HC Deb 22 June 1973 vol 858 cc1083-90

Upon the making of an order for custody of a minor under any of the enactments referred to in this Act, the court may upon application of any of the parties before it or of its own motion make an order for a stay of execution in respect of the order for custody and separately or additionally make an order that the minor shall not be taken out of the United Kingdom without the consent of the court.—[Mr. John Fraser.]

Brought up, and read the First time.

3.22 p.m.

Mr. John Fraser (Norwood)

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

Mr. Deputy Speaker (Mr. E. L. Mallalieu)

With this, we shall discuss the following amendments:

No. 4, in Title, line 5, leave out 'section 9 of'

No. 5 in Title, line 8, leave out 'section 4(2) of'

Mr. Fraser

I have been asked by my hon. Friend the Member for Newcastle-upon-Tyne, West (Mr. Robert C. Brown), whose name appears with mine to this clause, to say that he is sorry that he can not be in the House today. He has been a persistent and dedicated proponent of the rights of parents when their children are removed from their jurisdiction, and one ought to pay tribute to that fact and regret that unavoidably he cannot be here today.

This clause is modest, and I believe it provides the absolute minimum for deal- ing with the predicament which was widely publicised by the Desramault case. In that case an order was made for the custody of a child. That child subsequently went to four different countries where the custody of the child was fought. There were numerous court applications and eventually, happily perhaps, the child returned to this country.

What the Desramault case illustrates is some weakness in our law. The magistrates, when they heard the case, failed to do two things. First, they failed to make an order for a stay of execution, and secondly they failed—indeed, they could do nothing else—to insert a clause in the order to prevent the child from being taken out of jurisdiction. Subsequently the High Court reversed this decision, but it was too late. The child had left the country.

The problem about the stay of execution was this: no application was made to the magistrates. The magistrates at the time were not clear that they could make a stay of execution. That doubt has subsequently been dispelled in the case Smith v. Smith. The clause puts into statutory form the decision in that case.

The second failure of the magistrates was to make no order that the child should not be taken out of the jurisdiction without the consent of the court or of the other parent. The problem here is that there was considerable doubt on the matter at the time, and, having done some further research myself, I believe that, in fact, the magistrates had no power to make an order restricting the removal of the child from the United Kingdom.

The Desramault case was, perhaps, the widest known, but there are others. Recently, a child was removed from the jurisdiction and taken to Algeria, a country where, I understand, the rights of the father to have custody of a child are paramount, unlike the test in this country which is directed to the paramount interests of the child. This case received some publicity because the mother was able to fly promptly to North Africa and try to do something there, but there are many cases about which we read nothing in the Press, unpublicised and unhappy cases in which children are suddenly and permanently removed from the custody of or access by the other parent and in which, because of a lack of money and inability to fight matters in other countries, nothing happens and nothing is heard.

Certain administrative actions could reduce the risk of the Desramault situation arising again—for instance, thorough checks on passports and observance of requests to the Passport Office that a passport should not be issued for a child without the consent of the other parent where there is an order of the court. But here we come up against the difficulty dealt with in the second part of the new clause, that at present magistrates cannot make an order that the child shall not be taken out of the jurisdiction.

I am the first to agree that what is needed is international action such as we had on the Maintenance Orders (Reciprocal Enforcement) Act, and I was pleased to know from the Committee proceedings that the Minister is actively pursuing agreement of that sort with our partners in Europe and other countries which have laws similar to our own. But we must in the meantime try to prevent a situation in which one parent may all too readily remove a child out of the jurisdiction.

At worst, the child disappears without trace. At best, the parent who has taken the child will play hide and seek with it, a child of tender years, dodging from country to country, choosing jurisdictions which are the most obstructive or which are the most favourable to the abducting parent.

At the end of the Committee proceedings—this is column 40 of the OFFICIAL REPORT—the Minister gave an assurance that he would try to improve the situation. The new clause is the barest minimum legal protection to cover cases of this kind, and I hope that he will receive it sympathetically. The wording may not be perfect. If it is not, the matter can be dealt with in another place. If, however, the clause is not accepted, nothing can be done in the other place, since that is where the Bill started.

3.30 p.m.

The Minister of State, Home Office (Mr. Mark Carlisle)

I listened with sympathy to all that was said by the hon. Member for Norwood (Mr. John Fraser), but I have to say that, on reflection, I cannot advise the House to accept the new clause. I fully understand what the hon. Gentleman said about his hon. Friend the Member for Newcastle-upon-Tyne, West (Mr. Robert C. Brown), who has been active in attempting to remedy what he believes to be a gap in the present law in this respect, arising out of the Desramault case which originated in Newcastle. I fully accept that there are good reasons why he cannot be here today to move the new clause.

In Committee, I said that I would look again with sympathy at the problem. We have looked at it again, but, on further reflection, I must stand by the view which I then expressed, that, while appreciating the concern in this matter, I do not believe that an amendment to this Bill is the way to deal with it.

I have a few comments about the intention behind the clause and about why I do not think it either necessary or desirable that it should come into force in this way. It has two purposes. First, it seeks to put into statutory form the fact that the court of its own volition has the power to make a stay of execution in a guardianship order. The second purpose is to provide a new power for the magistrates' court to be able to make an order that no minor should be taken out of the United Kingdom other than with the consent of the court.

I am satisfied that the first aim is not necessary and might well have the effect of muddying the law rather than clarifying it. It is now abundantly clear that the court has the power to make a stay of execution in any application that comes before it. The hon. Member is correct in saying that at the time of the Desramault case no application was made for a stay of execution, and I understood, as he did, that the court, although mindful of the desirability of making a stay of execution in that case, felt that it had no power to do so other than on an application being made to it.

However we now have the case of Smith v. Smith decided in 1971 where the divisional court made it absolutely clear that while the first responsibility for applying for a stay of execution rested on the applicant to ask for such a stay, if no such application is made the justices themselves should consider whether a stay is appropriate and apply a stay of execution on their own order. That was approved by the divisional court in that case.

On the other hand if one were to make that clear statement of the existing inherent power of the court and put it into statutory form in the Bill, that might cause doubts as to whether there was an existing and clear inherent power in other areas of the law where it had not been stated in statutory form. Of course, I must make the point that we are dealing here, in spite of the ingenuity of the drafting of the clause, with applications for custody in guardianship proceedings and not the far wider applications in the matrimonial proceedings in magistrates' courts when the application for custody goes along with the claim for custody by the parent on his or her own behalf.

To state specifically in statutory form that in applications under the Guardianship Act the court has the power to make a stay of execution might have the effect of throwing doubt on whether that power exists under proceedings brought under any other Act where it was not statutorily referred to. It might be said that there was a need to put it in statutory form in the Guardianship Act because of the doubt of the existence of the common law power to grant a stay of execution.

Mr. John Fraser

I thought of it. That is why I have so drafted the amendment that it says: Upon the making of an order for custody of a minor under any of the enactments referred to this in this Act". The 1960 Act is referred to in it.

Mr. Carlisle

As I have said, I did not want to take technical drafting points, because it is unfair to do so, and the hon. Gentleman has made a brave attempt. I realise that presumably that phrase was intended to achieve his object. But I am not sure whether the making of an order…under any of the enactments referred to in this Act would have passed the scrutiny of parliamentary counsel if the Government had accepted the clause. We should have had to tighten it up, and then we should have had to decide whether to stick to the position that we have taken throughout the rest of the Bill, namely, that its purpose in so far as it affects previous legislation, as well as giving the wife equal rights of guardianship to those of her husband, was to bring into legisla- tion the existing law on guardianship applications, to coincide and correlate with those in matrimonial proceedings under the Matrimonial Proceedings Acts. It was not the intention in the Bill to change the substantive law as it applied in those Acts.

Therefore, I do not feel that the first half of the clause is either necessary or desirable. But the point raised, and the purpose of trying to prevent children from being taken out of the jurisdiction of the courts while there is still an issue as to their custody is one which we have very much in mind.

As I said in Committee, two working parties of the Law Commission are sitting, one of them dealing with matrimonial proceedings in magistrates' courts and the second dealing with jurisdiction and enforcement in relation to custody orders. We have drawn the attention of the Law Commission to the problem that was raised in Committee and what was said then. I also undertook to consider not only whether Smith v. Smith should be put into statutory form but what could be done to draw that decision to the attention of the courts. I understand that in the May edition of The Justices' Clerk there was a full article about the effect of the Smith v. Smith decision. We are also quite prepared to ask magistrates to be reminded of the existence of the power at any talks and training given to justices.

I turn to the second part of the intention of the clause, which is to give what would be a completely new power to the lower courts to make an order that a minor should not be taken out of the United Kingdom without the consent of the court. It is not apparent how application would be made or how it could be altered later, but that is a small point. My general point is that no such power now exists in the magistrates' courts, and the clause would grant to lay magistrates a substantial new power that needs much wider consideration. The matter should be examined by the Law Commission working party in its review of the work of the magistrates' courts in this aspect of law generally.

Secondly, there is the genuine practical problem of how to enforce the order. It is true that there is now procedure by which any person can obtain an order prohibiting the taking of a child out of the jurisdiction of the court without the court's consent by applying to have that child made a ward of court in the High Court. I should like to say two things about that.

First, it is a relatively simple procedure. Legal aid is available in wardship proceedings. An emergency legal aid certificate can be obtained almost immediately in the event of need. The hon. Member, as a practising solicitor, will know that all that is necessary to bring it into effect is for the parent concerned to make an application to the High Court for an originating summons and, by virtue of the 1949 Act, the child becomes a ward of court immediately the summons is issued but ceases to be so unless an appointment for the hearing of the summons is obtained within 21 days. Therefore, the application is sufficient to render, for a period of three weeks, it unlawful to make any attempt to remove the child from the jurisdiction without the High Court's permission. Such an application can be made at once.

We must consider the effect which widening the power of the magistrates' court would have on the arrangements made to enforce a High Court wardship order. We must face the fact that the number of people travelling in and out of this country has increased so enormously in the past 10 or 20 years that a stop order of this kind continues to be effective only if it is made in a limited number of cases. In 1970, 18.2 million British passengers moved in and out of the country and the number of aliens passing through the ports had increased to 10.6 million. With that volume of people, the effectiveness of the order depends on the immigration people having only a relatively few cases to watch out for, yet in 1972, under the High Court procedure, the Home Office was consulted about the institution of precautions in 330 cases. The new clause would give a wider power to magistrates' courts than exist in the High Court, because it refers to the United Kingdom, which includes Northern Ireland and Scotland.

While being sympathetic to the purpose of the new clause, and assuring the hon. Gentleman that I shall draw the attention of the Law Commission to the points which he has made, I do not think that the Bill is the appropriate means by which to implement this change in the law. I do not think it desirable, within the parliamentary timetable, for the Bill to have to go back to the Lords and be amended in order to put the drafting of the clause in order and then return to this House when it is at the end of its passage through Parliament.

Mr. John Fraser

We are always up against the difficulty that if the clause is in the right form the time is wrong. If the time is right, the place is wrong.

However, I am comforted by the assurance that this matter is now under consideration by the Law Commission and that the point raised in Committee and today will be taken into account by it. I hope that eventually we shall find the right form, the right time and the right place to remedy this injustice. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Motion made and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Readings), and agreed to.

Bill accordingly read the Third time and passed, with an amendment.