§ 10.30 a.m.
§ 10.31 a.m.
§ The Minister of State, Home Office (Mr. Mark Carlisle)
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Guardianship Bill [Lords] ought to be read a Second time.The Bill gives the impression, when one looks through its clauses and several
- Haselhurst, Mr. Alan (Middleton and Prestwich)
- King, Mr. Evelyn (Dorset, South)
- Lyons, Mr. Edward (Bradford, East)
- Monro, Mr. Hector (Undersecretary of State for Health and Education, Scottish Office)
- Stanbrook, Mr. Ivor (Orpington)
- Stuttaford, Dr. Tom (Norwich, South)
- Thomas, Mr. Jeffrey (Abertillery)
- Vickers, Dame Joan (Plymouth, Devon-port)
- Walder, Mr. David (Clitheroe)
- Ward, Dame Irene (Tynemouth)
- Weitzman, Mr. David (Stoke Newington and Hackney, North)
- Miss A. Milner-Barry, Committee Clerk.
§ schedules, of being somewhat technical and complex, but its main purpose is simple and straightforward. It is to provide in law for equal rights for husband and wife in relation to the guardianship of their children. In doing so it carries a stage further the Government's implementation of the recommendations made by a Conservative Party research committee under the chairmanship of Mr. Anthony Cripps, whose report was published just before the last election. It carries out a pledge made in our election manifesto to remove discrimination against women in the laws of this country, 425 and it puts right what has been a genuine grievance of women's organisations for many years.
§ To many it may come as a surprise to hear that in the 1970s the rights of a mother over her child are, at common law, non-existent when compared with those of the father; that the custody of any child at common law rests solely with the father; that he and he alone is technically responsible for decisions on the child's education and religious upbringing and in matters of consent; that a mother can obtain custody of her child only by an action in the courts, and that a court order can be made only following upon separation between husband and mother; and that in the absence of such a court order the custody of a child remains with the father even if the parents are separated and the child is physically living with the mother. That is, I hope, a reasonably accurate and certainly brief resume of the present law in relation to the mother's rights over her child.
§ It may be helpful if I begin by reminding the Committee how this situation came about. At common law a father had the custody of his legitimate children and the rights and powers which flowed from custody, such as the right to choose the religious upbringing of that child. He also had the right to appoint a guardian for his children to act on his behalf on his death.
§ That was the position in England and in Scotland until 1886, when Parliament for the first time intervened to improve the position of the mother. The Guardianship of Infants Act of that year, which applied to the whole of Great Britain, provided for the mother to be a guardian of the child on the father's death, and enabled her to apply to the court for the custody of her child, but when she did so the court was required by that Act to consider the conduct and wishes of the parents and the welfare of the child. Despite the reference in the Act to the child's welfare, in practice the courts tended not to deprive the father of the custody, although the child might be living with the mother, unless the mother could establish some misconduct on the part of the father which justified this.
§ In 1922 and 1923, following the election of women to Parliament, a number of 426 Bills were introduced, the effect of which would have been to make the mother and the father joint guardians of their children. Those Bills were referred to Joint Committees of both Houses which failed to reach agreement upon them.
§ In 1924 a Bill was introduced and given a Second Reading—despite the doubts of the then Labour Government —which would have given joint guardianship to both parents. After the Labour Government had entered into negotiations with the promotors of the Bill they introduced their own Bill which retained the principle that custody should remain with the father, but provided for the equality of the mother and father in court proceedings and also provided that the welfare of the child was to be the first and paramount consideration in such proceedings. It also enabled those proceedings to be brought in a magistrates' court and provided for the mother to be awarded maintenance as well as custody.
§ Before that Bill could complete its passage the Government fell at the ensuing General Election, but the Bill was introduced in similar form by the then Conservative Government and became the Guardianship of Infants Act 1925. That Act left the custody in law to the father, but gave the mother equal rights to apply to the court to have the custody put into her name. Not surprisingly, that compromise did not satisfy the women's organisations at that time, and it was not long before their demands for equality were renewed. I find it somewhat surprising that it has taken nearly 50 years to achieve this reform.
§ In 1965 my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers), who has been a doughty fighter in this cause, introduced a Private Member's Bill which would have had the effect of granting joint guardianship to both parents. That Bill gained a Second Reading and passed through Standing Committee, but made no further progress. The only difference between my hon. Friend's attempt and the Government's proposals today is that the intention of her Bill was to grant to both parents joint custody, whereas the effect of this Bill is to provide for equal but separate rights over the children.
§ Four years later the present Prime Minister, who was then Leader of the 427 Opposition, set up a Conservative Party research committee under the chairmanship of Mr. Anthony Cripps, of which I was privileged to be a member. That committee recommended that parents should be given equal rights of guardianship.
§ As I said, in 1924 and at earlier stages objections had been seen to parents having joint rights. There would, indeed, be practical difficulties if by law day-to-day matters—for example, the need for a child to undergo an urgent operation— required the consent of both parents, one of whom might not readily be available. It is for that reason that that committee recommend the simpler solution of giving both parents equal rights, so that either parent could take the decision. That is the effect of Clause 1 of the Bill in England and Wales.
§ To bring the history completely up to date, I remind the Committee that in the present parliamentary year my hon. Friend the Member for Tynemouth (Dame Irene Ward), who was eleventh in the Private Members' Ballot, gave notice that she intended to introduce a Bill which would have this effect. I am grateful to my hon. Friend for agreeing to withdraw her Bill to enable the Government's Bill, which was then in the process of entering the House of Lords, to go through in its place. After all the causes for which my hon. Friend has fought during her many years in the House of Commons, it must have been a wrench for her to agree, in her last parliamentary session, voluntarily to give up the chance of introducing a Private Member's Bill which might have become law. That generous gesture on her part shows that she is much more concerned with the principle of women having equality of rights with men over their children than she is with any personal glory which she might have gained from being the architect of that Bill.
§ What Clause 1 does for England and Wales, Clause 10 does for Scotland. The effect of Clause 10 is to produce in Scotland a similar position to that in England. I hope that the Committee will excuse me if I do not go in detail through the provisions of Clause 10. I notice that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) is a member of the 428 Committee. On a previous occasion, which the hon. Member for Bradford, East (Mr. Edward Lyons) will probably remember, the hon. and learned Member for Stoke Newington and Hackney, North claimed to be an expert in Scottish law. If the hon. and learned Gentleman wishes to pursue the niceties of tutelage and pupilage under the Scottish law, my hon. Friend the Under-Sec-retary of State for Health and Education, Scottish Office, will ably assist, but as on that occasion the hon. and learned Gentleman was discussing a Bill which the Opposition's purpose was to delay as much as possible, he may not consider his knowledge of the Scottish law as great today as it apparently was on that occasion.
§ The effect of Clause 1 is to give equal rights over the upbringing of their children to both the mother and the father; to give them equal rights over the control of any property that a child may have; to give them equal rights to make decisions about a child's upbringing—for example, equal rights to apply for a passport to allow the child to go abroad— and to make clear beyond doubt that decisions about a child's upbringing may in future be taken by a mother in the absence of her husband.
§ The Clause also provides that where the parents are separated and the child is physically living with the mother the mother has a right to the custody of that child and a right to make decisions on that child's behalf without the necessity of applying for a court order, although it will still be necessary to apply for a court order should one parent wish to deprive the other parent of his or her equal rights.
§ I have no doubt that parents, particularly when they are living together, almost invariably agree about the upbringing of their children. They bring into the world and bring up the child as a joint enterprise, and it is not surprising that normally they agree in decisions about the child. But the Bill provides for the case where the parents might disagree by giving both parents equal rights. That is the effect of Clause 1(3).
§ At the moment, if the parents separate it is possible under the existing law for either to apply for custody, and for the parent having custody to be entitled to take decisions, but in the new situation 429 of equal rights created by the Bill we have to envisage the circumstances in which there is a disagreement between the parents who are living together and one of them wishes to put the matter before a court. I repeat that I do not suggest that that is likely to be a common situation, but it is clearly one for which the law must provide, hence subsections (3) to (5) of Clause 1.
§ Section 1 of the Guardianship of Minors Act would apply to such proceedings as to all other proceedings concerning the custody and upbringing of the child, so that the first and paramount consideration in any question which the court is asked to decide will remain the consideration of the child's welfare. The court is prevented from making an order for custody and access in such an application, because that would not be appropriate if the parents were still living together. As I have said, if the parents are separated, and if one parent wishes to extinguish the rights of custody of another, a custody application can be made under the existing law.
§ Equally, the purpose of Clause 1(7) is to preserve the situation which exists at the moment where the joint consent of both parents is required. This applies, for example, for consent to marriage or consent to adoption. The present law requires that for a child under a particular age the consent of both parents to the child's marriage must be obtained and, equally, before any adoption proceedings can take place the consent of both parents must be obtained. It is right that the law should remain as it is to deal with those two matters. It is not a decision that can be taken by one parent against the wishes of the other.
§ With equal rights must, of course, go equal liabilities and responsibilities, and Parliament has not been slow in the past to accept equality between the sexes. The Statutes which place on parents the liability to maintain their children and to see that they are educated, and which require them not to ill-treat or neglect their children, already apply both to mother and father alike, but the existing guardianship law, while enabling the court to grant custody to either parent, and while retaining provisions whereby the father can be ordered to maintain the child if custody is given to the mother, 430 has no provision under which the mother can be ordered to provide maintenance for the child where the custody has been given to the husband.
§ Therefore, to ensure that equal rights are matched by equal liabilities, the purpose of one of the consequential amendments made to Clause 2(1) is to enable the court which gives custody to the father to order the mother to pay maintenance to him. I believe that that is realistic. It recognises what may be the present-day situation, namely that through inheritance the mother may have money or, much more likely, through everyday work, her income may now be equivalent to or greater than that of the husband, and it is right that there should be provision for the court to grant maintenance to the child to be paid by the mother, just as at the moment there is power to order it to be paid by the father. The Bill therefore recognises, not before time perhaps, that the principle behind the law should be that the husband and wife have equal rights and responsibilities in relation to their children, and it is that fact which brings the law in this country into line with that in the Scandinavian countries and in many others.
§ We all know that, in practice, the bringing up of children is a joint venture betwen husband and wife, and for this reason perhaps the practical effects of this Bill will not be great. There will not, I think, be any rush to the courts under Clause 1(3). Where a woman's husband has left her with the children and will not pay her maintenance, voluntarily or by agreement, it will still be necessary for her to bring proceedings in the courts. That procedure will also be necessary if there is a dispute about custody, or if the woman wishes to obtain an order giving her sole custody against the possibility of her husband's returning and seeking to exercise his equal part of parental rights. Equally, that situation will now apply to the husband.
§ Under the existing law of separation, where the wife has the child, the husband is held to be acting within his legal rights if, in the absence of any court order, he takes that child away, but there is no equal right for a wife to come and take the child away from the husband. Under the rights of guardianship granted by the Bill, each parent will have a 431 right to custody of the child. Therefore, if they wish to provide against the possibility of one or other returning and seeking to remove the child they will have to apply to the court for such an order. If the wife has no reason to fear the husband's interference the Bill will enable her, without having to obtain an order from the court, to take decisions herself about the upbringing of her children.
§ In practice the effect of this Bill may be small, but in principle I believe that it will be of great importance. I believe that it recognises, as we should recognise, that the mother has equal rights over the upbringing of their children with that of the father. It removes a clear discrimination which exists in the law against women, and in the eyes of many puts right what has long been looked upon as an injustice.
§ Clauses 2 to 6—and Clauses 11 to 14 dealing with Scotland—extend the powers of the courts in guardianship proceedings under the Guardianship of Minors Act, and perhaps I may deal with them briefly. They enable the court, when adjourning a case for seven days or more, to make an interim order for custody and maintenance; they give to the court power, when making an order for custody, to order that the child shall be under the supervision of the local authority or a probation officer; and they enable the court, in exceptional circumstances, to commit the child to the care of the local authority.
§ These are powers which the courts already have in matrimonial proceedings, and the effect of these clauses—as I am sure the hon. and learned Member for Stoke Newington and Hackney, North and the hon. Member for Norwood (Mr. John Fraser) will appreciate—will be to give similar powers in proceedings under the Guardianship of Minors Act rather than under the Matrimonial Proceedings (Magistrates' Courts) Act 1960. The reasons will be well known to the lawyers on the Committee.
§ The great majority of applications to magistrates' courts under the Guardianship of Minors Act are brought in circumstances where the marriage has broken down, and in those circumstances the wife has the opportunity either to apply to the court under the Matrimonial Proceedings (Magistrates' Courts) Act for maintenance 432 for herself—and in that ask for maintenance and custody of her children—or to apply, under the Guardianship of Minors Act, for custody and maintenance of the children.
§ There are obvious reasons why she may prefer to do the latter. She may not be interested in maintenance for herself, or she may be aware that her husband's income is such that there is no real purpose in applying for such maintenance. It may be that in those proceedings she would have to show a matrimonial fault by the husband, and that she would be unable to do. It may be that she is the party who has chosen to leave. For various reasons she may wish to take proceedings to safeguard the children without asking for maintenance for herself. It is therefore right that in those proceedings the court should have a similar power to make the type of order in regard to the children it would have made had she taken proceedings on her own behalf as well.
Clause 7 deals with the point which arose when the guardianship law was consolidated about two years ago. Section 8 of the Guardianship of Minors Act, which is the consolidating Act, says:
Every guardian under this Act shall have all such powers over the estate and person or over the estate (as the case may be) of a minor as any guardian appointed by will or otherwise has under the Tenures Abolition Act 1660 or otherwise.
§ The joint committee which considered the consolidation Bill pointed out that it was rather unfortunate that a 1971 Act should have to refer to the Tenures Abolition Act 1660—which at one time was probably on the lips of every lawyer, but which the hon. and learned Member for Stoke Newington and Hackney, North has probably long forgotten—and the effect of Clause 7 is to carry out the proposals of the joint committee and modernise the law by setting out what was in fact the effect of these words. As I said, my noble Friend the Lord Chancellor shared the view of the joint committee that the law should be modernised and the opportunity of the Bill has been taken to do so.
§ It has been suggested that there are various other ways in which the Bill should be widened, and I want to mention two. It has been suggested, and it may be suggested during the debate today, that we should have taken the opportunity of the Bill to take in the recommendations 433 of the committee which reported on adoption. I shall do my best to answer any points that may be raised on that.
§ This Bill has to do with the rights of a mother over her legitimate children, as against the rights of the father, and we are anxious to relate the Bill to issues which relate directly to the custody and maintenance of such children. The review of the adoption laws, as the hon. Member for Plymouth, Devonport knows, is de-partmentally no longer the responsibility of the Home Office but has been moved to the Department of Health and Social Security. Although I hate to rely on demarcation issues, there is a clear demarcation here. It is the view of that Department, as it was of the Home Office, that it is a report which needs to be considered and, if agreed upon, implemented as a whole, rather than attempt to pick out individual recommendations which might be worked into some other Bill.
§ Also, it has been suggested by the justices clerks, among others, that the opportunity might have been taken to deal with various matters with regard to magistrates' courts' powers in proceedings for maintenance by a wife in her own right, and to deal generally with what they see as lacunae in the existing law on maintenance in matrimonial proceedings in magistrates' courts. As the Committee knows, matters relating to matrimonial proceedings are being considered by a working party of the Law Commission. That, I think, follows on from the passing of the Divorce Act and the distinction between matrimonial orders in the higher courts and in the lower courts. The Government think it right to await the recommendations of that working party, although they are perfectly happy to draw to its attention any matters which may be raised during this debate.
§ To sum up, Mr. Fitch, the Bill has two objects. First, to remove from the law the outdated assumption that it is the husband who takes all the important decisions about the children and not the wife, and to replace it with the concept of equal rights and equal responsibilities. Secondly, to ensure that where, unhappily, the marriage has broken down and it becomes the duty of a court to take what steps it can to safeguard the 434 welfare of the children, the court should have the adequate and necessary powers.
§ I commend the Bill to the Committee.
§ 11.1 a.m.
§ Mr. John Fraser (Norwood)
The Opposition welcome the Bill as a further step in the battle over discrimination against women. As the Minister rightly said, the Bill is probably more important in principle than in practice, and those who wax eloquent about equality for women ought to devote their attention to ensuring that the other Bill now before this House—the Anti-Discrimination (No. 2) Bill—has a speedy passage, because there must be not merely equality of legal rights but also social and economic equality, and one can be meaningless without the other.
The purpose of the Bill is to confer upon a legitimate mother the same rights in respect of the property and person of a child as are at present enjoyed by the father. It puts right an age-old inequality between husband and wife. Up to now, a wife has been treated like a domestic animal, rather than as a human being. She conceives the child, she bears the child, and she rears the child and yet, while the parties live together, she has no more rights of property or rights of control in that child at law than, let us say, a domestic animal has in respect of its offspring. It is about time that man's age-old proprietorial rights over women were abolished and women were given equal rights with their husbands. Therefore, as I said, we welcome the Bill and will ensure that it has a speedy passage.
I shall not describe in detail the consequential effects of the Bill in so far as it relates to equality of the sexes, because that has already been done adequately by the Minister. I want to ask only one question about passports. The present position, where the parties are living together, is that the husband can apply for a passport for a child and he does not need the consent of the wife, but unless there is a court order to the contrary the wife often needs the consent of the husband. What is to be the practice of the Passport Office when the Bill becomes law? Will either spouse be able to consent to the child going out of the country and be able to apply for a passport for the child, or will both parties have to 435 consent to the child leaving the country before a passport is granted? It is important to know the answer, because I want to deal later with some of the difficulties which arise over the implementation of custody orders.
I suppose that the Bill is unusual in these respects. First it implements one of the Government's election pledges. Secondly, it does not cost any money to implement. Thirdly, it implements the Opposition's policy because the Bill contains a recommendation made in paragraph 814 of the working party's report on discrimination against women. Thus there is a consensus on this issue of sharing equal rights in respect of children.
The Bill does not deal only with according equal rights while the parties are living together, and the Government have not lost an opportunity to tidy up the law. Indeed, most of the Bill deals not with equality in respect of custody of the children but with the tidying-up process. Clauses 2 to 6 of the English part of the Bill, and Clauses 11 to 14 of the Scottish part of it, deal with the tidying-up process and allow the court, where an application is made under the Guardianship of Minors Act 1971, to make an order placing a child under supervision or, in exceptional circumstances, placing a child in the care of the local authority. Then there are consequential provisions arising from that decision, as well as provisions about interim orders, and a tidying-up of the words in the 1971 Act which legislated by reference to an Act of 1660.
I do not quarrel with the opportunity to tidy up the law relating to guardianship, and it is right that that should be done, but I want to make just one criticism. In Clause 2(2)(a), there is a provision that a child can be placed under the supervision of a specified local authority or a probation officer. I wonder whether it is right, in proceedings which have no criminal taint at all and which relate solely to guardianship or to access to a child, that the court should have power to place a child under the supervision of a probation officer. First, that seems to be contrary to the general trend of making local authorities the main agents to take care of children. Secondly, there is a criminal taint to a child being under the supervision of a probation 436 officer. Thirdly, probation officers are already fully engaged on their main duties of befriending and assisting offenders. I should have thought that it was better to remove the reference to a probation officer and to allow the court to place a child only under the care of a local authority.
Clauses 3 and 4 are consequential on the decision to tidy up the law of guardianship, and I make no criticism at all of them. But there are other matters which should be put into the Bill. We have an opportunity to implement some of the recommendations of the departmental committee on the adoption of children. I do not suggest for one moment that one could graft on to this Bill detailed provisions about adoption law—because I do not for a moment think that that would be practical—but there are many recommendations in the report which relate only to guardianship and to the custody of children, and I should have thought that this was the right opportunity to have a look at them.
For instance, there are often tug-of-love cases in which a child is lovingly and devotedly cared for by foster parents, is sometimes neglected by its natural parents or forgotten by them for long periods, and then, when the child is 14, 15 or 16, the natural parents want to take it away from the foster parents. Most people feel that it is an injustice that the foster parents find it impossible to obtain any rights in respect of the child. That is an urgent matter which requires urgent legislation to deal with it.
I realise that, to some extent, the courts have begun to solve the problem. In the case of "O", a minor, whose Nigerian natural parents lived in my constituency, this young child had been in the care of a middle-class white family living in Surrey for about 14 years. The Nigerian natural parents, who paid very little towards the maintenance of the child and did not appear to take a very great interest in it, wanted to take it back to Nigeria, but the court very properly decided that it should remain with the foster parents. The court did that by the device of making the child a ward of court, on condition that it remained with the foster parents. That is the kind of situation which has arisen, and we ought to take the opportunity now to deal with tug-of-love cases.
437 After all if, under Clause 2, a child can be placed in the care of a local authority when its parents are disputing custody of the child, I do not see why we cannot say that when a dispute arises between parents and foster parents the court should have an opportunity to make a guardianship order in favour of the foster parents, with adequate protection for the natural parents.
The point is dealt with succinctly in the inter-departmental committee report, which says in paragraph 116:There are many children who are not being brought up by their natural parents but are in the long-term care of foster parents or relatives. These people normally have no legal status in relation to the child, and the law provides no means by which they can obtain it without cutting his links with his natural family by adoption. They are faced with the choice of doing without the legal security,"—and these are the important words—which may be damaging to the child".One ought to take the opportunity, therefore, to legislate on this matter, otherwise we shall find ourselves in difficulty in which the House has found itself time and again. In 1920, people were generally agreed that parents ought to have equal rights over the children, but because of the way in which this House conducts itself it has taken 53 years to translate that into legislation. Therefore, we should take this golden opportunity— it will not take very much longer—to do something about guardianship and about the rights of foster parents, because the opportunity may not arise again for another 10, 20, 30, 40 or 50 years.
Time and time again that is the story of social legislation, but in the report there are recommendations on guardianship which could properly be incorporated in the Bill. There is Recommendation 21, thatThe right to apply for custody under the Guardianship of Minors Act … should be extended … to relatives already caring for a child and foster parents".There is Recommendation 22, thatA guardianship order should not deprive the natural parents of the right to consent, or withhold consent, to adoption.There is Recommendation 31, thatThe law should require 28 days' notice of removal of a child who has been in the care of a local authority for 12 months or more, and during this period of notice it should not 438 be possible to remove the child without the permission of the caring authority.There is already in the Bill a clause which states that a child can be placed in the care of a local authority, even when there is a dispute only about custody by the parents. Surely it is logical, if we think it right to make a court order placing a child in the care of a local authority, to take up this recommendation that, when a child has been in the care of the local authority for more than twelve months it cannot be removed without 28 days' notice. A paramount consideration must be the welfare of the child, and these recommendations surely add to that consideration.
Finally, there is a Recommendation 32, thatLocal authorities should have discretion to resolve to assume parental rights over any child who has been in their care for three years.I hope that in Committee stage the opportunity to legislate on these very urgent and often very heart-rending matters will not be neglected. I realise that the report must await further consideration, but these are urgent matters which could be dealt with by amendments to the Bill.
One other matter is the flouting of orders for custody by the husband or wife when the child is taken out of the jurisdiction of the Scottish or English courts in order to defy the rights legally conferred by the court on the other parent. There is a clear duty on the Government to act to prevent a child being abducted out of the United Kingdom to thwart the order of the court. We must put an end to the hide-and-seek chases round the court houses of the world where it appears that, with impunity, a husband—or a wife—may pick and choose jurisdictions to achieve the result he desires.
The Desramault case achieved the greatest degree of publicity, and there were protracted proceedings in the United Kingdom, France and Switzerland. One shudders to think of the cost of the proceedings for the parents in that case. One has to be extremely rich, or blessed with the beneficence of somebody else, to fight the proceedings in this country, proceedings and an appeal in France, and finally proceedings in Switzerland, possibly also going to appeal.
439 There was another case of a mother in Devon having custody and the child was abducted and taken to Algeria. I read that she was able to charter a plane to Algeria to fight the case there, but how many working-class parents can afford to go to Algeria, let alone charter an aircraft to go there? I have a case in my constituency of a child being taken to the United States and it has proved impossible to trace the child. If the child is traced the parent who has him or her can play hide-and-seek from state to state because there is no federal guardianship law in the United States.
I raised this matter on the consideration of the Maintenance Orders (Reciprocal Enforcement) Bill, when I urged a study of this problem. The matter should be looked at again, because in these times of rapid communication, when the frontiers of Europe are being opened up more and more, it is a growing problem. I should like an undertaking from the Government that they will consult the United Nations, or at least their European partners or members of the Council of Europe in order to achieve reciprocal recognition and enforcement of orders for custody.
The court which makes the order where the child is resident should be the court whose order is observed by other courts. If one can pick and choose the jurisdiction by travelling, the whole purpose of custody law can be defeated. If there can be directives from financial institutions dealing with substantial sums of money, I do not see why something similar cannot be achieved where there are human considerations.
I am sorry that I have dealt mostly with matters which are not in the Bill, with some which should be in the Bill, and with others which relate to custody orders, but I welcome the Bill. I am sure that it will have a speedy passage, especially if the Government include the matters of custody which I mentioned.
§ 11.18 a.m.
§ Dame Joan Vickers (Plymouth, Devonport)
First, may I congratulate my hon. and learned Friend the Minister of State on introducing this Bill. I gather that it was he who arranged for the Bill to be introduced into the other place. It appears to me, having read every word of the proceedings in the other place, 440 that some of the most outstanding lawyers took part in the debates there and made substantial changes which I am sure will be beneficial.
I am also grateful to the Government because this is the second Bill which I have introduced as a private Member and which they have taken over. The other was the Attachment of Earnings Bill which the Government took over as the Maintenance Orders (Reciprocal Enforcement) Bill.
I should like to thank my hon. Friend the Member for Tynemouth (Dame Irene Ward) who will always support these causes. My hon. Friend put her name to the Bill when it seemed doubtful whether the Government would take it over, and she was willing to join the battle to get it on the Statute Book.
I should like to clear up a point raised in the other place about passports. When I failed to get my Bill through, I raised the matter in the House, and on 27th January 1966, Mr. George Thomson, who was then the Minister in charge, gave me an assurance that women would be able to obtain the necessary passports and the arrangement has proved to be satisfactory. During the debate on the Bill in the other place the noble Viscount, Viscount Colville of Culross, said:The present situation is that a child may be included on his fathers or on his mother's passport, or on both of them simultaneously. Under the existing practice, a mother who wants to take abroad a child who is entered on his father's passport has only to apply to the Passport Office to have him entered on her own passport, always provided that no objection has been lodged by the legal guardian or by a party awarded custody or care."—[OFFICIAL REPORT, House of Lords, 20th March, 1973; Vol. 340, c. 669.]Since Mr. Thomson gave that permission to the Passport Office there has been no difficulty in a woman, even if she has been deserted, getting a passport, and the system has worked well up to now.
There is also the question of probation officers. I understand that there is a difference between the practice in England and Wales and Scotland. No child can be referred to a probation officer in Scotland, and I suggest that we try to see that that—
§ Mr. Carlisle
The reason is that there is no separate probation service in Scotland. It has been merged with the local authority social services.
§ Dame Joan Vickers
I know that there are extenuating circumstances, but a child should never be referred to a probation officer unless he or she has been guilty of a misdemeanour.
With regard to the recommendations of the Houghton Committee, I disagree with the hon. Member for Norwood (Mr. John Fraser). I sat on that committee, which met for nearly three years, and it would be a great mistake to have its recommendations dealt with piecemeal, particularly as there is a European Convention. A number of changes would be necessary in order to meet the recommendations of the Houghton Committee. The European Convention on the adoption of children would need to be modified. That would require consultation through the Council of Europe or through Ministers, and that would be more beneficial than dealing with the matter in a Bill like this.
Clause 1, taken with Schedule 1, provides for the rights and authority of the father and the mother. I do not like the words "rights and authority". Could we not have "authority"? "Rights" seems to me to denote squabbling over rights, and what we want is for one parent or another to have authority. Do we need the two words?
If parental powers are to be separate and equal, and if parents separate without agreeing who is to have custody of the children, that may increase the incidence of kidnapping. The Minister will no doubt agree that it should be an offence and an actionable civil wrong for any person to remove a child under the age of five from the custody of his father or mother without the consent of the parent or a court. The Paignton case has been referred to and a lot of kidnapping is going on at present.
Since the enactment Section 2 of the Infants Custody Act 1873 it has been clear that a separation agreement between spouses may include provision for someone other than the father to have custody and care of a minor but, quoting Re Besant, 1879 and Besant v. Wood, 1879, the courts will not enforce such an agreement if they do not consider it for the benefit of the child. However, the attention of the other place was drawn to the ante-nuptial waiver which might be required by the members of a religious community from someone who is not a 442 member of that community. Can the Minister say something about that matter because it did not seem to me to have been settled in the other place? It might revive sectarian litigation about authority over young children, which in England and Wales has been quiescent, while we know the results of the practice in the past in Northern Ireland.
In Clause 1(5) the last words are:any other person having the custody of the minor ".Does that mean factual, rather than legal custody or care? Suppose that A divorces B, and B is given custody of the children and remarries. Should B die before appointing a guardian in her will, A will be the guardian even though he may not have seen the children for years, or even live in Britain. I should be grateful if my hon. Friend would clear that up.
Clause 1(5) might mean that B's second husband, with whom the children have been living, can apply to be appointed a guardian and retain custody of the children, even against the natural parent with whom contact has been lost. As I understand it, an application can be made under the Guardianship of Minors Act 1971, but only if a minor has no parent or guardian.
Clause 7, which I gather is consolidation, is excellent.
The Minister has been clever in anticipating what I was going to say about magistrates' clerks. I received his letter only today. My secretary rang me in a panic, but I received it in time. Clause 6(2) requires the reporting officer to give evidence on oath. Thus, if there were a typing error, the probation officer concerned would have to appear in court. This provision seems unnecessary, because it says that the court has no discretion even to disregard a point which is made in error and which is not disputed by either party, or which has little or no relevance or importance.
The magistrates' clerks consider that the requirement that the report should be read aloud in every case should not be repeated in the Bill and that Section 4 of the Matrimonial Proceedings (Magistrates Courts) Act 1960 should be amended to allow reports to be read silently if that is thought to be more appropriate. This is a practical point, and 443 its acceptance would make no real difference to the Bill. My hon. and learned Friend might consider taking some action on it.
Then there is the case of "split orders". It is important that this issue should be dealt with in this Bill, unless my hon. and learned Friend can produce a strong argument against that being done. It appears that an order can be made giving custody to one parent, and care and control to another. As I understand it, in such cases the magistrates' court has no power to order a parent given custody to pay maintenance to the other parent who looks after and maintains the child. Surely that simple point could be dealt with. I shall not press some of the points that I have made, but some are justifiable, and I suggest to my hon. Friend that he should consider dealing with these "split orders".
This is not just a women's liberation Bill, but a Bill to liberate men, because it gives equal authority to both. I agree with the hon. Member for Norwood. I should have liked to have seen some of the Houghton Committee recommendations in the Bill, but, that might have meant that the Bill would not become law this session, which I hope it will.
Clause 2, together with Schedule 2, confers on the courts the power to order a minor under 16 years to be under the supervision of a local authority—and this is where I join the hon. Gentleman— because it also refers to "the probation officer" in respect of England. In Scotland it is just the local authority. I hope that we can delete the words "probation officer". These officers are overworked, and too few in number.
I welcome the Bill because it puts deserted women, in particular, on the same footing as the widow and the woman with an illegitimate child. Until now, women with no knowledge of where their husbands are, and who have not seen their husbands for years, have had to go to court and get custody of their children. In provincial towns this could lead to a great deal of publicity. Where the evidence can be given silently, it is marvellous for the children if that is done, because it is unfortunate if home life is exposed to their neighbours.
Does my hon. and learned Friend think that with this Bill, and with the Domicile 444 and Matrimonial Proceedings Bill which has been given a Third Reading, there will be more cases like the Desramault case? In other words, in a similar case the mother would not have to go to court because she would already have joint custody of the child, whereas the husband who had never seen the child would have to go to court. If the mother could choose her own domicile in Great Britain there would be no necessity for the child to be taken from one country to another. I hope that my hon. and learned Friend will say that that will be the result of the two Bills which are now going through Parliament.
I thank my hon. and learned Friend for his trouble in explaining the Bill and I hope that the Committee will give it a Second Reading.
§ 11.34 a.m.
§ Mr. Robert C. Brown (Newcastle-upon-Tyne, West)
I support the Bill. Any Bill which increases the rights of women is a good Bill. It is a pity that in 1973 we should be occupied with Bills affecting the rights of women. By this time women should have full and equal rights with men.
I do not complain about anything that is contained in the Bill, but rather about what is not in the Bill and should have been there. The Government must have known of my intention to seek to intro-troduce, under the Ten Minute Rule, a Private Member's Bill to safeguard the interests of children who might be removed from the jurisdiction of our own courts in custody cases such as the Desramault case. I have twice raised this case in Adjournment debates, and I am disappointed that the Government have not included in the Bill a clause on these lines.
A major injustice was perpetrated on my constituent Linda Desramault by Gos-forth magistrates' court. The magistrates' decision was almost immediately roundly condemned by the Lord Chancellor, who subsequently roundly condemned it again in a speech he made to a meeting of magistrates.
It might be argued that the Lord Chancellor has so roundly condemned the magistrates' decision that it is unlikely that a similar decision will ever again be taken. In the Desramault case there was 445 an incompetent solicitor, a fairly inexperienced clerk and two magistrates who were determined to reach an abysmally bad judgment. In working on the case for so long I have seen the agonies of Linda Desramault and, in recent weeks, what I feared for so long, the insecurity of the child which has arisen as a direct result of the Gosforth magistrates' decision and the to-ing and fro-ing which she has had to undergo in her three years of life.
If the Government are not prepared to insert a clause at a later stage along the lines I shall suggest, I am determined to pursue this matter by means of a Private Member's Bill. It is nonsense that a Private Member should have to introduce a Bill to safeguard the interests of children and parents when the opportunity to do so is before us in this Bill.
No child in future should ever be put to the risk to which poor Caroline Desramault has been put. It would be criminal for us to allow this opportunity to slip by. All that is needed is a simple clause stating that in child custody cases, where there is the possibility of the child being removed from the jurisdiction of the British courts a stay of execution of ten or fourteen days must apply. That would give the necessary time for the parent to prevent the child from being whisked away to a foreign country. That is all I ask. I know the strong arguments about the Lord Chancellor's condemnation of the Desramault decision, but if there is the tiniest possibility of another poor little individual being put at the same risk as Caroline Desramault we shall be failing in our duty if we do not take this opportunity to prevent that from ever happening again.
§ 11.38 a.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I am tempted to accept the implied invitation of the Minister of State to delve into the law of Scotland, but I shall resist that, especially in view of the absence of the Undersecretary of State.
The Minister gave us a detailed and good account of the history and development of this situation. He tried to take credit for the Bill having derived from a Conservative Report "Fair Shares for the Fair Sex" and from the Tory manifesto 446 but, like all useful legal measures, the Bill can claim parentage from both political parties, not only from "Fair Shares for the Fair Sex" but also from a document called "Discrimination against Women" issued by the Labour Party, which is largely to the same effect.
The Bill, which makes for equality between husband and wife in the guardianship of children and enables disputes about children to be submitted to the courts without the necessity for the separation of the parents, is a useful measure, but its importance does not appear to be recognised by the Women's Lib movement, from which I have heard no ecstatic welcome for it.
In introducing the Bill in another place, the Minister of State spoke almost apologetically of the indigestible appearance of the measure. To a layman—and possibly even to a lawyer—the Bill appears to be a mass of verbiage. I have often critici-cised the detailed, involved and almost incomprehensible language in which our Acts are couched, yet the draftsmen continue to use such incomprehensible language. I suppose that a lawyer should not complain, but it is a pity that our laws are not framed in simple language.
I can point to dozens of examples in the Bill where the most involved language is used. Often there are included quite unnecessary words, presumably ex abundanii cautela.
There were criticisms in another place of Clause 1 (2) by the noble Lord, Lord Simon of Glaisdale. The Subsection says:An agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) above shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs, provide for either of them to do so; but no such agreement between husband and wife shall be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it.The noble Lord was successful in having deleted from the mass of verbiage the reference originally contained in the Bill to ante-nuptial agreements. The noble Lord was right in saying that the cardinal principle is the welfare of the child, and that subsection (2) is unnecessary and should be deleted. I hope that in Committee something might be done about that.
447 On Clause 2, I emphasise what my hon. Friend the Member for Norwood (Mr. John Fraser) said. The clause gives power to the court to order a minor under the age of 16 to be placed under the supervision of a local authority or a probation officer. It is a criticism that a criminal matter is not involved here. I read with admiration the words quoted in another place from the speech made by the Minister of State to the Association of Children's Officers, when he spoke of the increasing burden being placed on probation officers. Because of the greater resources of the social services of local authorities the duty imposed by the clause should be confined to local authorities and should not be placed on probation officers.
I should like to add a word or two to what my hon. Friend the Member for Norwood said about the provisions that are not contained in the Bill. There is a great deal of force in what the Minister said about the difficulty of inserting into the Bill, for example, provisions relating to illegitimate children. I was interested in what my hon. Friend the Member for Newcastle-upon-Tyne (Mr. Robert C. Brown) said about the stay of execution, and I hope that the insertion of such a provision may be considered.
My hon. Friend the Member for Norwood made a powerful speech about the recommendations of the departmental committee. The importance of his point is that we criticised these matters many years ago. It has taken more than 50 years to introduce this comparatively small but useful measure. Why can we not now take this opportunity of examining these provisions carefully and of seeing whether some of the useful recommendations which have been made can be inserted in the Bill? I strongly support my hon. Friend's plea.
I was glad to see that, in the interests of my long-suffering sex, equal rights on the part of married women are to be matched by equal liabilities. I very much support the Bill.
§ 11.46 a.m.
§ Mr. Edward Lyons (Bradford, East)
I congratulate the Minister on promoting the Bill. Last year I asked him in the House whether he would introduce legislation to this effect. He then promised to do so, assuring us that it would be in 448 this session. That promise has certainly been honoured.
I also welcome the formula that the rights of women should be equal, but separate rather than joint, which could produce a great many complications.
As has been said, it has for a long time been obvious that women are discriminated against in respect of their children. It has been a monstrous obser-vancy of our law for many years that women have had no rights whatsoever in respect of their children in the absence of a court order, whereas a husband, however little his interest in and however much his disinclination to be bothered with his child, has had full custodial rights in the absence of a court order.
I also welcome the quid pro quo to the males of our society, in that in future they can seek to obtain maintenance for their children—
§ Mr. Lyons
—from the mothers of those children, although one appreciates that this will seldom be invoked. Because of the growth of sexual equality, because of the growing number of women occupying positions of responsibility and because of the growing number of professional women and women who have inherited wealth, this is a useful step.
§ Mr. Lyons
I shall take guidance from the Minister about that, but I have never known of a claim by a husband for maintenance for a child. A husband can claim maintenance for himself from his estranged wife, but I was not aware that he could claim maintenance for a child from her. If that is so, provision in the Bill seems otiose. I can hardly imagine that it is so. However, no doubt the Minister will deal with that. I think that the hon. Lady is in some confusion.
§ Mr. Lyons
The question of a woman's right to obtain a passport for her child has been raised from time to time. We are told that the practice has recently been changed in that regard. As I recollect it, the passport application form. 449 contains no suggestion whatever that a woman has a right to have her child included on her passport. It may be that the Foreign Office—or the Home Office —now permits children to be put on to their mother's passport on her application, but that is a secret largely within Whitehall. I doubt whether there are 10 solicitors in Britain who are aware of this change of practice. Indeed, the noble Lord, Lord Colville of Culross said in Committee in the other place that that was not the practice at the time of a ministerial reply five years ago.
Now there has been a change in the practice, but it is not enshrined in any legislation, and no one knows about it. The way to let people know about it is to put it in an Act or, alternatively, to put it on the passport application form. Busy solicitors cannot be expected to know everything. The noble Lord, Lord Colville is a brilliant lawyer but on Second Reading he was not aware that mothers have rights in respect of their children being included on their passports. He had to make inquiries of his civil servants. If he did not know, what possible hope is there that solicitors will know of this when they are advising clients? I do not believe that at present one woman in this country is aware of this change in practice.
There has been correspondence in The Times recently about discrimination against women in relation to the inclusion of children on their passports, clearly in relation to the change of governmental attitude. Something should be done to publicise this change. As a first step, the passport application form should be changed. As I recollect it, that form contains a section dealing with the insertion of children on the father's passport, but there is no suggestion that a mother has similar rights.
There has been reference this morning to children who are taken abroad by a parent without the consent of the parent remaining here. Many Members of Parliament have had cases where constituents have complained about the difficulties of rescuing children who are abroad. I understand that legal aid is not provided for proceedings undertaken abroad for this purpose. If that is so, that is something which might usefully be altered without great cost to the Government.
450 The housewife has no possibility of raising the funds for pursuing her action abroad, except with the assistance of newspapers in remarkable cases. It would be useful if legal aid could be extended within narrow terms to cover this situation. With a growing cosmopolitan society in Britain and the shrinking of the world, there will be many of these cases. The present machinery for ensuring that children are kept in the country unless both parents consent to their going abroad is inadequate.
It is curiosity about the new Foreign Office procedure in relation to passports that, in addition to the father being able to take the child out of the country without his wife's permission, in future the mother is able to take the child out without the husband's permission—unless either parent has foreseen the situation and has obtained a court order or taken some other action of that sort to prevent that. In future there will be instances of women taking their children out of the jurisdiction without their husband's authority. There is, therefore, equality of injustice here. Previously only the father could do this, but now we are saying that the mother can take the child out of the country without the consent of the father. That is a curious kind of equality which we are promoting. There ought to be an examination now in relation to the right to take children out of the jurisdiction on the say-so of one parent.
It could be argued that the Government have not met the objection about passports. All that the Government have said is not that both parents should consent, but that either can take the child abroad unless there has been a court order or some preliminary action of that sort. The trouble about a woman taking preliminary action is that she often does not know that she has the right to do so.
I make those points in reservation, but I think that the Bill is a very useful step forward and I welcome it with great enthusiasm. It is not a Bill which will strike the headlines, but any lawyer knows how women suffer through an absence of rights in relation to their children. This makes a good change and the Government deserve congratulations.
§ 11.56 a.m.
§ Mr. Carlisle
With the leave of the Committee, I should like to reply, first, 451 by thanking hon. Members for giving a general welcome to the Bill, which is important in principle even if its practical events are fairly small. This is a Second Reading Committee, but, listening to the various points being raised, I felt that it was clearly the Committee Stage. In general, most of the points raised were Committee matters. However, I shall do my best to answer them, although I do not undertake to be able to answer without advice the plethora of points put by my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers).
Going quickly through the points in the order in which they were raised, I start with the points raised by the hon. Member for Norwood (Mr. John Fraser) in his lucid and interesting speech. The hon. Gentleman—and other hon. Members, too—asked what the position would be in relation to passports. He asked specifically whether it would mean that the husband would be able to apply without the wife, and the wife without the husband, or that they would both have to apply.
I am told that at present the provision is very much as stated by my hon. Friend the Member for Plymouth, Devonport, namely, that in practice the passport authorities accept applications by either party. But whatever the present position may be, and whatever the clear legal position may be—there is doubt about it —we understand from the Foreign and Commonwealth Office that, when the Bill becomes law, that office will grant a standard passport on the consent of either party, unless objection is lodged, supported by evidence, that the objector has been awarded custody or care and control by a court, or that the child is a ward of court, or subject to a High Court order that the child shall not be taken out of jurisdiction. As at present, once passport facilities have been given in respect of a child, it will not be possible to revoke them.
As I understand the present position, in practice the passport authorities grant a passport on the application of one parent, although it is not clear whether they are legally entitled to do so, certainly on the application of the mother. But it is clear that they will be entitled to do so when the Bill has gone through 452 Parliament, and they will in practice do so.
The hon. Gentleman raised another point, which was also raised by my hon. Friend the Member for Plymouth, Devon-port and by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman). That was the reference in Clause 2(2) to the power to place a child under the supervision of a probation officer. It was argued by the hon. Gentleman and others that the reference to the probation officer should be removed because there was a taint of criminality in being put under the supervision of a probation officer which was not involved in a child being put under the supervision of a local authority. I have listened to what has been said, and I am prepared to consider this matter again, but I must make it clear that it was looked at and rejected when the Bill was going through the other place.
We are conscious that there is pressure on the resources of the probation service. Equally, we are conscious—it is not a departmental responsibility of the Home Office—that there are pressures on the resources of the local authorities, that the new departments set ups as a result of the Seebohm Report are not all up to the establishment strength that they would wish to be and that there is a shortfall on local authority social workers. It is for that reason that the Government have made it clear—the hon. Gentleman referred to a speech that I made on the Children and Young Persons Act—that they would raise the age when they were satisfied that local authorities were capable of meeting the job. We have recently raised the age at which children must be put under the care of the local authority rather than probation officers and we would rather approach the position by gradually raising the age.
My noble friend the Minister of State in another place pointed out that the effect of removing the words "probation officer" from the Bill would be to impose on the social service department an additional 4,000 children who as a result of matrimonial proceedings are being supervised by the probation service. Equally, by using the words "probation officer",. we are in line with what the matrimonial proceedings legislation set out. We are anxious to reduce the load on the probation service, but I am quite prepared, if 453 an amendment is put down, to look at it again. I cannot say more than that. I am prepared to invite officials in the Home Office, in consultation with the Department of Health and Social Security, to look again at this issue.
The next point which the hon. Member for Norwood made was the very general one about bringing in those recommendations in the adoption report which relate to the guardianship of children. The hon. Gentleman spoke of the "tug-of-love" cases and of the various recommendations in that type of case concerning the foster parent, but I think that in the examples which he gave the hon. Gentleman himself raised the difficulties to which reference has been made. Of course it is true to say that the right of foster parents to apply for guardianship of a child whom they have had in their care for 10 or 15 years appears, on the face of it, to be a simple and straightforward right—and where the natural parents are agreeable to that the Bill raises no problem—but were that right to be written into the Bill in those cases where the natural parents disagreed, one would come to the fundamental issue of the adoption law as to what should be the rights of natural parents over children, as against those of long-term foster parents.
The issue opens up a wide area of debate which is by no means lacking in controversy. That is why all the recommendations in the adoption report must be looked at as a whole, rather than that we should take individual points and say, "This deals with guardianship, we will slip it into the Guardianship Act". It is interesting to note that my hon. Friend the Member for Plymouth, Devonport—and the hon. Member for Pontypool (Mr. Abse), who is not present today—has not herself pressed this on the Government, although I am aware that the points made by the hon. Member for Norwood have been made by various outside bodies. I do not think that it would be right to deal with this issue at this time, but I point out to the hon. Gentleman that under the 1971 Act, as amended by the Bill, the courts can grant custody to a foster parent or to any other person. It is only the parent who can apply for custody, although the court on that application can grant it to the foster parent.
454 My hon. Friend the Member for Plymouth, Devonport, referred to the fact that in South Scotland a child cannot be put in the care of a probation officer. The reason is that in Scotland there is no separate probation service. It is merged in the local authority, which means that in these as well as in criminal cases the child is committed to the care of the local authority.
Coming to the Desramault case, I am afraid that I have to disappoint my hon. Friend and, indeed, the hon. Member for Newcastle-upon-Tyne (Mr. Robert C. Brown), when I say that the Bill does not affect the Desramault case, and perhaps I may explain why. First, if the parties are separated and are in dispute over the custody of the child, if one party wishes to extinguish the rights of the other an application will still have to be made to the courts. Secondly, in any event the application in the Desramault case was made not under the Guardianship of Minors Act, but under the Matrimonial Proceedings Act. It was an application by the wife for maintenance for the child and, I think, for maintenance for herself.
It is true that the Bill, had it been an Act, would have provided for Mrs. Desramault equal custody of that child so that she would not have had to apply to the court for custody as such, but if she had wished to apply for maintenance for the child from her husband she would still, unless it was being paid voluntarily —and it was not—have had to apply to the court for such maintenance. On the application going to the court the court has the power, and it will continue to have it, to grant custody to either parent. The Bill does not affect the rights of the court on any application, so even under this Bill there is no doubt that Mrs. Desramault would have had to make application to the court.
The hon. Member for Norwood raised the matter of the reciprocal enforcement of custody orders. I must tell the hon. Gentleman that we have looked at this. The real difficulty is that many other jurisdictions do not, as we do in this country, have the fundamental concept that in deciding the custody of children the welfare of the child is paramount, and this raises difficulty for the enforcement of custody order in this country of orders 455 made in another country where the interests of the child are not paramount.
Suppose a husband obtains an order for custody in a country where he is entitled to custody as such, and the wife comes to this country. It would be difficult to ask the courts of this country to enforce this order because it was clear to them that the wife, rather than the father, should have custody. There are difficulties about this, and we cannot avoid them by unilaterally legislating in this country.
This matter was raised at the European Ministers of Justice meeting last year— I think by the Austrian delegate. On that occasion my noble Friend the Lord Chancellor and also the representative from France, spoke strongly on this matter, and it was agreed that, through the Council of Europe, the issue should be looked at as it related to European countries, and various solutions were put forward. There are difficulties, but we would insist that the courts should be concerned with the welfare and interests of the child.
As I am on the Desramault case, let me come to the point made by the hon. Member for Newcastle-upon-Tyne about an automatic stay of execution. As he knows, the court has the right and the power to make a stay of execution should it wish to do so. It sounds, on the face of it, attractive to say that the court must give a stay of execution if there is the possibility of a child being taken out of its jurisdiction, but if that is done it will apply even in cases where there is no dispute between the parents. It may be that the mother who wishes to go abroad applies for custody, and the husband is willing that she should have it, but she would be prevented from taking the child abroad.
I shall not attempt to distribute blame, but will merely repeat the factual matter on which the hon. Gentleman commented. The solicitor acting for Mrs. Desramault did not make an application to the court, as she could have done, for a stay of execution to be made pending an appeal. I am not sure whether an automatic stay of execution is the right way to approach it. Secondly, if, under this Bill, the procedure would apply only to guardianship cases, it would not apply to the equal 456 or more prevalent application which is made under the Matrimonial Proceedings Act on behalf of the wife and children.
The best set of laws cannot always prevent kidnapping or the removal of children from the jurisdiction of a court. Therefore, anxious and desirous as we are to avoid the tragedy of incidents such as the Desramault case, I am not sure that the matter could be done as simply as the hon. Gentleman suggests.
My hon. Friend the Member for Devonport raised the question of the kidnapping of children. I must have notice of that question. It is an offence to kidnap a child, and I am not sure whether that offence would not apply against the party who had not the custody of the child.
My hon. Friend also asked about antenuptial settlements, and the hon. and learned Member for Stoke Newington and Hackney, North asked about Clause 1(2). I said nothing about that subsection because I hoped that if I said nothing about it at this stage no one else would say anything either. I must tell the hon. and learned Gentleman, who suggested that the simple answer was to remove Clause 1(2), that if it were omitted it is doubtful whether separation agreements would be enforceable.
Lord Simon thinks that in the new situation created by Clause 1(1) such agreements would be enforceable anyway without the necessity for Clause 1(2) but, that, with respect to the noble Lord, we consider is debatable and depends on the view that one takes on the basis of the common law rule which invalidates agreements for giving up the custody of children, and it would be wrong, therefore, to leave the legal decision of separation agreements uncertain. We may come back to that at a later stage, and I hope then to be able to give the hon. and learned Gentleman a slightly longer explanation. As I understand it, Clause 1(2) states that agreements to give up custody rights over children shall be unenforceable except in certain circumstances, and the whole issue is whether or not ante-nuptial agreements are included. Perhaps I may make one other general point on the calling of probation officers under Clause 6(2), and on split orders.
We do not dispute the merits of the argument which the justices' clerks have 457 put forward, but it would clearly not be sensible to amend the guardianship law without at the same time amending the equivalent section of the Matrimonial Proceedings (Magistrates' Courts) Act 1960. To amend proceedings under that Act would be outside the scope of the Bill, and if we made the amendments for which my hon. Friend asked a probation officer would not need to be called in guardianship proceedings, but he would still have to be called in proceedings brought under the Matrimonial Proceeding (Magistrates' Courts) Act. As I said, the whole question of matrimonial proceedings is being looked at by the working party of the Law Commission, but I can give the assurance that we shall draw these matters specifically to its attention.
I am sure that I am right in saying that the same position applies in the case of the split order. It is true that there is no power to order maintenance to be paid to the person who has the care and control when the custody rests in the other parent, but if we made the amendments asked for we should be in the position that there would be power if guardianship proceedings were taken, but not if matrimonial proceedings were taken. Therefore, it is better that we should look at the whole matter.
My hon. Friend, and the hon. Member for Bradford, East (Mr. Edward Lyons), asked whether there is power to order a wife to pay maintenance to her husband in respect of a child. I bow to my hon. Friend's tremendous knowledge of all the details of the law of guardianship, but I am bound to say that on this occasion I come down on the side of the hon. Member for Bradford, East, in saying that the provisions of this Bill are not otiose. The position is that if proceedings are brought under the Matrimonial Proceeding (Magistrates' Courts) Act and the court grants the children to the husband, it can order the wife to pay maintenance, but if the proceedings are brought under the Guardianship of Minors Act 1971, the Bill makes it absolutely clear that an order for maintenance of the children can be made only against the husband in favour of the wife. It is therefore necessary to amend that part of the Bill to bring proceedings under the Guardianship of Minors Act into line with what, as my hon. Friend rightly said, has applied 458 since 1960 in respect of the Matrimonial Proceedings (Magistrates' Courts) Act.
I do not know, Mr. Fitch, whether I have answered all the points that were made. My hon. Friend asked whether the wordshaving the custody of the minorin Clause 1(5) referred to physical or legal custody. Having looked quickly at them, there is no doubt in my mind that those words must mean custody granted by a court order. The hon. Member for Bradford, East asked about legal aid in foreign proceedings. At the moment, legal aid does not apply to proceedings abroad, and I cannot hold out any promise that it will do so. Granting legal aid in proceedings abroad for actions relating to custody of children would raise issues going far beyond the scope of the guardianship law. It could hardly be introduced in a side way into this Bill. For one thing, it would require a money resolution, which is not attached to this Bill.
§ Mr. Lyons
I was not suggesting that it could come within the purview of this Bill. I was hoping the hon. and learned Gentleman would say that his right hon. Friend the Secretary of State was looking at this problem with a benign eye, since there will be many cases in which women will have no chance of pursuing their children abroad unless they get financial assistance from the State.
§ Mr. Carlisle
I shall draw the hon. Gentleman's views to the eyes of my colleagues in the Treasury, which I think are probably more important, and, equally, to those of my noble Lord, the Lord Chancellor, since this is a civil matter and the Lord Chancellor is responsible for civil legal aid.
My final comment is that I am grateful for the general welcome which the Bill has been given. The hon. Gentleman the Member for Norwood and the hon. and learned Gentleman the Member for Stoke Newington and Hackney, North both made the point that it was all very well for me to say that the Bill is the result of a recommendation by a Conservative Party Committee, but that it is equally Labour Party policy. All I can say is that the difference between the two Governments is that we not only made this our policy, but have got things done about it.
§ Dame Joan Vickers
We must be fair about this. It was the Labour Government which made me bring my Bill through and got it to Report stage, and it was the Conservatives who brought in 40 Members and talked me out.
§ Mr. Carlisle
I am aware that my hon. Friend is right. That is why it is unwise to leave these matters to Private Members. Both parties can claim to be sires of this Bill, but the difference is that the Conservative Party has chosen to give birth to a live baby.
I have great pleasure, therefore, in again commending this Bill to the Committee, but before we adjourn may I thank you, Mr. Fitch, for presiding over the Committee today. I do not pretend that you have had an arduous task or that your powers of authority and leadership have been put greatly to the test, but I hope that you have found it in-
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Fitch, Mr. Alan (Chairman)||Haselhurst, Mr.|
|Brown, Mr. Robert C.||King, Mr. Evelyn|
|Carlisle, Mr.||Lyons, Mr. Edward|
|Cordle, Mr.||Monro, Mr.|
|Dunn, Mr.||Vickers, Dame Joan|
|Ellis, Mr.||Walder, Mr. David|
|Fraser, Mr. John||Ward, Dame Irene|
|Goodhew, Mr.||Weitzman, Mr.|
§ teresting, and certainly it has been a pleasure to have you in the Chair.
§ Mr. Fraser
I should like to associate myself and this side of the Committee with those remarks. You, Mr. Fitch, are a very suitable guardian to have custody of our proceedings. You have maintained equal rights between the parties, and we have all been very glad to submit to your jurisdiction.
§ Question put and agreed to.
§ Committee rose at twenty-four minutes past Twelve o'clock.