably of greater public concern than many other Measures which have been much more publicised when they have come before the House.
As regards the second requisite for a maiden speech, I feel it will be difficult in this case to be controversial, because this is a Measure that will be welcomed on both sides of the House, since there is no political flavour to it. Its importance can be gauged from the fact, which was brought to the notice of the House by my right hon. Friend, that about 25,000 applications under the provisions of the existing Summary Jurisdiction (Separation and Maintenance) Acts are made to the courts annually. I believe that about 14,000 orders are made and, of course, a further 5,000 orders, roughly speaking, are made annually under the provisions of the Guardianship of Infants Act. Put another way, this is roughly equivalent to the number of matrimonial causes entered annually in the High Court. I would like to make this comment as well, that the financial effect of some of those orders made in the magistrates' courts is often far greater in the last analysis than those of civil actions tried in the more majestic surroundings of assize courts.
I endorse the tributes which have been paid to the work done by magistrates who have carried out their work on the special panels appointed for this purpose since 1935. I also add a tribute to the work done by magistrates' clerks. Having had some experience in this kind of litigation, I cannot conceal my admiration for the way in which magistrates' clerks have often dealt "off the cuff", as it were, with knotty points raised by the ingenuity of advocates.
The Bill contains many points on which it may be commended. The first is that it consolidates the law. That 520 is always desirable, and particularly so when the administration of this part of the law is left to lay magistrates to such a great extent. Secondly, it makes the relief which is available to a husband the same, broadly speaking, as that available to a wife. For the last eighty years we have been concerned in this country to raise women to the status of men. Paradoxically enough, in this case we are raising men more or less to the status of women.
The provisions enabling husbands to sue wives are not actually an innovation. It is a little-known fact that such proceedings can already be taken, for example, on the ground of adultery. Now it will be possible for them to be taken on the grounds of cruelty and desertion as well, and, of course, the provisions for the payment of maintenance are a new departure.
Here the Bill does not quite make men the equal of women, because a wife may obtain maintenance against a husband even though she has an earning capacity of her own, whereas the husband can obtain maintenance only if his earning capacity has been impaired through old age, ill-health or disablement. However, I do not think that men will begrudge to the fair sex this remaining crumb of privilege. I doubt whether much recourse will be had by husbands to the right of maintenance given by the Bill, but it establishes a just and necessary principle.
I welcome, also, the wider powers given to magistrates' courts to make orders for the benefit of children of a marriage that has broken down, which, broadly speaking, are the same as those which have been enjoyed by the High Court since the passing of the Matrimonial Proceedings (Children) Act, 1958. I welcome, too, the very necessary increase in the maximum weekly amounts that can be the subject of an order, and also the replacement of the old criterion of residence by that of cohabitation as a bar to the enforcement of an order.
On this, of all occasions, I must not exceed my time, but I hope no one will consider me impertinent if I refer to three points of detail. The first has already been referred to by the hon. Member for Islington, East (Mr. Fletcher), and I hope that the matters I 521 am referring to may be considered at a later stage or perhaps in ancillary legislation. I am fortified in referring to them by the fact that they have already ben raised in another place by persons much more competent to do so than I am.
One observation I make is that it will still, even under this Measure, be necessary for a wife to leave her husband before an order which she has obtained can be enforced. She will have to leave him even if it means only that she sets up a separate ménage—if that is possible —under the same roof. As the hon. Member for Islington, East said, the Royal Commission which discussed this matter was heavily against the state of the law whereby a wife has to leave her husband before she can enforce the order which she has obtained. I believe that the voting was eighteen to one against.
There are two objections to a change of the law in this respect. The first is that it would be casting too heavy a burden upon magistrates to interfere, as it were, in the economy of a matrimonial home by making an order in the case of a wife who continues to live with her husband. It has also been said that the problem has, to some extent, been met by the replacement of the criterion of residence by cohabitation. But it does occur to me, as I believe it occurred to the hon. Member for Islington, East, that there is a possibility of injustice.
I have in mind the kind of case where a wife has an improvident husband, who spends his money on drink and the "dogs." She can get an order on the grounds of his wilful neglect to provide her with reasonable maintenance, but it may be impossible for her to leave him, and the accommodation may be so limited that it will be quite impossible for her to cease cohabitation, or, at any rate, to prove that it has ceased. That is the kind of case I have in mind. It may be rare, but as the law stands injustice could result, and I would be happy to see the recommendation of the Royal Commission implemented.
I will discuss two other matters briefly. One is the technical matter of condonation. It is an important matter in the matrimonial law generally. The law, since the decision in Henderson v. Henderson in 1944, has, in this respect, been unfairly weighted against the 522 husband, and the Royal Commission, presided over by Lord Morton of Henry-ton, recommended that husbands and wives should be placed on equality in this respect. The objection to that being done in this Bill is that it would be impracticable to have one definition of condonation for the magistrates' courts and a different one for the High Court, but this is a matter which should be considered in some way. Some steps should be taken to amend the law in this respect.
My last point is very simple. It is not a profound legal point, but, in practice, it may be the most important of all. Under the Income Tax Act, 1952, small maintenance payments up to £5 in the case of a spouse and 30s. in the case of a child can be made without deduction of Income Tax. This provision should be extended to the increased amounts of £7 10s. and £2 10s. respectively which are fixed in the Bill. As we are all no doubt painfully aware, sometimes it is a difficult and lengthy matter to obtain repayment of tax, and the provisions of the 1952 Act should be applied to this new Measure.
That, of course, is really a matter for my right hon. Friend the Chancellor of the Exchequer and I appreciate that it is a delicate matter to raise at this time of the year. I hope, however, that he will give it his consideration. I would be very grateful if my right hon. Friends would also give their consideration to such points as I have raised. In conclusion, may I express my appreciation to hon. Members for the indulgence which they have shown me on this occasion.
§ 4.35 p.m.
§ Mr. Leo Abse (Pontypool)
I am sure that the whole House would like to congratulate the hon. Member for Denbigh (Mr. Morgan) on the very erudite contribution he has made. I regard myself as fortunate, coming from South Wales,to be able to congratulate a Member from North Wales. When he speaks of the beauty of his land, I am sure we all agree that, apart from South Wales, North Wales is indeed the fairest part of the realm. I am sure that he will make many contributions, not only to matters such as this, with considerable weight, but also in speaking on matters broadly affecting Wales, which concern all of us.
523 I hope that I shall not be regarded as being churlish if I am a little restrained in my congratulations on this Bill. Certainly it is not because I wish in any way to do other than join those who applaud the efforts made by magistrates and their clerks in dealing with this intricate part of the law. Nevertheless, I feel that there are certain aspects which are, in this field, being neglected and which are of considerable importance.
We have been given a short history of the events leading to the Bill, and certainly I would not like to go back to more than 100 years ago when matrimonial causes were in the hands of ecclesiastical courts. These courts, when they administered the matrimonial law, took it as their first task to attempt reconciliation; that was a pastoral office of the Church. It is regrettable that secular courts are ill-equipped to make similar attempts with the same zeal.
I would have thought that the very distinguished Departmental Committee, presided over by a distinguished Welshman, would not, when charged with the task of making a workable and up to date system of matrimonial proceedings in magistrates' courts, have been constrained, even by its rather narrow terms of reference, to avoid re-examining the present machinery for attempting reconciliation. Certainly the desperate need for adequate machinery is underlined by the figures which have been given— 24,000 applications made to magistrates' courts under the Summary Jurisdiction Act in 1958. These are the cases which probably lead, ultimately, to seven marriages out of every 100 in this country being doomed to end in the divorce court.
The extension of legal aid to matrimonial proceedings, and the passing of this Bill, will undoubtedly succeed in taking major steps in perfecting the machinery for the severance of marriages in the land. I regret that the State does not pursue with the same energy and sense of responsibility a service that would mean that some—possibly 50,000 —children would not, each year, suddenly find that what we are now describing as a matrimonial order or a decree of the higher court has caused them to lose one or—by the workings of this Bill—both parents. This Bill 524 once again gives painstaking attention to marital rights but is comparatively indifferent to what I may regard as family rights.
It is now almost twenty-five years since the work of probation officers in reconciliation was acknowledged in the Domestic Proceedings Act, 1937, and it is fifteen years since Lord Merriman's proposals to build an element of conciliation within our marital law were rejected. It is thirteen years since the Denning Committee called for a State-sponsored marriage welfare service.
Surely a Bill responding to the request that there should be brought into being an up-to-date system of law relating to matrimonial proceedings would in the face of the persistent contemporary clamour for maintenance orders and divorces, have brought some hope that some new attempt would be made to save children from the disaster of the broken home. Instead, all the Bill does is to leave the hapless probation officer to carry yet more burdens. To the task of marriage reconciler must now be added by this Bill the new statutory rôle of vicarious parent.
I wonder whether, when passing the Bill, we appreciate fully what burdens already fall upon probation officers. At present, the typical city probation officer regularly supervises about 70 juveniles and adults who come before the courts. He can quite easily give 200 reports on offenders each year to magistrates' courts and 50 reports to quarter sessions. He prepares scores of reports for psychiatrists on juveniles in custody. He reports to attendance centre officers on the boys being sent to them. We have given him extra burdens recently by causing him to act as guardian ad litem under the recent Adoption Acts, and he has supervision orders by the score to follow up on fines which have been made on dozens of young people. Now the Home Office clearly intends that the probation service should carry the after-care of under-21's released from the detention centres.
I do not want to go on enumerating the burdens which fall upon probation officers. It seems to me far easier to pass a Bill of this character placing extra burdens upon them than to expect those duties to be carried out with efficiency. It is obvious that with his present burdens the probation officer 525 cannot adequately cope with what is the most exhausting task of all, which is to attempt to bring an armistice to the battle of the sexes.
In any event, it is certainly no disparagement of the probation officer to say that he is ill-equipped and ill-trained very often, as well as absurdly low paid for his task. Some of the best probation officers I know are men over 30 who have received only twelve months' training, only three months of which is anything more than an empirical course.
But the task of conciliation between parties whose love has temporarily turned to such hate as to bring them into magistrates' courts, as I well know from my own experience, is essentially a professional one. Well-intentioned magistrates may kindly cajole them; solicitors may, as they so often do, endeavour to bring their warring clients together; and overworked probation officers may occasionally succeed. But, more usually, if success is to be attained, problems between the man and wife need to be levered out by psychiatric help. Magistrates and solicitors can deal only with the explicit surface problems. The subject matter of complaints enumerated in Clause 1 are mere symptoms, not causes, of the breakdown of marriage. To attain a real catharsis, readjustment and reconciliation, is a psychiatric task, and the machinery and personnel should be available to help those who come before the courts.
I am aware that built-in reconciliation procedures within the law in some Continental countries have been reduced to a farce or a mere formality, but there have been other attempts made, both in the United States of America and Canada, that are worth trying out in this country.
In Canada, for example, I understand that family courts exist in Montreal, Toronto and Quebec. In Toronto, the family court is housed in a magnificent building, has a president who has a background of child psychology and philosophy, with experience of social work, and several of the judges of the court are full-time, and not all of them are lawyers. The court possesses splendid facilities, including an up-to-date psychiatric clinic with a full-time psychiatrist as director and a full-time psychologist as deputy director. It is 526 endowed with a large lecture room and has, I understand, the aid of social workers. In the United States, too, there are a number of such clinics which are either independent bodies placing their services at the disposal of the court or in fact belonging to the court.
I know that every time the Home Secretary mentions psychiatrists in a discussion on crime and delinquency Tory back benchers reach for their whips, but surely even the most unsophisticated of his back benchers would not raise objections to the deployment of contemporary depth psychology techniques to prevent broken homes. Even those back benchers must know that the most casual reading of the case histories of boys in our approved schools shows that for the children of broken marriages there is a direct route from the magistrates' matrimonial courts to Borstal.
It is true that, under the Bill, to protect such children a child can be committed to the care of the local authority or placed under its supervision. This is one more burden being placed on child care officers. We pass the Bill. That is easy. They have the burden. They, like probation officers, are hopelessly overstretched. Only 650 people have been trained in twelve years for a service whose strength needs to be kept at about 1,400 and whose requirements for newly trained personnel are certainly not less than 200 a year. Whilst in the Bill we shift more responsibility for children away from the parents to these officers, we continue to expend wretchedly inadequate amounts both upon their recruiting and their training.
People today are marrying much younger, and so there is bound to be— in fact, I believe I can already see it— a tendency for many more younger people to turn to magistrates' matrimonial courts, particularly when trouble arises during the first three years of marriage when they are substantially debarred from proceeding to the Divorce Court. Perforce they will be coming to the courts when they have very young children. Psychoanalytical studies in delinquency all point to the permanent emotional stunting which can be traced back to an unstable first five years of life. These young marrieds who have not shaken down to the disciplines of married life 527 come to the courts we are discussing. A healthy society, for their sake and the sake of their children, should have something more to offer than a harassed probation officer and a Bill such as this which so efficiently codifies the degree of hate, recrimination and indifference necessary to obtain a separation.
In a recent custody application a pathetic document was exhibited to one of the affidavits. It was the incoherent plea of a 7-year-old girl living unhappily with her father and his brand-new youthful wife. Her plea ended by asking that the mother—the child's real mother-should have the custody of the child. The child continued:When will they tell me where I am going?Who decides these things, anyway?To that child's questioning and to all such children this type of Bill indeed gives a dusty answer.
In my view, we shall have a right as legislators to congratulate ourselves on having an up-to-date matrimonial law only when we have built into it a conciliation service adequately manned by psychiatrists, psychiatric social workers and an adequate number of family case workers.
§ 4.48 p.m.
§ Mr. Graham Page (Crosby)
I am rather embarrassed at intervening after the eloquence from both North Wales and South Wales. I congratulate my hon. Friend the Member for Denbigh (Mr. Morgan) on his most eloquent, interesting and informative maiden speech. I was particularly gratified by his very generous and kind remarks about magistrates' clerks. I was one myself once. From knowledge thus gained, and gained too from practising in the magistrates' courts, there are one or two points to which I should like to refer on the Bill, without referring to all the good points which have been mentioned. These are, I hope, two constructively critical points.
I look at the Bill from the point of view of what I might call the fourth parties. There are normally three parties to these proceedings—the husband, the wife, and the child or children. In certain cases there is, as it were, a fourth party.
The definition of "child of the family" includes the child of either the husband or the wife concerned in the proceedings 528 by another. That means that there may be a parent not a party to the proceedings concerned with a child about whom an order can be made under the Bill; a parent who should be entitled to express an opinion to the court as to the future of that child. Indeed, the Bill as drafted allows that parent to be represented before the court, or to appear himself, or herself, before a court in certain circumstances.
Under Clause 2 (1, d), for example, the court can make an order for the legal custody of the child. Under paragraph (e) the court can make an order committing the child to the care of the local authority. Under paragraph (f) the child can be committed to the custody of some independent person. Under paragraph (g) the court can make an order as to access. In all those cases the court may be dealing with a child who is not the child of both the husband and wife then before the court. Under Clause 4 (6) the parent of such a child is entitled, as I read that subsection, to come before the court and make representations concerning that child.
I am not sure, however, from that subsection, nor from the Bill as a whole, exactly how that person is brought before the court. I think that under paragraph (b) of that subsection it is necessary for the persons who are already parties to the proceedings to give some sort of notice to the parent of the child, but it is not clear how that parent is to be notified and brought before the court. Under Clause 10, which deals with the variation of an order, where there is a child of the family who is not a child of both parties to the marriage, the parent of that child has a right to be heard.
There is a strange difference between Clause 10 (1, a) and Clause 4 (6). Under Clause 4 (6) there is a proviso that there is no need to give notice to any person who is the father of an illegitimate child unless that person has been adjudged by a court to be the father of that child. That proviso does not appear in Clause 10, and I am a little puzzled why it should appear in Clause 4. It seems that to have the right to come before the court on these matrimonial proceedings the father of the illegitimate child concerned in these proceedings must have been adjudged by a court to be the father.
529 It might be that amicable arrangements had been made for the child to live as a child of the family, and in such a case there would be no court order. It is in such a case that the father of the illegitimate child would be most likely to assist the husband and wife parted. I do not know whether under that proviso it will be possible for the court, in these matrimonial proceedings before it, to adjudge a person to be the father of the child. I do not know whether it could be done in one proceeding or whether this proviso requires it to have been done before, but it is a matter which might be looked at. We ought to try, not necessarily for the sake of the parent of the illegitimate child but for the sake of the child itself, to see that if that parent desires to help in the difficult circumstances which may have arisen, he or she has notice of the proceedings and an opportunity to come into court to help in the future of the child. That is one type of fourth party to these proceedings.
The other type of fourth party is the person with whom adultery may be alleged. Under Clause 1 (1, d) adultery is one of the causes upon which complaint can be made, and therefore an order can be made. There is nothing in the Bill which obliges the party alleging adultery to give notice to what we would call in the High Court the co-respondent, or, if it were a woman, the woman intervener.
These matrimonial proceedings could go through, a decision could be made by the magistrate that adultery had been committed, say by the wife with Mr. X, his name could be blazoned in the court and in the headlines of the local papers, and Mr. X may know nothing about the proceedings having been brought. That seems grossly unfair.
The Royal Commission recommended that some form of procedure should be set up to give the person whom the noble Lord, the Lord Chancellor, referred to many times as the paramour, notice of adultery. The Royal Commission said:Nevertheless, we think that it is right in principle that a person who is alleged to have committed adultery should be allowed to defend himself. Accordingly, we recommend that notice of an allegation of adultery should be sent by the court by registered post to the last known address, if any, of the third person: that person should then have the right to 530 appear and defend himself or herself against the charge. We consider that if this simple procedure were adopted, it would, so far as is reasonably practicable, rule out the possibility of injustice being done.I emphasise the words:if this simple procedure were adoptedbecause the argument against giving notice to a co-respondent, or to a woman intervener, and allowing him or her to come into the proceedings is that it would complicate the proceedings before the magistrates. The Royal Commission did not think that, and surely that is no excuse for injustice to the person whose does not know whether the proceedings are taking place and yet is accused of adultery in those proceedings.
A further argument against the Royal Commission's recommendations has been, "Oh, this does not happen." The Lord Chancellor in another place continually said, "It does not happen." The argument is that if a wife is accused of adultery and she wants to deny it she usually brings the man with whom she is supposed to have committed adultery before the court. Sometimes he is called by the complainant. It is therefore said, "Usually he is before the court, and knows all about it."
There was evidence before the Royal Commission of a case which is exactly of the type I have in mind when I say that this is unfair. Mr. Wilson, the president of the Justices' Clerks Society, gave evidence before the Commission. I will put his evidence in my own words rather than read a long paragraph. He referred to a man and wife who were on bad terms. The wife was a neurotic, who often went to see her doctor. In order to annoy her husband, one day she said that she had habitually committed adultery with that doctor, and the husband believed her. The story was quite untrue, but the husband brought proceedings in the magistrates' court alleging that adultery. Fortunately, the justices' clerk was very concerned about this allegation against a well-known local doctor, and he consulted the Director of Public Prosecutions as to what should be done. In the end, the case did not come into court and the doctor did not receive the publicity which he might have done, which could have been very damaging to him.
That is a particular instance; indeed, it may show why the argument is used 531 that this kind of thing does not happen. I agree that magistrates' clerks take some care in these matters when they see allegations of this sort being made and try to prevent damage occurring. But it is not up to magistrates' clerks to do that. It is not their job, and perhaps they are acting most improperly when they do it. There is, therefore, not merely a mere possibility of injustice here; injustice is done in many cases, especially in that a magistrates' court order can be used in the High Court in subsequent divorce proceedings as prima facie evidence of the facts found by the magistrates. That means that a person may be accused, with no knowledge to himself or herself, of having committed adultery. The magistrates may find that proved without calling that man or woman before them, and the order of the magistrates may go to the High Court as prima facie evidence that adultery has been committed. A quite simple procedure can avoid that. The person alleged to have committed adultery can be given notice.
The argument that this would be complicated is overcome by the fact that legal aid is to be applied to proceedings in magistrates' courts. Further, it is nothing new for three parties to appear before the courts, where there were only two to start with and one more is brought in as a third party. It happens in connection with the Food and Drugs Act and the Public Health Acts. An owner may be prosecuted for some offence and he may say, "I am not responsible; it is the occupier who is responsible. I want to bring him into the proceedings. He ought to have provided the dustbin," or, "He ought to have put in the grate, for the clean air programme." It is quite a usual proceeding in magistrates' courts for notice to be given by one party to bring in a third party.
That procedure could be applied to the Bill, and I hope that my hon. and learned Friend the Solicitor-General will give this matter serious consideration. The argument that I am now putting forward failed in another place, but I hope that it will be more successful in this House.
§ 5.4 p.m.
§ Mr. Charles Royle (Salford, West)
The hon. Member for Crosby (Mr. Page), in his usual analytical way, has raised 532 some very important points. I am obliged to him for doing so, and especially so in regard to one point which he emphasised. I am delighted that he has again brought to the notice of the Government the proviso to Clause 4 (6). It is true to say that in these circumstances nobody is better able to help a matrimonial court than the person who is accused of being the father of an illegitimate child when the proceedings before the court are based on adultery. Like the hon. Member, I hope that the Government will look again at this proviso in order to see whether it is not possible to remove this stain and to give people in this position a proper opportunity to state their case.
As the hon. Member said, cases have occurred in which men's names have been bandied about because of reports which have gone outside the courts. These people have found themselves in very difficult positions. They are entitled to receive adequate notice in order that they may appear in proceedings of this kind.
As far as I remember, everyone who has addressed the House so far, apart from the Joint Under-Secretary of State, has been either trained or learned in the law, and I rise as the first layman to speak since the Minister himself. On that account, I may claim to be entitled to express the thanks of lay magistrates to almost everybody who has spoken about them. Starting with the right hon. Gentleman himself, commendations have been made in respect of the work of the lay magistrates and stipendiary magistrates in matrimonial courts. We lay magistrates feel that in our work in the matrimonial courts we are probably rendering to the community a much greater service than we are able to render in the ordinary adult courts in which we sit. Matters there are very difficult from time to time, but in the matrimonial courts we are faced with human problems day after day and week after week, and in those circumstances it is very nice to know that what we are trying to do is appreciated.
I want to deal with what was said by my hon. Friend the Member for Ponty-pool (Mr. Abse). He dealt at great length, in a powerful speech, with the question of reconciliation, and he 533 pointed out that the Bill in no way touches that great subject. I am as concerned as he that Parliament should not always act in a way which creates the impression that it is helping to break up marriages while doing very little to maintain them. I am sorry that my hon. Friend is not present, because I wanted to tell him that although I largely agree with him about the principle of the matter, I thought that he drew some rather exaggerated conclusions. It seems to me to be cracking a nut with a sledgehammer to try to bring about reconciliation with all the paraphernalia of the institutions which he described in coun-tries like Canada and the United States.
I should like to see incorporated in the Bill the right type of reconciliation machinery, even though it is in the hands only of magistrates. Perhaps I am betraying a little magisterial pride and, if so. I apologise. But I feel that magistrates could be given much greater powers to enable them to do more in the way of reconciliation work. I should like to see established special reconciliation courts where there might be one magistrate, or perhaps two at the most, who would, as it were, hear the preliminaries of a case. They would hear the application, not in detail, but a general statement. If the court felt that there was a real chance of saving the marriage, a date could be fixed when, in the presence of an independent person, the man and wife could discuss their affairs and be assisted by a magistrate who would have a great deal of experience in these matters. In that way it might be possible to bring the couple together again before a full application was heard and a decision made.
I confess that I have tried this method, and I may say that my efforts were attended with a good deal of success. If, however, such a preliminary hearing proved unsuccessful, the full application should ultimately be heard by other magistrates. I should like the Home Office and the Solicitor-General to consider this question and to see whether it is possible to include in the Bill something on the lines of the reconciliation machinery which I have suggested.
Despite that criticism, I join with other hon. Members in welcoming the Bill. It was necessary that we should have a consolidation Measure of this kind, and it is good to feel that these 534 matters are being brought within the compass of one Act of Parliament. That will assist in the administration of the courts. The provisions contained in Clause 1 will simplify the work of the courts. The Clause lays down what shall be the reasons for the granting of a separation order. I have always been of the opinion that the legislation regarding matrimonial courts was far too loose, and this will have the effect of tightening it up.
I consider that Clause 4 provides extra safeguards for children. It will assist in the work already being done under the provisions contained in the Children Act and other Measures designed for the safeguarding of children which are already on the Statute Book. Sometimes, as we know from experience, it is desirable that the children should not be with either their father or their mother.
I wish to say a word about Clause 6, which deals with interim orders. I am glad that it has been seen fit to include in this Measure a provision that there may be more interim orders by magistrates' courts, but I am wondering whether the period of three months is sufficient. We know that where cases have to come before the High Court long delays may occur. A period of more than three months may elapse before the case can be heard; for example, we must take into consideration the vacation time. Perhaps the Government ought to look at this limit of three months and consider whether it is possible to make interim orders for a period exceeding three months because of the possibility of delay. In some cases, three months would be a long time for a defendant to have an interim order placed upon him when ultimately no order would be made against him. But I think that the danger that the High Court may be so long in hearing the case is the greater.
There is also the question of payments, which has always been a controversial matter. I remember that when a Bill, which was supported by Mrs. Muriel Nichol, was introduced in 1949 and became the Married Women (Maintenance) Act, we pushed the amount of the payments up to £5 for a wife and 30s. for a child. At that time we discussed whether to increase the amount of £5. The previous figures were ridiculous in the light of what happened during the war and in relation to 535 incomes following the war years. Since that previous legislation the value of money has changed. Today we may well be legislating for many years to come, and I wonder whether an allowance of £7 10s. as a maximum is sufficient.
Many women who appear before these courts have been used to quite a high standard of living. Often their husbands are men with adequate incomes, and if a man has been "kicking over the traces" and makes himself liable to the provisions of Clause 1 of the Bill he may very well think, if he is well off, that £7 10s. a week is pretty cheap for getting rid of a wife he does not want. I am open to conviction, but I think that we might easily go to a figure of £10 and leave it to the discretion of the magistrates, as is at present the case. If the justices could go to an upper limit of £10, I am sure that in many cases that would be a valuable thing. When I think of the appetites of children between the ages of 11 and 16, I am concerned about whether 50s. is sufficient to keep a child, and there is also, of course, the question of education costs to consider.
The Bill provides for an independent person to take charge of a child in certain circumstances. Under the Children Act and other legislation, we have encountered difficulties regarding foster parents. Particularly in the case of working class people, it requires real love for a child who is not one of the family to keep it on an inadequate allowance. There is no danger nowadays of people taking in children just for the money; child farming has gone from our midst—I hope forever.
In those circumstances, is 50s. enough for that independent person to take over a child of tender years, bring it up to the age of 16, with all the responsibility of feeding and clothing it, and making some contribution to its education? I doubt whether the £7 10s. for the wife and the 50s. for the child is enough. I know that these are Committee points, and I apologise for raising them at this stage. However, I would like the Government to consider them before the Bill is considered in Committee.
Having made those minor criticisms, I say with great sincerity that this is a good Bill. It has been needed for a long time, and I wish it well in its pro- 536 gress. I thank the right hon. Gentleman the Joint Under-Secretary for the way in which he introduced it. I cannot claim legal knowledge such as is possessed by people like my right hon. and learned Friend the Member for Newport (Sir F. Soskice), but after a long experience as a lay justice, I hope that I may claim to have some real interest in this subject.
§ 5.22 p.m.
§ Mr. Raymond Gower (Barry)
If, after the remarks of the hon. Member for Salford, West (Mr. C. Royle), it is necessary to state an interest, I have to say that I, too, am connected with the legal profession. First, as a colleague representing yet another constituency in South Wales, I should like to congratulate my hon. Friend the Member for Denbigh (Mr. Morgan) on his maiden speech. I express to him my best wishes for future occasions of debate.
I should like to comment on the point raised by my hon. Friend the Member for Crosby (Mr. Page). I hope that my right hon. Friend will realise, as a result of some of the speeches, that there are a considerable number of hon. Members who feel very strongly about this particular matter. Whatever was said in another place, some of us think that this provision should be altered, and that we should subscribe to the idea that it is right in principle for a person alleged to have committed adultery to be allowed to defend himself and, moreover, to have the knowledge necessary for him to do so.
I have spoken to a number of solicitor colleagues and friends who do a lot of work in the magistrates' courts, and I find that they are quite united in thinking that there should be this alteration to the Bill. I am sure that my right hon. Friend has noted that this was said in another place, and that it is also the view of the Law Society. I cannot speak, of course, for the other branch of the profession, except those with whom I have come in contact, but I can say that most barristers to whom I have spoken about it seem to share this view.
Therefore, while I have noted the objections made and the countervailing reasons stated, I would point out to my right hon. Friend that, in his evidence before the Royal Commission, the president of the Magistrates' Clerks' Association said that he saw no difficulty in such 537 a notice being served. It was suggested that service should be by registered post to the last known address, but I think that there should also be some advertisement in the Press in the area in which the person has lived; as there is always a very grave danger that the person may have changed his address, and someone else may have signed the receipt for the registered letter, as is sometimes done. I myself have sometimes had people accept registered letters and sign for them on my behalf.
There is that danger, and there is the danger of the signature being illegible. I certainly think that notice should be sent by registered post in the form suggested by the president of the Magistrates' Clerks' Association, and I hope that we shall have some assurance on this very important point before this Bill goes through.
As the hon. Member for Pontypool (Mr. Abse) said, this Bill classifies with admirable clarity the reasons for which a court may make a matrimonial order. We now have, as it were, a clear charter for magistrates. As has also been pointed out, this is associated with a very considerable extension of the facilities of legal aid. In other words, separation at the order of the matrimonial court will be easier, more practicable, than ever before.
I suppose that this reflects changing social opinions about separation and, indeed, about divorce, but I have recently discovered, as other hon. Members probably have, a good deal of anxiety in the minds of people lest this process may not have gone too far. They wonder whether the very easiness of separation and divorce may not sometimes mean that people become separated or divorced who, had they thought more, or had there been some of the former obstacles in the way, might have been reconciled and enabled ultimately to lead a fairly happy matrimonial life.
That being so, there is point in the suggestion of the hon. Member for Pontypool, that by means of this Bill— amended, if necessary—or by some other Bill, there should be introduced much more effective machinery and a better-equipped organisation to deal with reconciliation. As I say, this Measure clearly states the reasons for which 538 separation can be ordered by the court, and the extension of legal aid makes it available, as it were, to all the population. There is, therefore, a very strong case for a more effective and better-equipped organisation, with much better advice—psychological, medical and so on—available to it to help it in its work. Like the hon. Member for Pontypool, I think that the existing organisation is quite inadequate, and I share his view that the duties of probation officers are far too extensive.
The hon. Member for Salford, West, though not a member of the legal profession, has very extensive knowledge of magistrates' courts, and he commented on the amount of £7 10s. for the wife. It is true that such an amount can be stated in this Bill—other amounts have been stated in former legislation—but I suggest to my right hon. Friend that it may now be opportune for us not to state a definite amount.
Circumstances are changing, earnings are increasing, people are moving into different kinds of jobs, standards of life are improving rapidly, and it may well be that if we insert this figure now we may find in a very short time that it is quite inadequate. I think, therefore, that there may be a strong case for deleting this reference to an amount and for substituting a Clause which will give the Minister the power to come forward from time to time with an Order for a different amount to be approved by the House. I think that that might well be the most suitable machinery in the conditions of today, rather than have a fixed amount as was suitable in the conditions of yesterday and yesteryear.
§ 5.30 p.m.
§ Mr. Ede (South Shields)
I intend to intervene in the debate for only a very short time. In the first place, I should like to congratulate the hon. Member for Denbigh (Mr. Morgan) on his maiden speech and also for restoring an ancient tradition of the House, in that, after having spoken, he has remained to hear what other hon. Members have to say on the Bill. I only hope that his example will be infectious, because the astonishing thing is that in the House these days very few Members, having managed to get something off their chest, think it worth while to remain and see what effect it has had on speakers who follow them.
539 I wish to speak as a former Home Secretary and to congratulate the right hon. Gentleman the Joint Undersecretary of State on the fact that many Measures are now being consolidated in the Bill. If one looks at the "Table of Statutes referred to in this Act", on the back of the Bill, one sees how many of them are quite modern. Only the first three date back to a period before the Second World War. In recent years there have been a number of Acts dealing with this matter, each of them making some slight alteration in the law. More than one of them is generally required to be referred to if one is asked to deal with any matter arising in this connection.
It is a good thing that this consolidation has taken place. There are one or two other similar matters dealing with Home Office legislation which, I think, could in the next year or two receive similar treatment to the great advantage of the people who occasionally find themselves interested in such matters.
Having said that, may I just say that I share the feeling of the hon. Member for Crosby (Mr. Page) concerning the case of a person who is accused of adultery under the Bill, although not a party to the original proceedings. I do not think that anyone, no matter how high he may be in the law, should ever assume that everything always goes correctly in the courts unless there is an express provision that an appropriate course of action should be followed. Mistakes are make, not wilfully but sometimes by inadvertence or sometimes when the matter has not been brought to the notice of one of the parties in the court.
As one with a very long career as a magistrate, happily now terminated in that connection, I always found how easy it was on occasion for learned counsel to suggest that someone who was not before the court was really the cause of all the trouble. One found the feeling mounting in the minds of the magistrates to the effect that "If we only had him here we would then do justice which we cannot do" because this very convenient "stooge", sometimes existing only in the minds of learned counsel, had for some reason or other not been brought into the court at that stage.
540 I want to join with my hon. Friend the Member for Pontypool (Mr. Abse) in what he said about the work of probation officers. I am quite certain that they are overworked. They are certainly underpaid, and they do a very good amount of good. If I may say so to my hon. Friend the Member for Salford, West (Mr. C. Royle), I would sooner have a probation officer as the person to attempt to effect a reconciliation than a member of the bench. I personally do not like to see members of the bench unnecessarily intervening in too intimate a way in matters which will ultimately have to be decided by their colleagues.
I welcome the fact that the hon. Gentleman himself said that, because if a magistrate undertakes the task of reconciliation, he ought not then to adjudicate. Having watched efforts in this connection, may I say that in most cases if a magistrate was successful in bringing about a reconciliation it was a good thing, for that meant that the matter would not then come before the courts for adjudication?
This is a Measure that we should all welcome, and I hope that in its working out it will enable some considerable improvement to be made in the administration of the law in this wide range of very human cases with which the Bill deals.
§ 5.35 p.m.
§ Sir Frank Soskice (Newport)
In winding up the debate on this very useful Bill, I address myself, in the first place, to the extremely pleasurable task of saying to another member of my profession how warmly I congratulate him on the very charming way in which he introduced himself to his fellow Members in the House.
The maiden speech of the hon. Member for Denbigh (Mr. Morgan), I think everyone present will agree, possessed all those qualities that we look for in a maiden speech. It was happily phrased, it was witty, it was light and, at the same time, extremely well informed. It undoubtedly enriched the debate. I say to the hon. Gentleman in all sincerity, and I know that I speak for all hon. Members in the House, that we look forward with avidity to hearing him not only in a non-controversial atmosphere, in which he found himself today, but 541 plunged in the heat of debate. I am sure that we; shall derive great advantage as well as pleasure from hearing him on future occasions.
I say at once that I join with those who welcome the Bill. It would be churlish of me not also to join, as I do readily, in those expressions of gratitude both to those who have prepared the Bill and whose learning has contributed to its birth and also to the patient, long-suffering labours of members of the bench and their officers who, for many years, have throughout the country made this sort of Bill a reality in terms of human life.
I suppose that if we picked out from our legislation those Measures which intimately affect large numbers of ordinary people we would pick out, perhaps, the Rent Restriction Acts, the old Workmen's Compensation Acts and would undoubtedly join with those Measures the married women's Summary Jurisdiction Acts which are being consolidated and improved in this Measure.
I think that we would all agree that the Bill, non-controversial as it is, is eminently suitable for minute examination in Committee. Many valuable points have been adumbrated and explored in this debate and it would not be assisting the House if I went over the ground that has been so very well trodden already. However, I wish to emphasise one or two points because they seem to me to be of particular importance.
The point that I would select as being in my estimation the most important is the one which relates to persons whose names are mentioned as being involved in some act of adultery. The hon. Member for Crosby (Mr. Page), my right hon. Friend the Member for South Shields (Mr. Ede) and the hon. Member for Barry (Mr. Gower) spoke of it. I believe that it is a matter which really causes very wide concern. I think, also, that the reasons advanced against giving the impugned person the right of intervention also cause concern.
Some years ago I remember defending before a jury a most respectable young man—as the jury's verdict pronounced— who was the victim of a charge of an act of impropriety at the instance of an obviously neurotic young woman. The hon. Member for Crosby also told the 542 House of a doctor who was the victim of an allegation by a neurotic woman. It is shocking that perfectly respectable people in this country may find their names mentioned and impugned as having been involved in an act of adultery with a married man or woman and learn of it only suddenly for the first time when they pick up their morning newspapers.
§ Mr. Abse
Is it not correct that those proceedings would be in private? The essential distinction is that in the divorce court they would be public and known while in the matrimonial court they would not be known. Would not my right hon. and learned Friend recognise that in giving service of that notice on a married man we might be disrupting two families? That comes out of my experience.
§ Sir F. Soskice
I must confess that my approach is almost diametrically opposite to that of my hon. Friend. If we want to disrupt a family we would do so by allowing it to be said that one spouse had been guilty and depriving that spouse of an opportunity of rebutting the charge. I do not mind whether it is publicised or not publicised, but if it is found as a fact in a court that a person living happily with his wife or her husband has committed adultery with a third person we are putting that little married unit in jeopardy. The husband or wife may be forgiving, but, on the other hand, they may not be. I think it very regrettable that we should contemplate with equanimity that perfectly respectable people might find themselves victims, not of an accusation, but of a proved fact in court in proceedings which may or may not have been publicised—they may have been widely publicised—and not be given an opportunity of intervening.
In another place, the Lord Chancellor said that it does not happen, but it may happen and the hon. Member for Crosby gave a case in which it nearly did happen. It should be one of our major endeavours, in framing legislation dealing with proceedings in the courts, to try to avoid cases of grave injustice. I must confess that if an innocent respectable person is the victim of some fantasy at the instance of a neurotic man or woman, and is unjustly accused, and then convicted of an act which is liable 543 to break up another home, I think that that is a case of grave injustice. Speaking for myself, I would very much hope that the Solicitor-General, when he replies, will say that this is a matter which he will look into seriously again.
That it would complicate proceedings to give such a person a chance of speaking for himself does not seem an adequate answer. That this kind of thing does not often happen does not seem to be an adequate answer. Why bother to have proceedings in court at all if, generally speaking, people are not the victims of injustice? Those proceedings are to prevent injustice happening. I hope that the hon. and learned Gentleman will see the force of what has been said and, when he realises the feeling behind it, that he will have another look at the matter. It is a subject we can discuss much more fully in Committee. I feel sure that it will form the subject of some kind of Amendment in order to introduce it into the debate in Committee.
Other points I should not desire to traverse at length. I have some uncertainty about how Clause 7 (1, b), which deals with the question of cohabitation putting an end to a matrimonial order or an interim order, will leave matters. If I understand correctly the reasoning which has gone behind the framing of the language of this provision, a distinction is drawn between residing in the same house and cohabitating in the full sense of living together as man and wife. That sometimes seems a rather dangerous distinction to draw and sometimes it leads to an unreal result. When people of very modest means are living in the same house, and perhaps finding it difficult to separate in the physical sense and reside in different parts of the same house, with very limited accommodation, it is very difficult for the courts to decide whether from the wording used they ought or ought not to regard the matrimonial order or the interim order as having been brought to an end.
If cohabitation in the fullest sense is to be the test, it will not be easy to determine as from what time the three months has run, when the period is to begin and when it is to end. I think that that is a Clause which wants more careful study. I know that it has re- 544 ceived careful study and perhaps in throwing out these ideas I am treading ground which has already been fully trodden, but I should like this matter to be looked at again.
Although I can understand the argument that it is unfortunate that there should be diversity in the application of the law in the High Court and in the magistrates' courts, we should perhaps reconsider the rather anomalous situation which exists in regard to condonation. Clause 8 (2) preserves the existing law which makes a difference between condonation by a husband and condonation by a wife. One single act of sexual intercourse produces the inevitable result that the husband has condoned adultery, whereas it does not have that result in the case of the wife. That, I should have thought, was a distinction which is difficult to justify if we can avoid it. I quite agree that perhaps it is an even less justifiable distinction to have a different law as to condonation in the High Court and before courts of summary jurisdiction. However, I should like this matter to be looked at again.
The speech of the hon. Member for Denbigh was followed by a speech full of feeling by my hon. Friend the Member for Pontypool. I agree that it is somewhat depressing if we concentrate too much upon the machinery for disruption without seeking to solace ourselves by some corresponding machinery for reconciliation. He made an appeal to which I hope the Solicitor-General will listen. In particular, he pointed to the practical issue of the great burden which is being placed on the shoulders of probation officers and child welfare officers at present. He appealed, and I hope that his appeal will not go unheard, for some consideration in view of the extra burden now to be placed on their shoulders by this Bill. This type of legislation will not work at all unless it has willing hands and willing minds to convert it later into reality in terms of human life.
That seemed to me a valuable speech. Whether a psychiatrist, sitting in a large building with a large staff, would be the most appropriate conciliator, or whether a probation officer or member of the bench is a more suitable person for that purpose is perhaps open to controversy. Whatever views one may have, I think we all recognise—perhaps my hon. Friend 545 the Member for Salford, West (Mr. Royle) will agree—that the probation officer, more, even, than the member of the bench, is in a position to do extremely good work in this regard. I hope that officer's efforts will be recognised as possessing a very real value in the community.
I again congratulate the Government on consolidating the law, which at present is to be found in diverse statutes separated over a period of years. The analysis made by the Committee and the debates in another place have greatly added to our knowledge of this subject. We in this House owe a special debt of gratitude to the members of the Committee for the painstaking labours they have bestowed on this problem. I hope that we shall give the Bill a Second Reading.
§ 5.50 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
I am very grateful to the right hon. and learned Member for Newport (Sir F. Soskice) and to all hon. Members who have spoken in this debate for the very kind welcome that they have given to this Bill. As the hon. Member for Salford. West (Mr. C. Royle) said, this is a field where consolidation is particularly necessary, and, indeed, as my hon. Friend the Member for Denbigh (Mr. Morgan) pointed out, this is a field where a lay magistracy has to administer the law, and where it is essential that it should be as simple and accessible as possible. We have the high authority of the right hon. Member for South Shields (Mr. Ede), as a former Home Secretary, to reinforce that view.
The hon. Member for Salford, West not only said that this was a good Bill, but, in words with which we are now familiar in a slightly different context, actually said that he welcomed Clause 4. At any rate, I am grateful for the tributes that have been paid to the Bill, and to the Davies Committee which did so much work on the subject.
§ Mr. C. Royle
Perhaps the hon. and learned Gentleman will permit me to say that we on this side of the House are very glad that Clause 4 stands part.
§ The Solicitor-General
I must say that that is a controversy into which it would be very improper for me to enter. I should like to pay my tribute to my hon. and learned Friend the Member for 546 Epsom (Mr. Rawlinson) for his part in the work of the Davies Committee.
Before I come to the main points that were raised on the Bill, I should like to associate myself with the warm and felicitous tributes that were paid to the maiden speech of my hon. Friend the Member for Denbigh. It seemed to me, as it obviously seemed to every hon. Member who followed him, that it was an outstanding maiden speech. My hon. Friend not only obviously commended himself to the House by his manner of address, but made a real contribution to the debate which was taken up by subsequent speakers. I should also like to say how grateful I am for all the constructive criticism that has been made in the course of the debate. If I do not reply to all the points, it will not be because we shall not consider them before the Committee stage with every care.
Before I come to the actual terms of the Bill, I should like to say a word or two about the approach of the hon. Member for Pontypool (Mr. Abse), because I think it is one that commended itself to the whole House. He used the striking phrase that our duty was to save the children from the disaster of a broken marriage; and I think that many people these days are concerned that in our modern society, with its higher standard of living and all our welfare services, marriage, which is so fundamental to human happiness, should so frequently end in disaster and unhappi-ness for the parties. Therefore, I think that his plea for reconciliation is one to which we found ourselves responsive.
I feel that to try to set up an elaborate machinery for reconciliation is possibly the wrong approach. I can say that all the more strongly because that was my own approach earlier, and I put to the Royal Commission a very elaborate machinery to be built into our matrimonial law. On consideration, and in the light of experience, I am quite sure that it was the wrong approach, and I am very glad to see that the right hon. Member for South Shields himself feels so.
What the Royal Commission said in recommendation 26 was this:The State should give every encouragement to the existing agencies engaged in matrimonial conciliation as well as to other agencies which may be approved in the 547 future. It should not define any formal pattern of conciliation agencies or set up an official conciliation service.That was after examining the formal conciliation patterns which we get in many Continental and Transatlantic codes. The Royal Commission went on to say, in recommendation 27:Exchequer grants to voluntary agencies towards the cost of training and central administrative expenditure should continue to be made.In fact, as the House knows, the Government accepted that recommendation, and increased financial aid has been given, to be allocated between the four main marriage guidance societies.
The Royal Commission also said, in recommendation 30:As an aid to the promotion of reconciliation, the provisions of the Legal Aid and Advice Act, 1949, relating to legal advice should now be brought into operation.That again has been done, and I hope that we shall see its results in order that solicitors will be brought in at a sufficiently early stage to be able to give advice with a view to reconciliation in the way in which family solicitors have been accustomed to do so much in the past, and not merely at a stage where litigation is impending and inevitable.
The hon. Gentleman mentioned, as indeed did several hon. Members, including the right hon. and learned Member for Newport, the burden on the probation officers. I personally found myself in agreement with the right hon. Member for South Shields that a probation officer is better than a member of the bench as a reconciliation agency, and I am inclined to think, with the right hon. and learned Gentleman, that it would be difficult to find a better reconciliation agency than the officers of our present probation service. I readily recognise the great burdens that we are placing on them, which they so gladly assume, and the hon. Member for Salford, West, who is still a deputy chairman of the Magistrates' Association, would be the first to recognise the debts of benches to the probation service.
§ Mr. C. Royle
The hon. and learned Gentleman is perfectly right about the probation service, but could we ask him at this moment what exactly has happened to the Departmental Committee?
§ The Solicitor-General
The hon. Gentleman took the words out of my mouth. I was going to point out that the Morrison Committee is still sitting, and has under review all the matters to which the hon. Member for Pontypool drew attention—training, pay, conditions of service and recruitment. I cannot say at the moment when we shall get its Report. The Committee has been sitting a fair time, and, although similar Committees have taken two years to report, I hope that we shall get something from it in the near future.
§ Mr. Gower
I am sorry to interrupt my hon. and learned Friend. He has just said that he thinks that this duty can be best carried out by the probation officers, and I agree with him. He also indicated that this work should be undertaken by solicitors. Does he think that a solicitor's training is such that he is equipped to do this sort of work? Surely the training of a solicitor is not the type of training which would qualify him for this task of reconciliation, although there are some family solicitors with particular experience of this matter.
§ The Solicitor-General
Personally, I venture to differ from my hon. Friend, and to agree with the Royal Commission that the bringing into effect of the legal advice scheme will be an aid to the promotion of reconciliation. By and large, I think that solicitors feel a duty to explore any possibility of reconciliation, particularly when there are children, and I personally do not agree that their training militates against that.
I have one other comment to make in reply to the hon. Member for Pontypool. We have valuable child guidance clinics in this country and my impression is that magistrates use their power of adjournment to refer difficult cases involving children to child guidance clinics. At any rate, while one must obviously constantly bear in mind the necessity to do all one can to prevent the breakdown of marriages, nevertheless, one must face the fact that marriages do break down. It is, therefore, our duty to improve the machinery whereby the differences between spouses can be ventilated and adjudicated upon, and it is because the Bill effects an improvement that it has been so generally welcomed.
The hon. Member for Islington, East (Mr. Fletcher) asked me three questions, 549 the firs: relating to Clause 2 (1, b), the phrase being,such weekly sums not exceeding seven pounds ten shillings as the court considers reasonable in all the circumstances of the caseas a provision for the wife. In its draft, the Davies Committee had the phrasehaving regard to their respective means".That was amended in the House of Lords to the phrase which now appears in the Bill, with the express intention of enabling the court to take account of earning capacity. Obviously, the earning capacity of the spouses is one of the circumstances to which the court must direct its mind.
The hon. Member also drew attention to the provision in Clause 7 whereby a wife whose husband has failed to maintain her has to leave before she can enforce a matrimonial order. The hon. Member said that that imposed a hard-shin and that there were accommodation difficulties and that it might not be possible for the wife to find other accommodation.
I think that he recognised that the Bill marks an advance on the present law. At present, an order cannot be enforced so long as the parties are residing together, and that has been held to mean living together under the same roof. Clearly, in the sort of case which the hon. Member envisaged, it might not be possible for a wife to put herself under a different roof. Only the division of the living accommodation, so as to make it, in effect, accommodation for two families, might be possible. As a result, to meet that case, the Bill uses the words "ceased to cohabit", meaning to live together on terms of husband and wife.
It is quite true that the Royal Commission recommended by a large majority that where an order was made on the ground of wilful neglect to provide reasonable maintenance, the order should be enforceable even if the spouses were living together in circumstances amounting to full cohabitation. I have been very attracted by that recommendation in the past, even before it was made by the Royal Commission, because it is arguable, and it has been argued, that to render an order enforceable only on the separation of the spouses is to put a premium on the break-up of matrimonial cohabitation.
550 On the other hand, one must attach considerable weight to the objections. The proposal in effect gives the magistrates' court power to fix the housekeeping allowance, to say what is a reasonable provision for a wife while she is still living under the same roof as her husband, possibly still on terms of complete cohabitation. Is that really possible? Obviously, it is possible. We discussed it in principle a year or two ago when the right hon Lady the Member for Warrington (Dr. Summerskill) introduced a Measure shortly before the Royal Commission sat, but on the whole the proposal was rejected by hon. Members on both sides of the House.
§ Mr. Fletcher
There would be no such power in the magistrates' court unless there had been a matrimonial offence.
§ The Solicitor-General
Yes, but the matrimonial offence involved is the wilful neglect to provide reasonable maintenance, and that at once raises the question of what is reasonable maintenance for a woman who is living with her husband. This is obviously a matter which we can and should discuss further in Committee, but I think that the Committee, and later the House, will have to weigh very carefully what a serious invasion of domestic life such a proposal would involve.
The hon. Member said that the wife could enforce a maintenance order made by the High Court while still remaining in cohabitation. That is true formally, but, as the hon. Gentleman with his wide experience knows, in practice the High Court does not make an order in such circumstances, and on resumption of cohabitation would vary or terminate the order.
The hon. Gentleman, lastly, asked me about Clause 2 (1, e)—maintenance in the case of committal to a local authority and the limits of the order. That was a matter also raised by my hon. Friend the Member for Barry (Mr. Gower) and the hon. Member for Salford, West. The hon. Member for Salford, West thought that many husbands would say that £7 10s. was cheap to get rid of a wife; but, as he went on to make his further suggestion, I could not help thinking that, regrettably, there were some husbands who would say that £10 was cheap to get rid of a wife. It 551 does not seem to be possible in a court of summary jurisdiction to leave the amount at large. What the proper amount should be is a matter for argument, and no doubt we shall have an opportunity of considering the matter further.
My hon. Friend the Member for Denbigh, to whose maiden speech I have paid tribute, asked a specific question about small maintenance payments. As he indicated, that is a matter for the Finance Bill. However, I can say that, when preparing his Finance Bill, my right hon. Friend the Chancellor of the Exchequer will obviously carefully consider any repercussions which this Bill may have on the provisions of previous Finance Acts relating to small maintenance orders.
At the beginning of his speech, the hon. Member for Islington, East asked about the extension of legal aid to matrimonial proceedings in courts of summary jurisdiction. I am very glad to be able to repeat to the House what my noble and learned Friend the Lord Chancellor said in the House of Lords on 16th December in introducing the Bill. He said that it was his intention in the next financial year to extend the provisions of the Legal Aid and Advice Act, 1949, to matrimonial and affiliation proceedings in magistrates' courts and quarter sessions. I am sure that the whole House will welcome the increased facilities given to litigants in this important jurisdiction to ensure that their cases are properly presented.
My hon. Friend the Member for Crosby (Mr. Page) asked about Clause 4 (6), which relates to the hearing of a parent by the courts. He asked about the machinery. As the Clause indicates, the machinery will be prescribed by rules made by my noble and learned Friend. He also asked, as did the hon. Member for Salford, West, about the relationship between Clause 4 (6) and Clause 10. Their point relates to the right of a parent who is not a party to the proceedings—a parent of a child now called a child of the family—to appear. The answer is that there is the same right under both Glauses for such a parent to attend the proceedings. The proviso to Clause 4 (6, b) appears only because it is not practicable to give notice to the 552 father of the illegitimate child unless, by and large, that person has been adjudged by a court to be the father of that child. For purely practical reasons we have that distinction.
§ Mr. Ede
I have dealt with a case in which the father of the illegitimate child had entered into an agreement before the child was born to make a certain payment. As a matter of fact he never made a payment, but he had admitted his paternity and had recognised his liability by a deed which had never been operative. That was a very important matter once when the mother of the child, having married another man, wanted, with her husband, to adopt the child as a member of the family.
There are cases in which no adjudication has been made by the court but in which sometimes an agreement has been made in order to avoid the publicity and other discomforts which attach to a visit to the courts. I hope that even the father of an illegitimate child who in some way or another has acknowledged his responsibilities, even if he has not discharged them very well, will not lose the whole of what might have been his rights if he had consented to a merely formal adjudication by a magistrates' court.
§ The Solicitor-General
The right hon. Gentleman is quite right. These circumstances arise. As I have said, there is machinery for such a person to intervene and to vindicate his rights. What the Bill does even further, as we shall investigate when we reach Committee, is to ensure that the courts take into account the liability of the putative father in the circumstances which the right hon. Gentleman envisaged. In taking them into account they would also have to take into account how far he had honoured his obligations.
I was about to turn, finally, to a question which has obviously disturbed a number of right hon. and hon. Members—the question of the service of notice of the proceedings on a third party who is named as an adulterer. That point was raised by my hon. Friends the Members for Crosby and Barry, by the right hon. Member for South Shields and by the right hon. and learned Member for Newport.
The matter was very carefully considered by the Davies Committee, who 553 referred to it in paragraph 9. I imagine that none of us would dispute the general principle, which is quite unexceptionable, that where an allegation is made which may involve the honour of a third party, notice should obviously be given to him or her. It is only when one considers the practical difficulties that a very different complexion is put on the matter.
The right hon. and learned Member said that adultery may be found as a fact by the courts against the paramour. With very great respect to him, that is not correct. The magistrates' courts, unlike the High Court, do not make any findings against the third party. As the hon. Member for Pontypool pointed out in addition, the proceedings are domestic proceedings and are heard in private. There is the danger of a break up of the second marriage. That is inherent in the High Court proceedings, but the High Court proceedings are heard in any event in public, there is publicity and there is an express finding which implicates a third party.
Secondly, it seems to me that there is less chance in a magistrates' court that an unsubstantiated allegation of adultery will be accepted uncontested by one of the parties to the proceedings. In divorce proceedings both parties may be anxious to secure their freedom. In the magistrates' court those against whom allegations are made will have every incentive to contest them and none at all to let them pass. That seems to me to be a fundamental difference.
§ Mr. Ede
The proceedings in a magistrates' court may be in private but it by no means follows that there will not be whispers as to what has been happening, and that is far more damaging than a statement which is made openly, appears in the Press and can be rebutted. I know that efforts are made to preserve secrecy, but in quarrels between husbands and wives, and when they are trying afterwards to justify to their friends the fact that a quarrel has 554 arisen, it is astonishing what secrets, which may be facts and may not be facts, are revealed.
§ The Solicitor-General
Nevertheless, it seems to me to remain true that the spouse against whom the allegations are made in the magistrates' court has every incentive to contest the allegations and none to let them pass, and, in the majority of cases in which an unsubstantiated allegation of adultery is made, will call the paramour as his or her witness. As for the point which my hon. Friend the Member for Crosby made about collusive proceedings, I am bound to say that my experience and my opinion do not coincide with his. I think that collusion in the magistrates' courts is very rare indeed; and that was so much the view of the Davies Committee, as the House will have noticed, that it recommended—and the Bill adopts this —that the bar of collusion should be dropped in magistrates' courts, because it is virtually irrelevant as a bar.
I was about to point out, in addition to those considerations, that the Davies Committee recognised the practical and procedural difficulties which this would throw on the magistrates' courts. I am bound to point out that Lord Merriman, with his unique authority in these matters, said in another place that, after consulting all the experienced judges who sit with him now or who have sat with him, neither he nor they knew of any single instance in which there had been a grievance owing to the non-citation of the third party in the courts of summary jurisdiction.
Although examples have been given where there might have been a miscarriage of justice, in fact in neither of those cases was there such a miscarriage. Obviously this is a matter which Members will want to examine further in Committee. As to all these suggestions, we have not closed our minds. We will certainly examine the arguments that have been put forward and will listen to the arguments advanced in Committee, but I do not think it would be right, unexceptionable as the general principle is, to minimise the practical difficulties that obtain.
Having said that, it only remains for me to thank once again right hon. and hon. Gentlemen for the welcome that they have given to this Bill and for the 555 very helpful and practical suggestions that have been put forward and to say that we shall consider them carefully.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).