§ 10.30 a.m.
That if the Proceedings on the Maintenance Orders (Reciprocal Enforcement) Bill [Lords] are not completed at this day's Sitting, the Committee do meet on Wednesday next at half-past Ten o'clock.—[Mr. Carlisle.]
§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle):
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Maintenance Orders (Reciprocal Enforcement) Bill [Lords] ought to be read a Second time.The Bill gives the impression of being highly technical and complicated, but its purpose is, I suggest, simple, straightforward and important. It is designed to 566 strengthen a single aspect of the machinery for enforcing maintenance orders, and thus to relieve some of the hardship which we all know to be inflicted on wives, mothers and children by maintenance defaulters. It provides means whereby dependants in this country of a person who has gone abroad may enforce a maintenance order against that individual, and means whereby such an order can be enforced in favour of dependants living abroad should the person upon whom they are dependent come to or be in this country.
I believe that the principle of the Bill will be generally welcomed as assisting in the enforcement of maintenance orders. We are all aware of the substantial difficulties which arise in maintenance 567 enforcement. The problem is a continuing one, and it does not admit of a simple solution. In the end, it is often a question of trying to extract money from a man who is either determined not to pay or has not the means to do so.
The Bill is limited to the position of the deserted woman whose partner has gone overseas, a problem which is becoming ever more important with the growing ease of travel today. The existing law regarding the recovery of maintenance from people overseas is embodied in an Act which is just over 50 years old, the Maintenance Orders (Facilities for Enforcement) Act, 1920. That Act enables maintenance orders to be enforced on a reciprocal basis throughout the Commonwealth. Within its limited scope, it has been reasonably effective. During 1970, for example, under the provisions of the Act, we received 129 orders from other parts of the Commonwealth for enforcement in our courts, and we sent out just over 300 orders.
The Act has, however, a number of patent and serious defects. First, it does not apply to Scotland. Second, it does not cover affiliation orders. Third, and most important of all, it is limited to countries and territories within the Commonwealth, so that it does not enable maintenance to be recovered if the defaulter goes to a country outside the Commonwealth, other than South Africa, which is covered by a provision in the South Africa Act. The fourth defect of the Act is that it gives only limited powers for revocation or variation of an order once made.
The Bill remedies those defects, and at the same time modernises the procedural machinery for enforcing orders within the Commonwealth. It has two main Parts. Part I deals with the reciprocal enforcement of maintenance orders between the United Kingdom and other reciprocating countries, and Part II is intended to enable the United Kingdom to sign a United Nations Convention on the enforcement of maintenance.
Since the Bill is somewhat complex from a legal point of view, I do not think that it would be helpful to the Committee if I attempted to explain each Clause. I think that it would be more helpful if I were to explain as briefly as 568 possible how the two different systems for the recovery of maintenance which the Bill incorporates will work, pointing out their merits as against the present system.
Part I replaces in a modern form the existing 1920 Act and makes fresh provision for the enforcement of maintenance orders as between people in the United Kingdom and other parts of the Commonwealth. First, it extends the existing provisions to cover affiliation orders. That is done by including affiliation orders in the interpretation Clause. Second, it extends the provisions to Scotland. Third, it enables the United Kingdom to make reciprocal arrangements with foreign as well as Commonwealth countries.
The procedure under Part I is based, as was the 1920 Act, upon the principle that all the reciprocating countries have broadly similar maintenance and reciprocal enforcement legislation. Maintenance under Part I will, therefore, be awarded in accordance with the law of the country in which the applicant is residing. At present, 80 countries or territories in the Commonwealth are reciprocating countries under the 1920 Act. The Bill provides, by Order under Clause 1, for countries to become reciprocating countries where they have a similar type of maintenance and enforcement law. It is hoped that all the present 80 countries will become reciprocating countries under Clause 1, together with certain other countries which have a system similar to our own.
The machinery for the enforcement of maintenance orders under Part I is designed to cover two situations: first, where the maintenance order is already in existence before the person against whom it has been obtained leaves the country in which the order was made; second, where the person is already outside the jurisdiction of the court before any order has been made against him. In other words—to take the position where the claimant is in this country—in the first situation the order is made on a claim in one of our magistrates' courts, after which the husband moves to one of the reciprocating countries; and in the second, for example, the husband deserts his wife and goes to live in one of the reciprocating countries, and the 569 wife subsequently wishes to apply for a maintenance order.
In the first situation, a valid order is in existence in this country before the husband leaves. In these circumstances, on the application of the claimant, the existing order is sent to the reciprocating country and can then be enforced by the methods available for enforcement under the law of that country. Conversely, if the order were made in another part of the Commonwealth and then the man against whom it had been made came to live in England, that order could be sent to this country and could be enforced by similar means, such as attachment of earnings or imprisonment, as if the order had originally been made in this country.
Clause 2 deals with orders going out of the United Kingdom; Clause 6 deals with orders coming in. Orders are enforced in this country in accordance with the law of the part of the United Kingdom in which the respondent is, which means that in England, Wales and Northern Ireland the court collecting officer is responsible for the enforcement, whereas in Scotland, because there is no court collecting officer system, a solicitor would be appointed to enforce the order.
In the second situation to which I referred, the respondent had left the country before any order had been made. In these circumstances, the applicant wife may apply for a maintenance order under the maintenance law of her country, on an ex parte basis, in the absence of the man against whom the claim is being made. The court then has to decide, in accordance with the law of its own country, whether the wife has made out a prima facie case. If it is satisfied that there is a prima facie case, the court can make a maintenance order, but in this case it is merely a provisional order, that is, an order which does not take effect unless it is confirmed in the court of the country in which the man is then residing.
For the purpose of enforcement, the court in the applicant's country sends particulars of the provisional order to the country where the man is residing, together with particulars of the evidence given in support of the claim, and a statement of the grounds on which, had the respondent still be residing in this country, he would under our law have been able to defend it. Then, in that country's 570 court the claimant's evidence is put to the respondent. He then has the opportunity to deny or rebut it in that court, but it must be done in accordance with the provisions of the law which applies in the complainant's country.
Having heard the evidence given by the respondent, the overseas court may either confirm the order, send it back for further evidence, together with any evidence it has received, or refuse to confirm it on the basis that it is not satisfied that the order is valid.
This procedure, which may sound slightly complicated, has acted effectively under the 1920 Act and gives an opportunity for both sides to have their cases put, even if they are put individually.
Under the Bill, the power to make provisional orders is given to the magistrate by Clause 3, and in Scotland to the sheriff court by Clause 4. The power to confirm provisional orders is given to those courts in Clause 7. Once an order has been confirmed and registered in a United Kingdom court, it will be enforced in the same way as any other maintenance order would have been. Equally once a provisional order made by a court in this country is confirmed and registered in the court of a reciprocating country, it will be enforced as if it were a valid order made in the courts of that country.
I have dealt with the three main defects of the 1920 Act—not applying to Scotland, not applying to affiliation orders, and being limited only to Commonwealth countries. The final defect was that under the 1920 Act there were very limited powers to vary orders to take account of a change in the financial circumstances of a respondent or an applicant. The Bill gives the court full powers to vary or revoke orders to which the Bill applies, with safeguards to ensure that the interests of the party overseas are protected. To take the example of the wife living in this country with the children, the husband having gone abroad, she can apply to the courts of this country to vary the order by, say, increasing the amount of the payment on the rounds that she has evidence that her husband's financial position has changed, although he is now in another country. On that evidence, the court could make a provisional variation order, which could then be confirmed in the 571 courts of the country in which the man is living; but he would have the right to put his point of view before that order was confirmed. Equally, if the husband is living in this country and an order has been obtained against him in another country's courts, and he claims that his financial situation is reduced, he can apply to the courts in this country for a reduction and then a provisional order to that effect may be made.
Part II deals with the United Nations Convention on the Recovery Abroad of Maintenance, 1956. The purpose is to enable this country to ratify that Convention. It is a multilateral Convention. At the moment, 36 countries are signatories to it, and it is designed to facilitate, as is obvious from its name, the recovery of maintenance when the maintenance laws of the contracting States are substantially different from one another. Part I, on the other hand, is limited to cases where we are satisfied that the reciprocating country's laws are substantially the same as ours. All the European Economic Community countries, with the exception of Luxembourg, are at the moment signatories to the Convention.
The procedure under Part II is the exact reverse of that under Part I, in that under Part I the law is based on the law applying in the claimant's country. Under Part II, the law is based on the application of the law in the country in which the man is living at the time when the order is made. Hence, the claimant's country merely transmits the claim for maintenance, and there is no procedure under the Convention for transmitting for enforcement an existing order of the court. A claimant for maintenance who is in the United Kingdom will approach an official of a local magistrates' court, or, in Scotland, the sheriff clerk, for assistance in sending the claim to the other country. The transmitting agency for the purpose of the claim will be the Secretary of State for the Home Department, who will also be the receiving agency for any claims coming in from abroad.
The claim will be in such a form as enable it to be received and settled by the agency in that country, and it will, therefore, have to comply with the requirements of that country's laws. All 572 countries which are parties to the Convention are required to submit to the Secretary-General of the United Nations a statement of the requirements of their law for settling maintenance claims. Here is an illustration of what will happen in practice. The wife is in this country, and the husband is living in a country which is a signatory to the United Nations Convention but is not a reciprocating country under Part I of the Bill, one of the European countries for example. The wife would have to submit through the transmitting agency, namely the Secretary of State for the Home Department, such statements as would comply with the law of the country in which it was sought to obtain an order.
On the basis of the statements made to the Secretary-General of the United Nations, the Home Office and the Scottish Office will prepare notes of guidance for use by justices' clerks or sheriff clerks to assist them in making clear the necessary requirements for the various countries and how the claims should be put together.
Applications from overseas against men in the United Kingdom are to be dealt with as provided in Clauses 27 to 31. Those Clauses enable the claimant overseas to bring the claim for maintenance under United Kingdom maintenance law before a court in this country. The United Kingdom will, of course, comply with the requirements of the Convention by stating to the Secretary-General of the United Nations the requirements of our law. An application against a respondent in England, Wales or Northern Ireland will be treated as a complaint to a magistrates' court for a matrimonial, guardianship, or affiliation order. An official of the court will read over the claimant's evidence to the court, and the respondent will have an opportunity then to produce his own evidence in rebuttal.
Some hon. Members will be aware—the hon. Member for Norwood (Mr. John Fraser) certainly will—that under our existing affiliation procedures it is necessary for the mother always to give evidence in person before the court. Because of the need to sign the Convention, and the fact that the mother in such a case will be living in another country and the man in this country, the Bill provides for 573 the removal of that requirement, so that the mother's evidence can be given, say, on affidavit in the country in which she is then residing. Perhaps I should add that my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers) has a Private Member's Bill now awaiting Second Reading to make similar provision in respect of affiliation proceedings under the domestic law of this country.
The Bill gives full power to our courts to call for further evidence from overseas. If a court, having read the submissions from the country in which the claimant is living, and having heard the respondent, if he appears, is satisfied that, under the law of the country in which the respondent is then living, an order should be made, it may make an order, and it will then be enforced in exactly the same way as an order under Part I of the Bill.
Clause 31 provides for a different procedure in Scotland for applications under Part II. The reason is that court officials in Scotland have no responsibility for enforcing decrees and, therefore, it would be inappropriate to place that duty on the sheriff clerk. Clause 31 provides accordingly that any claim for the recovery of maintenance against a person residing in Scotland will be sent by the Secretary of State to the secretary of the committee of the local Law Society responsible for the administration of the legal aid system in Scotland, who, in his turn, will assign a solicitor for the purpose of making an application; and legal aid will be available for that purpose.
Part III, Clause 40, provides for a third reciprocal recovery and enforcement system, that is, by bilateral agreement, enabling the United Kingdom to give effect to bilateral treaties for enforcement of maintenance orders or claims; and for this purpose an Order in Council may modify or adapt the provisions of either Part I or Part II of the Bill. The reason is that some countries may be unable, or may not wish, to be reciprocating countries under Part I, because their law is not similar to ours; nor may they wish, or be able, to accede to the United Nations Convention under Part II which would enable enforcement even if the law were different. They may, nevertheless, be willing to participate in a bilateral arrange 574 ment with the United Kingdom providing for enforcement by a modification of either of those provisions.
The main example here is the United States of America. The United States could not be a reciprocating country under Part I because its law is not similar to ours; nor is it a party to the United Nations Convention, because enforcement of maintenance in America is a State matter, not a Federal matter. The United States cannot, therefore, sign the Convention. It is clearly desirable that we should have legislative arrangements with the United States for the reciprocal enforcement of maintenance orders, particularly since it is known that there is a good deal of movement of people between the United States and this country.
An informal discussion took place last summer, when the American Bar Association held its meeting in London, and it was suggested that arrangements for the recovery of maintenance might be made with individual States on the basis of the provisions of this Bill. Clause 40, then, is a sweeping-up Clause to enable this country to make bilateral arrangements, and we have particularly in mind its use for arrangements with various States in the United States.
I hope that my explanation has been helpful to the Committee. I shall attempt to answer any detailed points which are raised. I do not doubt that this is a very worth while Bill which will be welcomed. It is welcomed, I am sure, by all the women's organisations. Equally, it is welcomed by anyone who has faced from a constituency or a Home Office point of view, the problem of attempting to enforce orders today when the husband may choose deliberately to go abroad in order to evade his responsibilities to his dependants. I believe that the Bill will help the enforcement of maintenance in that way. It will, therefore, help to ensure that justice is done to dependants, and I have no hesitation in recommending it to the Committee.
§ 10.59 a.m.
§ Mr. John Fraser
We are grateful to the hon. and learned Gentleman for his explanation of this fairly detailed Measure. The principles are quite straightforward. We welcome the Bill, 575 which provides a sort of Interpol for Casanovas. It provides that, no matter in what part of the world one sows one's wild oats, the consequences can be visited upon one, from overseas to the United Kingdom or, if the Committee will pardon die expression, vice versa. When a woman says to her husband, "Darling, I will follow you to the ends of the earth," the Bill gives her the legal machinery to do so.
It is absolutely wrong that there should be a premium on leaving the country if a person has an order made against him. For the cost of a few months' maintenance, one can soon save the cheap air fare to New York, the West Indies or South Africa—it matters not where. There is a premium on moving out of the country, especially outside the Commonwealth convention system. That is utterly wrong, and we are glad to see a Measure to remedy the situation.
There has been need for legislation in respect of Scotland since 1920, and for legislation to implement the United Nations Convention since 1956. Somehow, on law reform we seem to have the motto: "Not a drop is sold till it's 50 years old"—at any rate in relation to Scotland—or, "Not a drop is sold till it's seven years old" with most law reform legislation.
It is a great pity that the House has to wait so long for measures of law reform which are badly needed and agreed by all parties. We are sitting here in a Second Reading Committee, which gives us an opportunity to pass measures through more quickly than otherwise. It is a pity that we could not have a joint Committee of both the Lords and the Commons and go through Second Reading, Committee and Report stage at one go, without wasting a lot of parliamentary time, and without delaying this kind of Measure for many years. It is a question not just of months but sometimes of decades or even half a century.
Part I applies to Commonwealth countries where the law is broadly similar to that of the United Kingdom, but not only to Commonwealth countries. It may apply to any country with a similar law system, and, in particular, to Eire. Will the Under-Secretary try to ensure that the reciprocal arrangements apply as between 576 the United Kingdom and Eire as soon as possible so that we may initiate proceedings in this country against a respondent in Eire, and vice versa? In terms of mobility of labour, family relationships and so forth, Eire and the United Kingdom are virtually one nation, no matter how much we may try to pretend that we are two. There is a good deal of traffic across the water, and it is essential to have reciprocal arrangements so that proceedings may be initiated in either country.
My second question is about the defences which would be available to a respondent under Part I. Affiliation orders are an example here, and the same principle would apply to other matrimonial orders. I shall use an example of the law as it stands in South Africa to illustrate my point. I know that South Africa is not in the Commonwealth, but the reciprocal arrangements apply to it. A couple who are not married have a liaison in this country, the woman becomes pregnant and the child is born in this country. The woman then goes to South Africa and, about 10 years after the child's birth, initiates affiliation proceedings in South Africa. As I understand the law there, the rule that one has to initiate such proceedings within one year does not apply, unless the father has been maintaining the child. By taking advantage of South African law, the mother is able to do something in South Africa which she could not do in the United Kingdom. An order is made and transmitted to the United Kingdom for enforcement. In those circumstances, would the defence available to the man in the United Kingdom still be available in the reciprocal proceedings?
Third, the question of exchange control. We do not operate any exchange control between Commonwealth countries, with the exception of Canada and, perhaps, one or two other isolated examples. But there are some Commonwealth countries, notably India and Pakistan, which have extremely tight exchange control regulations. Have arrangements been made to ensure that orders which are to be enforced in, say, India or Pakistan will be covered by their exchange control regulations so that the money can be remitted out of those countries into the United Kingdom, when a United Kingdom order is sent there? I 577 imagine the balance to be very much in the favour of the other Commonwealth countries, and that rather more money would be flowing out of this country to Pakistan on orders—it is not much money in any case—than would come into this country simply because the standard of living is higher here. It is important that there should be reciprocation on exchange control regulations as well as on the basic law of enforcement.
Finally, could the Under-Secretary make it clear that, certainly in England, the courts will have power to remit arrears? We are all aware of the situation which develops when heavy arrears accrue on an order and the person who has to pay passes over the threshold of being able to pay. He gives up hope altogether and would rather disobey the order, or disappear altogether. If the order is made too high, there is a feeling of hopelessness in the person who has to pay. Therefore, the power to remit arrears and make the order viable is important.
Part II applies to enforcement only, so that if one party is, for example, in France and the other party is in the United Kingdom, one has to go through the French procedure if one is in France, and one cannot send a provisional order to this country unless new reciprocal arrangements are made. I understand that any defence which would be available if the proceedings had been initiated in an English court will be available when the order is transmitted from, say, France to England.
Part III is a rather wide provision allowing the Government to modify the law set out in Parts I and II, but we accept that it is necessary if one is to adapt the system to fit in with Federal arrangements, for example. This is most important. Speaking from experience in my constituency, I know that there are a lot of family relationships between West Indians in my constituency and their families, husbands, wives and children in New York. New York has a State arrangement for enforcing maintenance orders. It is most important that we should try to obtain reciprocal arrangements as between two such territories, even though the Federal law does not provide for enforcement.
The Bill will give effect to the United Nations Convention, implementing what have been, in effect, treaty arrangements 578 among Commonwealth countries. It is a Bill of 49 Clauses, and it is remarkable that, for what is a fairly minor but important matter, we have a Bill of this length, whereas to implement a Treaty to change the entire constitutional status of this country and to implement various obligations between this country and the European Common Market we have a Bill of only 12 Clauses. It is an extraordinary reflection on the contempt with which Parliament has been treated over the other Bill. However, I should be out of order if I went any further on that point.
Is it possible to extend the arrangements in the Bill, particularly those in Part I, to custody proceedings'? A child is born in this country and is taken, let us say, to Jamaica, Australia or any Commonwealth country. The custody of the child can be decided effectively only in the country where the child is living. Sometimes, children are taken off during the course of divorce proceedings. If the child leaves England, the English court is, in practice, powerless to make any provision for it. The court of the country to which the child goes can make an order in respect of the custody of the child, but it can only make it ex parte. The other party will not effectively be represented.
Since magistrates' courts are well used to dealing with custody proceedings, I should have thought it possible to make reciprocal arrangements for dealing with the custody of children. Many of these orders deal with the maintenance of children, and it would be useful if one could have reciprocal arrangements to deal also with the custody of the children at the same time, where the one parent is in one country and the other is with the child in another. I know it is not in the Bill, but I wonder whether that possibility could be explored.
We welcome the Bill, as I have said. I have a question about possible Amendments. Part II gives effect to the United Nations Convention. As I understand it, one ought not to amend the drafting of the Bill if it has been agreed with a large number of other countries. Would the Under-Secretary of State indicate the extent to which it would be possible to amend the Bill without breaching agreements made with other countries, which are, no doubt, putting through similar 579 legislation? It would be to the advantage of the Opposition to know to what extent amendment is permissible under the terms of the Convention arrangements. It may be helpful also to the Government themselves.
§ 11.11 a.m.
§ Mr. David Weitzman
I apologise for not being present to hear the Under-Secretary's explanation. I, too, welcome the Bill, and I want to put only one question to the hon. and learned Gentleman. Clause 1 is an enabling Clause. Can he give us any information as to the extent to which it can be applied now to reciprocating countries? It enables it to be done in the future, but what is the position today? To what extent will it be applicable and, therefore, very helpful?
§ 11.12 a.m.
§ Mr. Edward Lyons
In a contracting world, a Bill of this sort is welcome. It will be a "growth stock" when it is on the Statute Book, because it will be increasingly used over the years. Many solicitors have nothing to do with existing reciprocal enforcement legislation because they do not have cases dealing with it. But over the years, with a substantial immigrant community, and with entry into the Common Market, this Act, as it will then be, will be very much used.
Am I right in thinking that if an English court is asked to confirm a provisional order made abroad it can refuse to do so only when there is a defence in the foreign law? Suppose an order is made abroad to which in England there would be a good defence. Am I right in thinking that by Clause 7 the court in this country, before confirming that provisional order made abroad, can only go into the defences available abroad? If that is right, it would mean, as my hon. Friend the Member for Norwood (Mr. John Fraser) pointed out, that a person abroad could obtain an enforcement order in circumstances where it would be impossible to obtain such an order in this country, even though the marriage had taken place and cohabitation had mainly taken place in this country. That needs to be looked into.
I am a little hazy on the question of legal aid. I always understood that legal aid was not available under the 1920 Act, which the Bill succeeds. As I under 580 stand it, under Clause 43, the Bill will provide State legal aid for someone in this country to obtain confirmation of an order made abroad.
But what about a provisional order made in this country? Does legal aid apply now, and will it apply after the Bill is passed to the obtaining of a provisional order? I ask this question as I have recently had a letter from the Clerk to the Justices of Bradford on a constituency matter saying that at present legal aid is not available for an application to obtain a provisional order with subsequent enforcement abroad. It may be that he has phrased the letter ambiguously. I should like to know the position about legal aid. It is certainly important that a provisional order should be obtainable here with the assistance of legal aid.
A further matter disturbs me in the practical application of the Bill and also of its predecessor. I have come across a case—and I imagine this is a commonplace example—where a woman knows that her husband is in a Commonwealth country but does not know where he is. A woman wrote to our High Commission people in Nigeria about the whereabouts of her husband and they replied saying that they were not entitled to give her his address. I make no complaint about that. But they did not go on to say that they would give the address in confidence to her legal advisers or to the court. The woman, therefore, thought that because she did not have her husband's address there was no point in obtaining a provisional order. However, she went to her solicitors, who asked if she had his address and the woman replied that she had not because the High Commission in Nigeria had refused to give it. The solicitor then said that she must have the address or strong clues to his whereabouts before a provisional order could be made.
This is set out in the Bill. There is a nodding of heads among hon. Members opposite, but I cannot agree with what the nodding of the heads implies because Clause 2(4) provides that the clerk to the justices will not transmit the necessary documents for confirmation of the provisional order to the Secretary of State…if he is not satisfied that the statement relating to the whereabouts of the payer gives sufficient information to, justify that being done.581 In the letter from the Clerk of the Justices of Bradford, he said that there was no point in obtaining a provisional because he could not do anything with the order unless he knew the address of the proposed payer abroad.
I took up the matter with the High Commission in Nigeria, with the result that I was given a promise that an address would be forwarded to the Clerk of the Justices in confidence. The matter will now proceed, a provisional order will be obtained and in due course, presumably, confirmed in Nigeria.
There must be many women who, because they are told by the clerks to the justices or by their solicitors that nothing effective can be done unless they have the address, take no proceedings. All I ask is that high commission or consular officers, when they say that they are unable to give the relevant address, should add that they are prepared to give it in confidence to the person's lawyer or to the court so that proceedings can be effectively instituted.
I wish to ask a question about polygamous marriages. May I take it that if an order is made abroad for maintenance in respect of a polygamous marriage it will be confirmed and enforced in this country? I am not saying that I object to that; I should just like to know the position. We are blocking any loopholes in the Casanova's Interpol of my hon. Friend the Member for Norwood and there is no reason why such an order should not be enforced in this country.
I welcome the Bill. I do not want the Under-Secretary to think that I follow him round from Committee to Committee simply because I am interested in the Bills in question. I also follow him around because I enjoy listening to his always lucid explanations of the Measures he puts forward. The sooner the Bill is on the Statute Book the better.
§ 11.18 a.m.
§ Dame Patricia Hornsby-Smith
I, too, welcome the Bill and congratulate the Under-Secretary on introducing it. I am particularly pleased because I know that many of the women's organisations feel that at last what has seemed the most appalling anomaly to us—that women in the United Kingdom could not obtain enforcement in Scotland—has been corrected. It will be most welcome to many 582 unfortunate people who, because their spouse or former spouse has slipped over the border, have been unable to obtain or continue to obtain their rights in the courts.
I do not think we should let it appear that the Bill will solve all our problems, because in some ways I believe it will create even more. As I understand it, the provisional proceedings can be taken here and a provisional order made which would then be accepted in Commonwealth countries.
I am concerned about the diversity that will arise in relation to the United Nations Convention and countries which have agreed to participate in the reciprocal arrangements. I understood the Under-Secretary to say that about 36 countries had agreed. How can we find out which they are? Hopes will be aroused in many women whose husbands or lovers have vanished to countries that have not signed the Convention and they will not, therefore, benefit from these procedures.
I have had, on at least half a dozen times, the difficult task of dealing, with the sympathetic help, as far as it was able to give it, of the Home Office, with cases in which the man had gone to America and then proceeded to flit from State to State—and the various States have different laws. Take the case of an affiliation order which, under the United Nations Convention, would produce a reciprocal order and payment would be established, say, in the courts of the State of New York to a woman and perhaps to a child in this country. If the man flits to another State where the local law is different, is the situation still governed by the Convention? Has the federal state of America agreed to accept the Convention, or will the reciprocal agreements apply only to those States which have accepted the Convention?
§ 11.21 a.m.
§ Mr. Carlisle
With permission, I should like to reply to the debate.
Whenever the hon. Member for Bradford, East (Mr. Edward Lyons) makes a courteous comment, it means that he thinks that he is asking such awkward questions that he has to smooth them down.
I shall deal first with the questions of my right hon. Friend the Member for 583 Chislehurst (Dame Patricia Hornsby-Smith). The names of the 36 signatories are attached to the Convention and are to be found at the back of the Convention. The United States cannot sign the Convention because maintenance enforcement in America is a matter for individual States and not for the Federal Government. Therefore, since they cannot sign the Convention, we have had to bring in this additional power in Clause 40 to make arrangements with individual territories and to modify the provisions of Parts I and II to meet alterations in the law of individual countries. In other words, this can be done on the basis of a reciprocal treaty arrangement with the individual States of America.
However, taking the case mentioned by my right hon. Friend of the man in New York, provided that we have made arrangements under Clause 40 the maintenance order can be enforced against him while he is in New York. If he then goes to California, we should have to make application before the courts of California, provided that we had made arangements with the State of California under Clause 40 to enforce it there. The situation is not easy because of having different law on enforcement in the different States, but the purpose of Clause 40 is to enable us to make bilateral treaties with the different States of America.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) asked me who were likely to be the reciprocating parties under Part I of the Bill. There are 80 countries or territories within the British Commonwealth which are parties to the 1920 Act and it is hoped and assumed that they will become reciprocating parties under Part I.
The hon. Member for Norwood (Mr. John Fraser) raised the question of Eire. I understand that it is likely that consideration will be given by Eire to becoming a reciprocating country with us under Part I and that some approaches have been made by at least one European country to see whether its law is adequately similar to ours to make arrangements under Part I.
The answer to the point about polygamous marriages raised by the hon. Member for Bradford, East is that a polygamous marriage may be made in part of 584 the Commonwealth, but the order can be enforced in this country because the respondent cannot raise any defences in a country which he is in which are not defences under the law of the country in which the application for maintenance is made.
If the hon. Member for Norwood is right about the South African position, the woman in the position to which he referred could apply for an order in South Africa and get a provisional order. On the confirmation of that order in this country, the putative father would not be able to raise the defence of being out of time because the decision of the courts in this country would have to be in accordance with the law of the country in which the applicant was residing.
The distinction between Part I and Part II is that Part I is specifically limited to those countries which have a system of maintenance orders enforcement broadly similar to that in this country. Only in those circumstances would we agree that they should be reciprocating countries. On the whole, therefore, the types of defence are likely to be similar.
On the point of polygamous marriage, however, if a provisional order is obtained in Pakistan, the order would be referred to the courts of this country together with a statement of the defences which would have been available to the respondent in Pakistan. Presumably it would not have been a defence in Pakistan to plead that the wife was not a wife and that it was a polygamous marriage. That defence, therefore, could not be raised in the courts of this country. If there is a grave discrepancy between the maintenance laws of the two countries, Part I is not applicable. Part II then applies, with the signing of the United Nations Convention. In those cases, the law which applies is the law of the country of residence of the person against whom an attempt is being made to enforce the order.
Take the case of a person who comes from France or Greece to this country. When we have ratified the Convention—and they are parties to the Convention—if a woman in France or Greece wishes to claim an order against a man living in this country, she can do it only if she can get the order in accordance with the law of this country.
585 With respect, the hon. Member for Norwood was wrong transmitting the order under Part II. The order under Part II is made by the country in which the husband is residing. What is transmitted is an application for an order, together with the evidence to support that application. But it is up to the courts of the country in which the husband is residing—this is where Part II and Part I are substantially different—to decide whether an order should be made.
The hon. Member for Norwood asked me various questions. I have dealt with the point about Ireland, and I think I dealt with the point about the defences available to the respondent. The answer under Part I is that only the defences available in the country in which the applicant is residing would apply. I would want notice of the question about the exchange control regulations. It is probably a matter for the Treasury rather than the Home Office, but I shall look into it.
There will be power to remit arrears. Once the order has been registered, its enforcement will be in accordance with the laws of the country in which it is being enforced. Therefore, if there were an application to enforce the payment of arrears against a man in this country, then, since the enforcement is in accordance with the law of the country in which the man is residing, the court would have power to remit those arrears should it decide to do so. As I understand it, that would be an absolute order, not a provisional one which would require confirmation in the other country.
It is true that the Bill does not apply to custody proceedings. It does apply to orders for maintenance for children, but one could not obtain the custody of a child by a court order if the child is in Australia, say, with the husband. As I understand it, the reason is that there is no power to enforce an order to return a child who is outside the jurisdiction of the court. The court may make an order, but there is no means of enforcing the return of someone to the jurisdiction.
I am told that we would consider whether anything could be done about enforcing custody orders on this basis if in fact an international consensus agreed, but at the moment there is no inter- 586 national consensus as to what the law when he referred to should be.
Finally, we cannot amend Part II of the Bill in any way that would affect the Convention, if we are to ratify that Convention. I am told that, though some minor, technical Amendments might be in order, any Amendment which went against the terms of the Convention could not be made if we were to ratify it.
§ Mr. F. A. Burden
It is perfectly clear that the Bill is acceptable to both sides of the Committee and, therefore, it is unlikely that it will get a lot of publicity. As it is a good Bill, what steps will be taken to ensure that its provisions are well publicised?
§ Mr. Carlisle
The Bill was introduced in the House of Lords by the Lord Chancellor on 9th December. It had a certain amount of publicity in the professional Press. It is probable that the terms of the Bill are well known to those organisations which are concerned, but I take the point that it is unlikely to get a great deal of publicity in a Second Reading Committee or as a non-controversial Bill. Clearly its provisions will have to be drawn to the attention of clerks of the courts and—
§ Mr. Carlisle
And the public. But the legal adviser of the woman who has sought legal advice must be assumed to know of the existence of the Act. From the Home Office point of view, it will make answering letters from colleagues in the House of Commons considerably easier if we are able to refer to the possibility of enforcement as a result of the provisions of this Bill rather than having to write letters regretfully back to hon. Members saying that since the man is apparently living outside the Commonwealth there is no means by which the order which has been obtained in the courts of this country can be enforced.
The hon. Member for Norwood is wrong about the question of legal aid. I cannot see why legal aid should not be obtainable in the normal way for obtaining a provisional order. Civil legal aid applies in the magistrates courts for matrimonial proceedings.
§ Mr. Carlisle
I am glad to see I have the concurrence of a practising solicitor. One can apply for legal aid in the normal circumstances, subject to a contribution, and obtain an order.
There are specific provisions in the Bill with regard to Scotland. My hon. Friend the Under-Secretary of State for Home Affairs, Scotland has sat silent in the absence of any queries from that well-known Scottish lawyer the hon. and learned Member for Stoke Newington and Hackney North, who once regaled us on another Committee with the fact that he was basically a Scot whose knowledge of Scottish law gave rise to his knowledge of English law. There is specific provision made for legal aid for the enforcement in Scotland of an order obtained abroad by a woman because it is necessary to use a solicitor for that purpose as there is no system for a court officer enforcing such orders there as there is in this country. I am told there is no legal aid for a defence against a provisional order made, presumably, abroad. But the Bill provides for legal aid to be granted to respondents in those circumstances.
|The following Members attended the Committee:|
|Quennell, Miss Joan (Chairman)||Goodhart, Mr.|
|Archer, Mr. Peter||Harper, Mr.|
|Buchanan-Smith, Mr.||Harrison, Mr. Brian|
|Burden, Mr.||Holt, Miss|
|Carlisle, Mr.||Hornsby-Smith, Dame Patricia|
|Clegg, Mr.||Lyons, Mr. Edward|
|Cohen, Mr.||Stewart-Smith, Mr.|
|Critchley, Mr.||Weitzman, Mr.|
|Fraser, Mr. John|
§ I am grateful to members of the Committee for the welcome which they have given to the Bill which I hope will alleviate some cases of hardship resulting from people who have avoided their legal responsibilities.
§ Question put and agreed to.
That the Chairman do now report to the House that the Committee recommend that the Maintenance Orders (Reciprocal Enforcement) Bill [Lords] ought to be read a Second time.
§ Mr. Carlisle
May I, on behalf of the Committee thank you, Miss Quennell, for presiding over this rumbustious Second Reading Committee, which was in danger of getting out of control at any moment.
§ Mr. Fraser
May I associate myself with the Under-Secretary of State's remarks and say that I am glad that a Committee sitting in this room has, for once, finished quickly?
§ The Chairman
I am much obliged. I am delighted that the Committee has been able to conduct its proceedings so promptly and so well.
§ Committee rose at twenty minutes to Twelve o'clock.