§ 10.30 a.m.
The Under-Secretary of State for the Home Department (Dr. Shirley Summer-skill)
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Domestic Proceedings and Magistrates' Courts Bill [Lords] ought to be read a Second time.The main purpose of the Bill is to reform the law relating to matrimonial proceedings in magistrates' courts, and to bring it into line with the matrimonial law of the higher courts.
There are two separate but overlapping matrimonial jurisdictions. One is in the magistrates' courts. This jurisdiction operates at a stage while a marriage is still in existence, before it has broken down irretrievably. The other is operated in the High Court and divorce county courts. These courts may grant decrees of divorce, nullity and separation.
1596 There are considerable differences in the law applied in the two jurisdictions which, in effect, place the applicant to the magistrates' court at a disadvantage. The differences were criticised by the Finer Committee in its Report on One-Parent Families. The Bill removes them.
The present situation has arisen because the reforms made in divorce law in 1969 and 1970 were not carried through into the matrimonial law administered by the magistrates' courts. Whereas a divorce may now be obtained if the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her, a person applying to a magistrates' court for a maintenance order because of the unreasonable conduct of the other party to the marriage has to establish that the other party is guilty of one or more of a number of listed matrimonial offences, such as persistent cruelty, adultery or being a 1597 habitual drunkard or drug addict. The Bill now brings magistrates' courts matrimonial law into line with divorce law by substituting a reference to unreasonable conduct for this list of matrimonial offences.
There are two other grounds in the Bill for making an order. The first of these is desertion, which is also a ground in existing magistrates' matrimonial law, and, if it lasts two or more years, for a divorce. The second is failure to provide reasonable maintenance for the applicant. In existing law it is necessary to show that a failure to provide reasonable maintenance is due to wilful neglect.
I hope that the Committee will bear with me while I outline the Bill and mention the new provisions. It is a very long Bill but the new provisions can, I hope, be summed up fairly quickly.
Part I provides a new code for matrimonial proceedings in magistrates' courts. This is in place of the existing law embodied in the Matrimonial Proceedings (Magistrates' Courts) Act 1960, which the Bill repeals. The new matrimonial code in Part I is in most respects consistent with the provisions of the reformed divorce law provided by the Matrimonial Causes Act 1973. There are some differences, because the magistrates' jurisdiction operates at a stage before a marriage has broken down, so that its objectives and those of the divorce law are not and cannot be consistent in all respects. But wherever possible the Bill provides consistency.
Parts II and III of the Bill carry through the reforms of magistrates' matrimonial law made in Part I into other similar legislation and so provide consistency between these proceedings as well. Part III also contains some new provisions concerning the international enforcement of maintenance. Part IV contains procedural provisions. Some of these also are new.
With regard to the new provisions, Clause 1 provides new grounds for seeking a magistrates' matrimonial order in place of the present list of matrimonial offences. The new grounds are: first, failure to provide reasonable maintenance for the applicant; second, failure to provide reasonable maintenance for a child; third, behaviour such that the applicant 1598 cannot reasonably be expected to live with the respondent; and fourth, desertion.
Clause 2 gives the magistrates' court a new power to order a lump sum payment not exceeding £500 in matrimonial proceedings in addition to the existing power to order maintenance.
Clause 3 provides statutory guidelines for the matters which the court is to take into account in deciding whether to order financial provision. This clause replaces the provisions in present law under which an applicant to a magistrates' court who has committed adultery is barred from receiving maintenance and provides instead that, as in divorce law, the court should take the parties' conduct into account only to the extent which it is just to do so.
Clause 6 introduces a new accelerated procedure for obtaining a magistrates' order where the parties are in agreement about financial provision.
Clause 7 empowers the magistrates' court to make an order for the custody of a child until he attains the age of 18, instead of the present limit of 16, and so brings magistrates' courts into line with the higher courts in this respect. The clause also empowers the magistrates' court to make a joint order under which one party to the marriage is given legal custody of the child but the other party is allowed to retain some or all of his parental rights except for the right to the actual custody of the child.
Clause 12 provides a means by which people holding parental rights and duties jointly and who disagree may apply to the court for an order resolving the issue in dispute.
Clause 13, which was added in another place, makes clear that in any proceedings under the Bill where the custody of a child is in issue, the welfare of the child is the first and paramount consideration.
Clauses 14 and 15 provide the new powers for magistrates to make personal protection and domestic exclusion orders and to issue a warrant of arrest for breach of such an order.
Clause 30 gives the magistrates' court a new power, where it makes a custody order in matrimonial proceedings, to direct that the child shall not be removed 1599 from England and Wales. This corresponds with the power already available to the higher courts.
Part III also contains new provisions relating to international enforcement of maintenance. Clause 49 enables courts in the United Kingdom, where they are enforcing an order made by a court in a Commonwealth country under the arrangements for reciprocal enforcement, to give effect to the intentions of the Commonwealth court as regards the date from which the order is to have effect.
Clause 53 extends the arrangements for intentional enforcement provided by Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972 so as to include maintenance payable to a former spouse. At present, these arrangements apply only where the parties are still married. The clause will enable the United Kingdom to give full effect to international obligations under a United Nations convention on the recovery abroad of maintenance.
Clause 56 enables free legal aid and advice to be made available to certain overseas applicants seeking maintenance in Scotland.
Part IV contains procedural provisions. Clause 70 alters the basis of jurisdiction in civil proceedings in magistrates' courts from the petty sessions area to the county.
Clause 73 increases the penalties for disobeying magistrates' orders other than for payment of money. Such orders will include the new personal protection and domestic exclusion orders provided by the Bill.
Clause 74 introduces a new comprehensive definition of the various proceedings—matrimonial, guardianship, affiliation, custodianship and adoption proceedings—which fall within the general definition of "domestic proceedings." This replaces the provisions at present scattered in a number of different enactments.
Clause 75 is an important new provision which requires that proceedings defined as domestic proceedings shall in future be heard only by magistrates who are members of a domestic court panel, which is to be specially appointed for this purpose. The setting up of a domestic court panel, on lines similar to the panels which already exist for hearing juvenile proceedings, will make it possible to 1600 appoint for cases of this type justices who are well suited to the work and wish to do it. It will also be possible to provide them with a specialist programme of training, and, through hearing domestic cases frequently, they will have the opportunity to build up considerable expertise.
Clause 76 amends the law relating to the persons who may be present during the hearing of domestic proceedings. It brings these provisions into line with the corresponding provisions for juvenile proceedings by limiting the persons who may be present to those directly concerned in the case, the Press and any person whom the court considers has reasonable grounds for attendance.
I shall now mention one important and topical provision in the Bill—protection for battered wives and children. The Bill creates important new powers for the protection of battered wives and children. It enables magistrates' courts to make two new types of order in cases where there is a danger of violence to one of the parties to the marriage or to the children. The court will be able to make a personal protection order, which will prohibit the other party to the marriage from using or threatening violence, and a domestic exclusion order, which is an order excluding the other party from the matrimonial home. These provisions give magistrates powers similar to the powers already available to the higher courts to grant injunctions. For the first time, they provide a summary means of obtaining relief in these cases. The provisions implement the recommendation made by the Select Committee on Violence in Marriage.
The Bill as it stands enables a magistrates' court to evict a violent party but does not enable a magistrates' court to make an order requiring the violent party to permit the other party to enter and remain in the matrimonial home.
The Law Commission in its report did not recommend giving magistrates such a power. During the debate in another place, the Government were asked to look at the matter again. It was pointed out that such a power was available to the county courts under the Domestic Violence and Matrimonial Proceedings Act 1976, and if such a power were not provided in the Bill a violent party who was excluded from the matrimonial home would be able to 1601 change the locks and prevent the other party from occupying the house.
The Government undertook to consider the matter further in consultation with the Chairman of the Law Commission. That we have done. The Law Commission has indicated that it would favour an extension in the provisions of the Bill to enable a court, where it makes a domestic exclusion order, to make a further order against the excluded party requiring him to permit the other party to enter and remain in the matrimonial home. Amendments to this effect will be put down by the Government in Committee.
A further matter discussed in another place was whether there should be an express provision in the Bill to make clear that a magistrate's domestic exclusion order did not affect the property rights of the parties. For example, if a man was sole owner of the matrimonial home and was excluded from it, the magistrate's order could not resolve property rights, which might also affect third parties, although it would, of course, prevent him from enjoying the right to occupy so long as it was in force. The Government undertook to consider this further. We now think it desirable, after consultation with the Law Commission, to make an express provision on this point. An amendment will now be put down in Committee.
The Government spokesman also mentioned in the other place that it might be necessary to make a corresponding amendment in the Domestic Violence and Matrimonial Proceedings Act 1976. That is not now necessary because of the recent judgment in the case of Davis v. Johnson in which the House of Lords made clear that an injunction granted under that Act does not affect the parties' property rights.
This is an extremely important Bill which reforms family law in magistrates' courts. This has in recent years been a neglected area of law yet it affects the lives of very many people. The provisions in the Bill implement recommendations made by the Law Commission, which carried out a thorough study of the subject and consulted widely before formulating its proposals. The Bill has been welcomed by the legal profession, social service bodies and other groups. 1602 Its proposals are to a large extent, I hope, non-controversial.
There have been some criticisms that the Bill does not go far enough, but they have to be set against what the Bill actually achieves. It will introduce consistency in an area of law which is complex and full of anomalies. It will simplify court proceedings, to the benefit of the public, the courts and legal practitioners. It will make it easier and less distressing for a wife to obtain a maintenance order in a magistrates' court and will give magistrates' new powers to make orders for the protection of wives and children against domestic violence. It also provides for the setting up of specialist domestic panels to hear domestic cases.
No doubt, hon. Members would like to see other provisions and they will be tabling amendments to the Bill, but it already runs to 84 clauses. Some limit has to be set to achieve the right balance between an inadequate Bill and one that is far too heavy.
§ 10.48 a.m.
§ Mr. Roger Sims
May I, first, on behalf of the Committee thank the hon. Lady for the very clear manner in which she has guided us through an extremely long and complex Bill.
Perhaps I might also take this opportunity to express our thanks for the courtesy extended by the Home Office in ensuring that all members of the Committee have a copy of the explanatory memorandum. For those of us who do not have the advantage of official advisers and who are laymen rather than lawyers, the more guidance we can have in these very complex matters, the better.
It is a common criticism of legislation in this House that it has been hastily prepared and ill-considered. However justified that criticism may be of a lot of legislation, it certainly cannot be made about this Bill.
As the Committee knows, the Bill stems orginally from a paper drawn up by a working party of the Law Commission which was circulated to a wide range of interested bodies who made their representations. Those, in turn, were most carefully considered by the Law Commission which produced its Report No. 77, with which the Committee will be familiar. It might be appropriate at this 1603 stage to record our thanks to the members of the Law Commission for their hard work in preparing the Bill.
Since the Bill was drafted, it has passed through another place where it has been revised, but despite the fact that it has gone through this very long process some Opposition Members feel that it may well be capable of yet further improvement.
Many of us would have liked to have had a Bill setting up family courts. This has been the subject of discussion, literature, reports and articles for many years. Everybody seems to think it is a pretty good idea, but we never actually get there. But at any rate, this is a step in the right direction. When we finally reach the stage of having family courts, I think it more likely that rather than a completely new court structure emerging, the family courts will be grafted on to our existing structure, probably rather more on the county courts side than on the magistrates' courts side. However, this Bill is a step towards removing some of the differences and anomalies between the various procedures and bringing into line to some degree not only matrimonial matters but guardianship and affiliation proceedings under the Children and Young Persons Acts, and so on.
It is important to emphasise that we are dealing here with the domestic courts. These are quite distinct from the other activities of magistrates' courts, especially in the criminal sphere. To that extent, they are rather more similar to the work in this area of the county court. It is unfortunate that so often domestic proceedings in magistrates' courts appear to be involved, by implication if not physically, with the criminal work of the magistrates' courts. Fortunately, most magistrates' courts try to hold separate sittings for their domestic proceedings, but it is not always done. Usually the proceedings are held in exactly the same court room as criminal proceedings, and this is all rather unfortunate in implying a similarity between the two, which does not and should not exist.
Some courts make a point of trying specifically to hold their domestic proceedings in different surroundings. Because, alas, the Home Office has not found it possible to provide sufficient funds for adequate court facilities, my own court has had to use a nearby church hall. It makes a point of using that church hall 1604 specifically for domestic proceedings, so that these are physically separate from the criminal proceedings of the magistrates' court.
Perhaps I might briefly run through some of the main clauses to which the hon. Lady referred. Clause 1 is certainly valuable in removing the idea of the matrimonial offence from these proceedings. Some people feel that some of the elements in the Bill still retain the idea of a matrimonial offence. This is a matter which, I think, we can discuss further in Committee. I felt that the Law Commission put the arguments very well and, as the hon. Lady indicated, we are discussing here the early stages of a breakdown, or apparent breakdown, of a marriage and not the divorce proceedings where, perhaps, a rather wider range of grounds for the separation could exist.
Clause 1 also refers to "child of the family". This is a phrase which is being increasingly used in legislation of this type, rather than the older expression, "child of the marriage". This has certain implications. For example, if a woman brings to a marriage a child by a previous liaison and the husband simply treats that child as a step-son or step-daughter, that child become a child of the family, although it is clearly not a child of the marriage. If that child then becomes the subject of, say, care proceedings because there is, perhaps, a question of ill treatment, or possibly because the child has passed through the juvenile court and committed some offence, and the child is sent to a community home, the local authority has the power to require the parent to make some sort of contribution by way of maintenance. But only the parent—in the instance that I have given, the mother of the child. The stepfather is in no way responsible.
However, if the couple are separated under the 1960 Act, the stepfather can be made to pay maintenance. Indeed, he can be made to pay maintenance to whomsoever the court specifies. It could even be that maintenance would be paid to a man with whom the wife had now chosen to live. Indeed, in the extreme case she might have chosen to live with her original lover—the natural parent of the child—with the stepfather being required to pay maintenance.
It is a curious anomaly that if in a marriage such as I have described the wife 1605 were to die, the stepfather would be under no legal obligation to that child. But if the marriage dies, the stepfather is under a legal obligation. The concept "child of the family" affects not only step-parents but private foster parents and custodians under the Children Act. By bringing it into the Bill, we are perpetuating this problem, which we ought to discuss in detail in Committee. I shall not pursue it further now, but we ought to look at it rather more closely.
Clause 3 refers to the criteria that the court should adopt in deciding the amount of maintenance. Reference is there made, among the criteria, to the means of the parties to the marriage. Here I hope that in Committee we may consider the situation where, although a second wife is not considered party to the first marriage, her means are in effect taken into account when maintenance is decided. I am sure that members of the Committee have had experience in their constituencies of cases in which the wife of a second marriage goes out to work and her income is taken into account as part of the income of the household in deciding how much the husband can reasonably pay for maintenance of the children of his previous marriage. In some cases, the women simply say "Why should I work to pay for the children of my husband's first marriage?" There are various implications of such a situation, but I suggest that we ought to look at it.
Clause 12 is very interesting in giving the opportunity for parties to come to court to settle disputes. However, it may be desirable to try to define what is meant a little more closely, because one can see the court's time being wasted on relatively trifling matters. We all know that, when there are separations, quite small differences of opinion loom large in the eyes of the parties, but it does not seem desirable that a good deal of court time should be spent in dealing with such relatively trivial matters. It may be worth our while in Committee trying to improve the wording to get over that difficulty.
I turn to Clause 14. If I omit clauses, it is clearly because I intend not to go through every one of them, but only to headline matters that I think merit particular consideration. Clause 14 is important in that it introduces the idea—the expressions are not, I believe, used 1606 in the Bill, but they were used in the Law Commission's Report—of the protection order and the exclusion order.
As the Bill stands, there is an absence of any power to require one party to be allowed to enter and remain in the property from which he or she has been excluded by the other. This gives rise to the question of property rights to which the hon. Lady referred. I am glad that this matter has been considered, and that amendments will be tabled.
We ought also to introduce a means of ensuring that one party has the right to occupy or, vice versa, to demand exclusion of the other party from, part of the property rather than the whole of the property, particularly where one party of the marriage has a bedsitter within the house or something of that sort. I believe that that is not at present covered.
Jumping now to Clause 72, this introduces a concept to which the Law Commission did not refer, namely the idea of domestic court panels—along the lines, as the hon. Lady said, of juvenile court panels. I imagine that the Home Office will receive, as I have, quite strong representations both for and against this idea. One can argue as the Minister did, that there is a case for some magistrates specialising in this subject, having training, sitting regularly and handling such cases on a fairly frequent basis, on the same lines as a juvenile panel.
On the other hand, there is the argument that magistrates as a whole should not be excluded, as about two-thirds of them would be, from handling this important type of work for which they are well suited. No doubt, we shall argue the matter in more detail later, but I hope that we shall be told how these panels are to be appointed—"appointed" is the word used in the Bill—whereas juvenile panels, with the exception of Inner London, are not appointed but are elected by the benches from their own number.
My reading of the remarks made by a spokesman in another place is that it is the intention that domestic panels shall be elected by benches from their own number. But the Bill does not say that, and I think that it should do so, for the sake of clarity. I appreciate, however, that at the end of the line it may be necessary to have some sort of 1607 power in the Lord Chancellor's hands to grant or withhold the blessing of the selections made by the local benches.
Clause 74 defines "domestic proceedings". In Clauses 17 and 18, powers are given to magistrates' courts not only to make maintenance and custody orders but also to vary or enforce such orders. But it appears from my reading of Clause 74(1A) that a court only may define variation matters as domestic proceedings. The word is "may"; the court is not obliged to do so. In other words, whereas a domestic court would deal with the initial order of maintenance or custody—maintenance in particular, of course—a variation or enforcement order only may be dealt with by the domestic court. It could be dealt with by the ordinary magistrates' court. Surely, if the initial proceedings take place in the domestic court, any enforcement or variation should also be confined to the domestic court.
Clause 75 details the constitution of these domestic courts. I am not entirely clear about the status of stipendiary magistrates in this context. It appears that a stipendiary magistrate has the powers of a two or three lay justice domestic court, but reference is made to the stipendiaries being members of the domestic panel. It should be made clear exactly how they become members of a domestic panel.
So much for what is in the Bill.
§ Mr. Andrew Bowden
Will my hon. Friend comment on Clause 76, which restricts the categories of persons who may be present during the hearings of domestic proceedings? I should be grateful if he would give the Committee his advice and guidance on something that seems to me rather illogical. The clause proposes that we allow the Press and Press agencies to be present at these hearings, but not members of the public. What is my hon. Friend's view on that proposal?
§ Mr. Sims
Simply that that brings these proceedings into line with the general practice in juvenile courts. It is not for me to make the case for the thinking behind the clause, but my understanding is that the underlying argument is that it is right that these proceedings should not be completely in camera, and therefore the Press has access, although the Press cannot quote names or give any information 1608 which identifies the people involved, unless the court specifically so rules. On the other hand, clearly it is undesirable that the general public should be present at such proceedings. In my view it is perfectly logical for the same rule to apply to the domestic courts as apply at present to juvenile courts.
§ Mr. Edward Lyons
Arising out of that observation, I put this point to the hon. Gentleman. When maintenance is argued in chambers in the High Court, the Press, to my knowledge, is not permitted entry. At least, I have never seen it happen, and I should be surprised if it were permitted.
We are not always talking about children in domestic proceedings. One is often dealing with a husband and wife who are childless or whose children have grown up and are now adult. It seems rather strange that under the Bill the Press may attend maintenance proceedings in the magistrates' court but will not be able to attend in chambers in the High Court. If I am right about that, then, as a spot reaction, I find it anomalous.
§ Mr. Sims
Yes, I think that the hon. and learned Gentleman is right. Again, this is something we could look at more closely in Committee although, as the hon. Lady indicated, it is not the intention here to bring the magistrates' courts and the higher courts completely into line obviously, that would not be practicable. There may well be a case for excluding the Press altogether, although, clearly, there are arguments against that at this level.
One of the issues which the Law Commission considered and on which it made a recommendation was that there was a strong case for the production of informal, if not formal, documents between the parties before a hearing, as is done in the divorce courts—the production of what I think are known in the legal profession as pleadings. The Law Commission recommended this course and a number of outside bodies strongly support it. Such a provision does not appear in the Bill. It may well be that the Home Office has it in mind to produce rules to cover such a course rather than include it in the Bill itself. Either in winding up the debate or at some stage in Committee, perhaps the Minister could let us know her thoughts on that.
1609 Another aspect of procedure on which there are differences is that in the High Court it is not unusual—in fact, it is fairly common—in custody proceedings for the judge to want to see and talk privately to the child or children. This is done also in county courts from time to time. However, not only is it not done in custody proceedings in the magistrates' courts but Sir George Baker, the President of the Family Division, and the Lord Chancellor himself have both specifically said that it should not be done.
If we are seeking generally to bring into line the procedures of the various jurisdictions, I think that there is a case for bringing these matters into line and for giving the domestic courts the opportunity, if they feel it appropriate, to have a chat with the child or children over which there is dispute in a quiet room, aside from the relative formality of the court itself.
The Law Commission also made some interesting observations on the use of what it described as application courts, that is to say, a sort of preliminary hearing of separation and maintenance proceedings. In some courts the idea of an application court is fairly strongly formalised. I wonder whether it is the Government's intention to bring in this idea as part of the general procedure, because, again, it seems illogical that this should be done in some jurisdictions and not in others. I should have thought that there was a case for, at any rate informally if not formally, setting up such an application court procedure. This could be incorporated in the Bill, or perhaps the Minister could indicate whether there was any intention to issue rules about it.
A notable omission, to which the hon. Lady has not referred, is that there is no power anywhere in the Bill for anyone other than the parties involved to bring proceedings, for maintenance in particular. There appears to be no power whatsoever for the court itself to bring proceedings to require enforcement or to bring variation proceedings; nor is there any power—this is particularly important—for the Supplementary Benefits Commission to do so. Surely, there is a strong case for enabling the Supplementary 1610 Benefits Commission to initiate proceedings in domestic courts.
We are all familiar, I imagine, with the case of the woman not receiving maintenance who is being maintained by the Supplementary Benefits Commission—in other words, the taxpayer. In those circumstances, there is obviously no incentive for her to take proceedings against the erring husband.
The Finer Report suggested that the answer to that was that the Supplementary Benefits Commission should handle such proceedings. Whereas we do not go as far as Finer, I think that there should be something written into the Bill to give the power to the SBC, and particularly in the case of enforcement, to the court itself to initiate proceedings.
These are a few points, and I suspect that there are many others that hon. Members will wish to bring up in Committee. While, obviously, we hope that we can improve certain aspects of the Bill, we on this side have no wish whatsoever to obstruct its progress. I wonder whether the Minister could share with us her thoughts on when she expects that it will be possible to implement this legislation. It ties up to some extent with the Children Act which was passed two years ago, parts of which are still not implemented. If she could give us some idea of the timetable for bringing in the other provisions of the Children Act and of implementing this Bill, I am sure that it would be of interest to the Committee and to others outside.
I hope that the Bill can pass fairly swiftly through the House, when we have had a chance of looking at it more closely, and that it will prove to be a positive step towards the formation of family courts.
§ The Chairman
I remind the Committee that this is a Second Reading Commitee and there is no automatic right to second speeches.
§ 11.12 a.m.
§ Mr. Emlyn Hooson
This is a highly desirable Bill and I welcome it. My chief purpose at this stage is to raise two important points on which I have serious doubts. I am, in effect, giving prior notice of matters which I think should attract close attention in Committee.
1611 I draw attention, first, to Clause 7(2)(b) dealing with the powers of the court regardingthe right of access to any such child… as the court thinks fit".I doubt whether there should exist such a right of access. I say that because I think that the importation of the words "the right of" presages a great deal of difficulty of interpretation in the magistrates' courts.
In the Family Division the judges have been moving away from the concept of the right of access by parents. I quote the case of M v. M, reported in 1973, 2 All England Law Reports, at page 81. The headnote states:Access to be regarded as a right of child rather than parent.I quote the decision from the headnote which, I think, should attract the attention of the Committee:No court should deprive a child of access to either parent unless it was wholly satisfied that it was in the interests of that child that access should cease, and that was a conclusion at which the court should be extremely slow to arrive. Access was to be regarded as a basic right of the child rather than a basic right of the parent. Save in exceptional circumtances to deprive a parent of access was to deprive a child of an important contribution to his emotional and material growing up in the long term. There was no distinction to be drawn between a natural parent and an adoptive one.That was a decision of a Family Division court with three very experienced Family Court judges—Mr. Justice Wrangham, Mr. Justice Latey and Mr. Justice Dunn—and as I understand that it is the approach followed by Family Court judges thereafter.
It seems to me that the Bill would lose nothing if the words "the right of" were excluded and the court could consider making orders regarding access to any such child as the court thought fit. If the words "the right of" are left in, I can imagine an eloquent and persuasive advocate such as the hon. Member for Burton (Mr. Lawrence) being able to persuade a court that Parliament had provided and spelled out that parents had the right of access. I should like the Minister to consult the President and judges of the Family Division about whether they would regard it as desirable that those words should be left in.
§ The Chairman
May I call the hon. and learned Gentleman's attention to the 1612 fact that that is more a Committee issue, and we are taking Second Reading in this Second Reading Committee.
§ Mr. Hooson
Yes, Mr. Blenkinsop, but I wished, as I think I said, to give prior notice of the point, which is vastly important. I know that the same view is taken in other quarters. I was, therefore, hoping to give the Minister an opportunity of considering it before the Committee stage.
The second matter I wish to raise arises from Clause 7(4) and Clause 32(1), which purport to give to non-custodial parents certain rights and duties and which virtually invite split orders. If there is one thing that the Family Division has tried to avoid in recent years it is split orders—that is, legal custody given to one parent and all kinds of rights given to another so that there is a continuous clash between parents as to who is to exercise parental control.
The view the courts have taken is that it is more in the interests of the child, however traumatic an experience it may be for the, as it were, unsuccessful parent competing for custody, that split orders should be avoided.
I invite the Minister to consider whether those two provisions positively invite split orders. I am told that the Family Division nowadays rarely makes a split order. If statutory provisions are to be made so that magistrates are faced with provisions which virtually invite them to make split orders, that will be going directly against the practice of the Family Division.
I hope that the Government will consider those matters and decide what amendments may be desirable, taking the opportunity to consult the judges of the Family Division to see what their view is. After all, the purpose of the Bill is to remove anomalies between the Family Division and the magistrates' courts. As there are two provisions in the Bill which import greater anomalies than exist today, there should be further thought.
Generally speaking, it is best to get rid of anomalies. But, to echo the hon. Member for Chislehurst (Mr. Sims), when will the Government grasp the nettle and get rid of all the anomalies by setting up family courts? Even if no money is available at present, we should be thinking about it and deciding what form the 1613 family courts should take. For example, the Select Committee on Violence in the Family recommended that the Government should publish a Green Paper so that there could be public debate about what ought to be done about family courts. In fact, the Government were invited to produce a draft Bill in the form of a Green Paper to stimulate argument about it.
There are many different ideas as to what a family court should be and what it should do. But, surely, it would be a wise precaution to be clear in our minds, in Parliament and in the Government, as to the form a family court should take so that, when money becomes more readily available, the reform can be more easily implemented.
In the Bill there are many examples of referential drafting, with amendments to Acts not yet in force. Mention has been made of certain provisions of the Children Act passed in 1975, not yet implemented, but which are amended by the Bill. There is the Adoption Act passed in 1976 and not yet in force, yet the Bill makes certain amendments to that Act.
An overwhelming case for a consolidation measure in this sphere is building up. At present, the law is left in a very untidy state. One has but to imagine the situation created by a 1976 Act, published, carefully studied, but amended before it comes into effect. I am not saying that the amendment is undesirable, but there is a great need for tidying up this area of the law.
The Bill sets up panels for magistrates who are to sit in domestic courts. That is highly desirable but it is even more desirable that they receive proper training for such work. They should be trained in the way that training is made available for juvenile panels.
I query whether it is desirable that a stipendiary magistrate should be allowed to sit alone to decide any of these cases. I do not know why it should be thought that a stipendiary magistrate, normally a member of my profession, is better qualified to decide important questions in this sphere where one has to consider family background and other emotional issues. A stipendiary's training in the law gives him little advantage in considering the best course to take in a domestic court.
1614 Finally, I echo a point already made. There are powers under Clause 14 to deal with domestic violence by making orders excluding violent husbands from property. I understand that, as a result of consultation with the Law Commission, certain amendments are to be considered to that aspect of the Bill. Under the Domestic Violence and Matrimonial Proceedings Act 1976 there are different, and greater, powers for county courts. The orders there apply to co-habitees as well. Would it not be desirable to make sure that the provisions are similar in the magistrates' courts? I do not know what amendments are in mind, but this is an aspect that should be regarded with care.
Altogether, it is a desirable Bill and all we can do is seek to improve it. I echo the sentiments expressed by the hon. Member for Chislehurst, speaking from the Opposition Front Bench, that the sooner we get the Bill in tidy form and passed, the better.
§ 11.24 a.m.
§ Miss Jo Richardson
I take up immediately what the hon. and learned Member for Montgomery (Mr. Hooson) has said in criticism of the Bill, since the more we study it the more complex and confused it makes the law to the layman—I stress, to the layman. Looking around the Committee, I see a number of distinguished legal gentlemen and I find myself in, I think, a minority of about four or five who have not had legal training. I see the hon. Member for Woolwich, West (Mr. Bottomley) nodding. It is not the first time that I have found myself in such a situation on a Bill as complex as this.
I echo the remarks of the hon. and learned Member for Montgomery in saying that the time has come seriously to consider a consolidation measure which would bring all the various Acts together in a digestible form for the men or women who have to use them. We make the laws, and I sometimes wonder whether we understand them ourselves. If we do not understand them, certainly people outside will not understand them, and they are the ones for whom the laws are designed.
That is why I regret that the Law Commission, in considering this problem, did not take on board the strong recommendation of the Finer Committee that the domestic jurisdiction of the magistrates' 1615 courts should be substituted by a system of family courts.
It is a fact that magistrates' courts are being used less and less by those involved in marriage break-up. No one has any statistical knowledge of why that is, but it is a fact, as the Law Commission pointed out, that magistrates' courts tend to be used as a "casualty clearing station" in terms of break-up of partnerships. That in itself seems to indicate that magistrates' courts in their present form, are not the best places to deal with them, and, in a way, we are re-institutionalising them in the Bill.
The Finer Committee recommended family courts a long time ago, but the matter has been inadequately debated in the Chamber although the concept of such courts has caught on outside the House. Those who consider themselves to be experts and are involved in these matters outside the House of Commons have supported the idea of family courts.
This was a golden opportunity for the Law Commission and the House to take a close look at the matter and see how we could institute a family court procedure. Such courts would be of much more general benefit to persons making applications than the present system, which was evolved by one Act being built upon another—in many cases one Act not being consistent with another and therefore capable of misinterpretation.
Having made those general remarks, I shall refer briefly to two or three of the proposals in the Bill. I am very disappointed, as are many people outside the House, that Clause 1 provides that desertion and unreasonable behaviour should be considered as grounds for financial provision. That seems to ignore the fact that there are a lot of couples in this country who are living apart. I believe that their needs and problems should be taken into account. To restrict the grounds for an application for an order tohas failed to provide reasonable maintenance for the applicant; or… to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family; or… has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or…has deserted the applicantignores a whole group of people who are living apart anyway but whose needs in 1616 terms of financial arrangements should be regulated and helped by a court. I have some serious worries about Clause 1 in that respect, and perhaps we may return to them in Committee.
The second matter that I wish to raise relates to the assessment and maintenance clauses, of which there are several scattered throughout the Bill. They are not all together. Again, this seems to be the wrong way of approaching the question of maintenance. I fully support the suggestions that have been made from the Conservative side of the Committee that this should be a matter in which the Supplementary Benefits Commission should be involved. It has vast experience of assessing the needs of individuals in a marriage on this basis. I believe that we ought to apply the national scales of supplementary benefits without regard to conduct. The detail into which this Bill goes places far too much responsibility on lay magistrates to decide how to calculate the maintenance. I believe that the scales of maintenance ought to be left to those people who do so.
I expect other hon. Members have shared my experience with constituency cases where the social security supplementary benefit people are at variance with maintenance orders which have been assessed, and who believe that the assessment is an over-assessment or an under-assessment. This is an opportunity where we can regulate the whole matter.
Thirdly, I really cannot understand why we continue to allow imprisonment for maintenance defaulters. It seems to me quite ludicrous that the law having failed to force someone to pay his maintenance should then put him in prison. This prevents him from paying his maintenance, and it does not help the family at all. Furthermore, it costs the State a large amount of money. I was amazed to read that there are about 3,000 people at present languishing in gaol because they have not complied with maintenance orders. As I understand it—perhaps the Minister will confirm this—to keen a man in prison costs about £100 a week. This seems to me to be a ludicrous way of trying to get maintenance for the person who is claiming it. I think we should seriously consider in Committee the possibility of abolishing Clause 28 which leaves in the imprisonment.
1617 Finally, I come to the problem of battered people and Clause 14. Opposition Members have already referred to this, and I welcome what the Minister said about the amendments which are to be put down. These will go some way at least towards trying to overcome some of the worries that I have about this clause.
My principal worry is that we are introducing yet another procedure for dealing with domestic violence. Under the Domestic Violence and Matrimonial Proceedings Act, we have the possibility of obtaining injunctions through the county court or the High Court. We already see injunctions granted under the Matrimonial Homes Act in the county court. Now we are introducing—and I am not being unwelcoming about this—a further procedure in the magistrates' courts. I am not unwelcoming about including the magistrates' courts. But why cannot we have all three procedures similar? I have had some experience with this under the Domestic Violence and Matrimonial Proceedings Act. Why cannot the draftsman look up similar Acts and try to follow the same principle?
Here we have, in Clause 14 of the Domestic Proceedings and Magistrates' Courts Bill, a whole set of new words to describe the kind of situations in which an order may be made. Hon. Members will know that there has been considerable difficulty with the interpretation of the Domestic Violence and Matrimonial Proceedings Act. I should have thought it a good idea to take that lesson on board and to have copied the wording of one Act into this Bill, so making the procedures in magistrates' courts and in county courts as nearly identical as possible.
Even the definition of violence is different in the two Acts. In the Domestic Violence and Matrimonial Proceedings Act, we talk about molestation, and in Clause 14 of the Bill we talk about using, or threatening to use, violence. I dare say—hon. Members who have legal qualifications will doubtless be able to inform me—there may be slightly different interpretations of those two phrases.
Furthermore, there is no provision in Clause14—and I assure the Committee that I am not trying to pre-empt proceedings in the Standing Committee that will 1618 follow—for a power of arrest as exists under the Domestic Violence and Matrimonial Proceedings Act. The very threat of arrest is already being very helpful in respect of those who have applied for orders under that Act.
I realise that magistrates' courts have the power, anyway, to commit a defendant to custody to enforce an order, but I think that it would be better—and I may put down an amendment to achieve this in Committee if I am selected to serve on it—to spell the matter out in Clause 14.
The other thing that worries me, too, is that, in a county court, the person who is battering is entitled to know the allegations against him or her. In a magistrates' court, as I understand it, there will be no opportunity for the allegations to be spelled out and to be made known to the accused. I may be wrong about this, but that is what I am informed.
Here again, I want to be absolutely even-handed. My principal desire is to protect people who have suffered some kind of violence in the home. At the same time, I believe that those who are accused of committing it should have the right to know what they are accused of. If, under the Bill, they do not know, we must find some way of putting that right so that it will conform to the rights that people have in county courts.
All in all, I would much have preferred—as would a large body of opinion outside this place—to have had a proper family court concept before this committee, instead of this very large and complex Bill. All we can do is try to improve it as much as possible and to press on in other directions for the institution of family courts, the thought of which should not be lost.
§ 11.39 a.m.
§ Mr. Walter Clegg
I congratulate the hon. Member for Barking (Miss Richardson). She underestimates herself when she says that she does not understand these matters. I had the enjoyable experience of sitting with her on the Committee which considered the Criminal Law Bill, and she understood that well enough and made many sensible speeches on it. I am not sure that her Whip always appreciated the length of time that she took, but that is a different matter.
Some of the matters raised this morning by the hon. Lady and other members of 1619 the Committee are very important for our consideration of the Bill in Committee. I had better declare an interest as a solicitor whose firm still practices in the domestic courts and who, before I came here, thought it a poor week when I did not have at least three hours in court.
With my experience of these matters, I can say that it will make life easier for magistrates in coming to decisions about whether to grant maintenance. Indeed, the Explanatory Memorandum sets out some of the financial savings expected under the Bill, saying:…there will be offsetting savings from the changes in the grounds on which a matrimonial order may be made and from procedural changes, which should reduce the number of contested cases and also expedite proceedings.I suppose that it was inevitable that the magistrates' court should, in due time, follow the general law that is operated by the High Court and the county court. Indeed, I am surprised that that has taken so long to happen. However, we should take a little care. I am by no means certain that we have achieved the object of those people who supported so vehemently the Divorce Reform Bill, claiming that by passing that legislation we should be adding to the sum of human happiness. Certainly, it is easier for families to split up now than it was before.
Under this Bill, too, it will now be easier for families to split up than it was before. Whether that is a good thing all round is a matter of doubt. I have found from my own experience in matrimonial courts that if divorce is made easier, separation takes place and that is the end of the marriage, whereas when divorce was somewhat more difficult, marriages went through very sticky patches but survived.
So we should not over-congratulate ourselves when we say that this Bill will make it easier for marriages to come to an end effectively—if not through divorce, then through these new provisions.
I want to take up one point made by the hon. and learned Member for Montgomery (Mr. Hooson) about stipendiary magistrates. He asked why they should sit on their own, because they are lawyers, and magistrates are probably better trained to deal with these matters than they are. But if that applies to stipendiaries, why does the same argument not apply to High Court judges and county 1620 court judges? I should have thought that by the time they come to the Bench they have no more and no less experience than the stipendiary magistrate has. A stipendiary magistrate is probably a barrister who has spent a lot of his time in matrimonial courts. So I do not agree with the hon. and learned Member on that point.
However, I agree with the hon. and learned Member and with several other hon. Members who spoke about having a separate system of family courts. Only too often in a magistrates' court—or, as it is more commonly called, the police court—one finds in the waiting room the witnesses and parties to the action together with various assorted thugs, prostitutes and others who are coming up before the criminal court. That is not the right atmosphere for these matters. I add my plea that, when money becomes available, we should consider the creation of a separate system completely away from the criminal side of the magistrates' courts.
There are many matters that we shall have to watch closely during the passage of the Bill. I agree with the hon. Lady the Under-Secretary of State that we shall have to be careful on the protection and exclusion orders. We have to ensure that both sides get a fair chance. But I welcome Clause 14 and the proposed amendments that the hon. Lady mentioned, because one of the great problems for those acting in matrimonial cases arises when a woman, especially one with several children, cannot leave her home to escape the violence because there is nowhere for her to go. In so far as Clause 14 will help to remedy that situation, I welcome it, and I share the general welcome given to it by my hon. Friend and by all hon. Members who have spoken.
§ 11.45 a.m.
§ Mr. Edward Lyons
I join in the general welcome to the Bill. It was obviously anomalous that there should have been such a difference in grounds between what was appropriate in the High Court on divorce and what was appropriate to obtain maintenance in the lower courts. That is not to say that the Bill does not require and will not get intense scrutiny.
I congratulate my hon. Friend the Member for Barking (Miss Richardson) 1621 on her speech. She is inclined to find lawyers under every bed, but the majority of the Committee are lay, not legal members. That applies to those present this morning. Indeed, it applies even more to the totality of the Committee, including those not present. I often find that any individual lawyer swirls before my hon. Friend's eyes as a figure both gruesome and terrifying.
I do not want to make a Committee speech, but there are one or two matters which I hope the Committee will consider when it gets down to work. First, Clause 2 contains a new power for magistrates to grant a lump sum order up to £500. The High Court has had that power for some time. As I understand the matter, although a maintenance order can be varied from time to time—a person receiving maintenance can come back again and again for variation—a lump sum is once and for all.
If a bunch of lay magistrates decides to give £200 or £300 to a wife, does that mean that in subsequent divorce proceedings in the High Court, she will be barred from receiving any lump sum? If a lump sum awarded in the magistrates' court is to be no bar to obtaining a substantial lump sum on divorce, perhaps that ought to be clarified. It is a point which needs to be looked at. After all, magistrates are here being given power to change the financial relationship to a considerable degree, particularly among poorer people. I hope that it is in no sense final. I do not mean by that that the present system of appeal is not enough of a safeguard.
Reference has properly been made to the question of Press access to domestic proceedings. It has always been my understanding that the personal means of both men and women—what they own, their income, and so on—are matters purely for them. After all, we are supposed to be getting rid of the matrimonial offence. Therefore, where is the offence to interest the Press. Why should a Press man, whether or not he is forbidden to report the matter—and we know that he is forbidden to report it—be entitled to know about private financial arrangements between the parties? The only time that emerges in the divorce court is normally when the maintenance is agreed. Otherwise, 1622 that fact emerges not in the divorce court, but in Chambers. It seems to me that the present system should continue. The Press should not be allowed to know about a man's or a woman's private resources. It has nothing to do with the Press. These are private proceedings. I think that the clause ought to be looked at again.
I deal next with affiliation. At present it is anomalous that affiliation, which is a form of domestic proceeding in substance and reality whatever it may be technically, is dealt with on appeal from the magistrates' court to the Crown Court. I applaud the fact that on appeal from an affiliation decision it is possible to have a complete rehearing somewhere in case the magistrates had got it wrong. I should certainly deplore any alteration in that system which meant that the only way a person could appeal against an affiliation decision was by going on a point of law to a division of the High Court in London, which is relatively inaccessible to most people, is certainly expensive and does not permit a complete rehearing.
I am in favour of a system of appeal against affiliation orders which enables a rehearing to take place. But why should it take place in the Crown Court, which is a criminal court? In my view, it should take place in the local county court where the judge, who used to be called a county court judge, deals with matrimonial matters. Let the rehearing be in front of him in that court, not in the Crown Court where there is a succession of criminal appeals into which an affiliation appeal may suddenly be interposed. That would seem to me to be anomalous and totally in the wrong venue.
This Bill represents a collection of Committee points. No one will say that it should be rejected out of hand. That is no doubt why it is in a Second Reading Committee. But it could be a lengthy Committee stage. There are a lot of interesting points which are not perhaps very exciting, but are of some importance.
Accordingly, I look forward to our discussions not in order to delay matters so that the Whips are afraid that the Bill will not get through, but to give these important matters the scrutiny that they deserve.
§ 11.53 a.m.
§ Mr. Ivan Lawrence
That this Bill introduces improvements in the existing law there can be no doubt at all. That its preparation has been made with great care with the application of distinguished legal minds and after considerable consultation there is likewise no question for doubt. But the fact is that family law, as administered in this country, has for many years been developing into a quagmire and a mess. Whether it always benefits the lawyers to have the system so is open to doubt. However, it is quite clear that the consumers—the parties to matrimonial conflict—do not benefit from the system that we have been pursuing, as frequent and increasingly concerned inquiries, such as the Finer Committee report, have revealed.
How far the Bill helps, or ought to help, is a matter of considerable doubt. I do not think that any of us should consider it as being any more than a stopgap on the way to an overall improvement of the system.
The Under-Secretary of State, in support of the Bill, said that it incorporated the recommendations of the Law Commission. But that is only helpful to us as far as it goes since the Law Commission was expressly excluded from considering the very points that I am raising now and to which others have alluded—namely, the wider ramifications of this legislation.
The terms of reference of the Law Commission were to consider:
Therefore, although the Law Commission recognised that there was a body of opinion that felt that more radical reform was necessary, it concluded that such matters were outside the working party's terms of reference. Therefore, one can consider this legislation as being no moe than making the best of a bad job.
- "(a) what changes in the matrimonial law administered by the magistrates' courts may be desirable as a result of the coming into operation of the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970, and
- "(b) any other changes that may appear to be called for in related legislation in order to avoid the creation of anomalies."
The list of those who call for overall change daily grows longer. One can see from the figures that the number of people making application to the magistrates' courts for matrimonial and affiliation 1624 orders has been decreasing. In 1973 there were 20,993 applications, and in 1976 there were 9,371 applications. Whether that is because solicitors are advising their clients that matrimonial proceedings in the magistrates' court are too old-fashioned and confused or the remedies which they provide are not particularly helpful, or whether it is because those who do not go to solicitors are advised by the Department of Health and Social Security that they should not apply for maintenance when they are in receipt of benefit, I do not think matters. What matters is that the system is increasingly being shown to be unhelpful to those consumers to whom it is directed.
It does not seem to me that a system which kills the patient more quickly than it helps the healing process is sensible in the long term. The magistrates' court is meant to be a first-aid stage. But if the marriage has not finally broken down when it goes to the magistrates' court, the proceedings in that court are likely to ensure that it does break down irrevocably. It is true that taking quarrels to court sometimes clears the air and results in reconciliation, but far more frequently than we perhaps appreciate it polarises conflict, bitterness and hostility and makes reconciliation impossible.
That fact was, of course, considered by the Law Commission. It put forward two arguments for saying that there should nevertheless be the finding of bad behaviour as a ground for a matrimonial offence giving access to the court. Neither of those two arguments for maintaining the matrimonial offence seems to me to have a great deal of substance.
First, the Law Commission posed the question: how else can a party get access to the court's reliefs unless he or she can hang the applications on the hook of the matrimonial offence? It does not seem to me to be a particularly wise comment upon the wit of man that we cannot devise another means to justify going to the court for security of maintenance other than to have to prove a matrimonial offence which polarises the bitterness and hostility which arises from such actions. Nor is that a justification or a help to the spouse who has separated by consent. He or she cannot get the help of the court by applying under matrimonial offences which do not apply in his or her particular case.
1625 It does not seem a particularly praiseworthy or justifiable point to make that, if desertion is established in a magistrates' court, it will somehow be easier to establish desertion two years later when a divorce is applied for in the High Court. The reality is that there should be sufficient evidence of what has happened in the matrimonial situation over two years to establish desertion, and a finding in the magistrates' court is in practice of little help.
Therefore, I feel that it is a pity that the Law Commission should have lent its weight to maintaining, even in a modified form, the concept of the matrimonial offence. That merely keeps the old system going and makes this no more than a stopgap or first-aid that is likely to cause more harm than good to the marriage.
There is much meat in the Bill for us to chew over. Several important issues have already been highlighted by hon. Members, and I shall not repeat them. I welcome the Bill, but I think that it is a great pity that we cannot do the job properly while we are about it. In an age where the break-up of marriage seems to be the order of the day, it is sad that we in this place cannot introduce a system which will do something to improve the stability of marriage and family life rather than to introduce yet more legislation to speed and rationalise a system which, in the end, helps only to demolish the structure of the family and of marriage in this country.
§ 12.2 p.m.
§ Mrs. Helene Hayman
It is an infrequent occurrence to find myself agreeing with nearly everything said by the hon. Member for Burton (Mr. Lawrence). Perhaps that is what Second Reading Committees are for.
We have had a great deal of common feeling in the debate. The welcome for what is being done has been there, but inevitably even greater than that welcome has been the disappointment about what is not being done.
The lack of a unified and humane system of legal procedures for people undergoing family disputes is a condemnation of the way in which we in this House and the courts are running our affairs. It is a great shame that we have 1626 not taken the opportunity to be much more radical in our approach to the courts structure that deals with the matrimonial offence and domestic proceedings and the arrangements for maintenance.
As has been pointed out already, the use of magistrates' courts by the consumer in domestic proceedings is declining. None of us can say why that is with any degree of proof. My impression is that, since the Divorce Reform Act, the more drastic solution of divorce has been easier to obtain in surroundings less redolent of criminal proceedings and on the understanding that marriages can break up without there necessarily being a fault or offence on one person's part. While that level of solution is being offered by one set of courts, the courts which are meant to give first-aid to the casualty—in situations less drastic and where a break-up is not irrevocable—impose a bitter atmosphere on the parties who go to them.
It is a matter for disappointment that Clause 1 does not totally do away with the concept of the matrimonial offence. That concept still lingers in the provisions about desertion and failure to maintain. I hope that in Committee it will be possible to move even further away from the concept of offence than the Law Commission has recommended.
It is a shame, too, that there has not been a radical restructuring of maintenance and the collection of maintenance. This, of course, comes back to Finer. I understand very well that, without a system of a special allowance for one-parent families, it is difficult to bring in the administrative order system that I have recommended. Nevertheless, all of us time and again see the misery of women attempting to obtain maintenance through the magistrates' courts but failing to do so.
The Supplementary Benefits Commission has encouraged women to use the magistrates' court as an anvil on which to beat their husbands. There has been some improvement in that respect recently. Nevertheless this was an opportunity of looking at a better way of transferring that responsibility towards the SBC when it was maintaining rather than taking it away from the parties themselves. It is a shame that has not been done on 1627 the day after a radical change in maintenance payments in the Budget, which seems to have been completely unnoticed by the Press, in regard to investment income surcharge. I think that should have been welcomed enormously by countless divorced and separated women for whom it has been an irritation as well as a hardship.
§ Mr. Edward Lyons
I entirely agree that it is a great improvement. My hon. Friend will understand that it applies only to maintenance orders over £2,000 a year. We are dealing with a magistrates' court in which such orders do not reach those limits.
§ Mrs. Hayman
I accept my hon. and learned Friend's point. I was making a more general point. For a divorced woman with four children, £2,000 a year in maintenance is not a vast sum on which investment income surcharge should be levied. However, Mr. Blenkinsop, I may be veering a little.
At the other end of the maintenance question one has the maintenance defaulter against whom an order has been made. Here, I echo everything said by my hon. Friend the Member for Barking (Miss Richardson). I cannot understand the logic behind imprisonment for maintenance debtors. We abolished imprisonment for other civil debtors. It is a totally archaic remnant that does nothing to help the families concerned.
The argument always is that the imprisonment rule is maintained for those who pay up on the threat of imprisonment. Many people are sent to prison every year for non-payment of maintenance. Earlier we talked of what was and what was not beyond the wit of man. If someone was found well enough to be threatened with imprisonment, it should be possible to find a method of distraint or attachment of earnings or some other way to get the money out of him.
Finally, I echo the point made by my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) about affiliation proceedings. I recognise that the Bill cannot deal with the larger question of illegitimacy as a whole and what we ought to do about that matter. However, the Bill contains clauses which deal with affiliation proceedings.
The question of appeal from affiliation proceedings in the magistrates' court has 1628 worried people working in this area for a long time. I take issue with my hon. and learned Friend about where the appeal should go. There is an argument between the Family Division and the county courts, but I think we are agreed that it should not be to the Crown Court. Perhaps we can return to this point in Committee.
I close by registering the disappointment that we feel in not seeing more progress towards what was a manifesto commitment to introduce family courts. I hope that the Bill, limited though it is in its scope, can be improved during its passage through the House.
§ 12.10 p.m.
§ Dr. Summerskill
By leave of the Committee, I shall now reply to the debate and deal with points that have been made. Some were detailed Committee points, but others were more general. I am glad that there has been a welcome for the Bill as a whole, though I am conscious that there are many points which disturb hon. Members, and I shall try to clear some of them up.
The hon. Member for Chislehurst (Mr. Sims) asked how the domestic panels are to be appointed. The intention is that members of the panels should be chosen by individual benches but the Lord Chancellor will have a reserve power to appoint and remove panel members. The detailed provisions will be embodied in rules of court.
The hon. Member asked whether we favoured setting up application courts. This can be done by local initiative, I understand, and the Law Commission recommended against making statutory provision for it. As for simplified proceedings, the hon. Member was right in thinking that we shall deal with that recommendation by rules, so it is not provided for in the Bill.
The hon. Gentleman also asked about informal contacts with children by the magistrates. The Bill is silent on this point, but the President of the Family Division is on record as opposing this being done, and the Law Commission supported his view.
With regard to implementation of the Bill, the rules of court will have to be made first, which will take time, and a reasonable time will have to be allowed 1629 for the courts to study the Act. Therefore, it is too early to say when exactly the Bill could be implemented.
The hon. and learned Member for Montgomery (Mr. Hooson) urged that we take out the words "right of" in Clause 7(2)(b), leaving simply "access". Right of access is a complicated matter but I am sure that this can be discussed in Committee, and I shall certainly consider the hon. and learned Member's case for omitting those words.
The hon. and learned Gentleman next mentioned split orders. It is sometimes suggested that it is undesirable for the courts to make orders of this kind, as he said, and they may lead to endless disputes which cause only harm to a child. The Law Commission considered this matter at great length but it did not contemplate that courts would commonly make orders of this kind and there is nothing in the Bill to suggest that they should. In many cases, the court may decide that the correct course is to give one party sole rights of legal custody to the exclusion of the other party, so the Bill is in accordance with the Law Commission's recommendations.
The Law Commission consulted judges, some of whom did not share the view of the hon. and learned Member on this subject. The provision in the Bill ensures that the parent who actually looks after the child must have legal custody and that the court has maximum discretion on what powers and duties should be exercised jointly.
On the ponts raised by my hon. Friend the Member for Barking (Miss Richardson) and the hon. Member for Burton (Mr. Lawrence), there appears to be some misunderstanding about the position where a couple decide to separate in an amicable way. As my hon. Friend the Member for Barking and several other hon. Members pointed out, this practice is increasingly common. If couples are merely living part, if there is no failure to maintain and the wife is receiving adequate maintenance, there is no problem and, presumably, no need for the courts to intervene. If there is a failure to maintain, then under Clause 1 application can be made for an order on the grounds of failure to provide reasonable maintenance.
§ Mrs. Hayman
The problem arises in a family where there has been an amicable separation or desertion, where maintenance is being paid at the moment and there is no failure to maintain, but where the wife in question understandably wishes to protect her position for the future and not be dependent on voluntary payments or payments at whim from the husband. In that circumstance, it is difficult to see how she could protect her future position as the Bill now stands.
§ Dr. Summerskill
This is the hypothetical case of a woman who is being adequately maintained, sitting around worrying about the time when she will not be adequately maintained.
§ Dr. Summerskill
I can only say that when that time comes and she has a cause for complaint, she can then go to the courts and make application for an order to be maintained on the ground that she is not being maintained. I do not see a great difficulty here. Under Clause 6, she could get an agreement with her husband on a reasonable amount. If they can agree—which, presumably, is the case in this marriage—the court can make provision for obtaining an order for financial provision which has been agreed by the parties. That would put her mind at rest. She is then receiving money under an order, and is not receiving it on the generous whim of her husband. Therefore, that situation is covered in the Bill.
If the ground of unreasonable behaviour were cut out, a wife could not apply for an order before leaving her husband. Second, if the ground of desertion were cut out, the wife whose husband has left her but from whom she is obtaining regular payments could not obtain the extra security of an order. In these four groups in Clause 1 and in Clause 6, which is the agreed arrangement, one is covering every possible situation in which a woman might find herself.
My hon. Friends the Members for Barking and for Welwyn and Hatfield (Mrs. Hayman) are concerned that there are, in fact, too many grounds here. I think that they would like to cut out the last two. It seems to me that by having four grounds, Clause 1 makes it better for 1631 the married woman in whatever position she happens to find herself. Clauses 1 and 6 cover all possible variations of her condition.
Several hon. Members have made reference to family courts. The Finer Committee rightly drew attention to the differences which exist between the separate but overlapping jurisdictions of the High Court and divorce county courts, on the one hand, and the magistrates' courts, on the other, and proposed that the present jurisdiction exercised by magistrates' courts should be removed from them and transferred to a family court based on the county court.
The Government made clear in another place that they see no prospect of accepting that recommendation. Our views on the subject were expressed by my right hon. and learned Friend the Attorney-General as long ago as November 1976, when he answered a Question in the House. He explained that in the present financial circumstances—and that is still the reason—there was no possibility of providing separate accommodation for family courts. He pointed out that the number of people with the necessary qualifications for appointment as circuit judges was limited—although there may be some volunteers in this Committee at the moment. There is a shortage of potential circuit judges.
The Finer Committee suggested in its report that the need for additional manpower and accommodation for the proposed family court could be met from existing resources. I am afraid that that was an optimistic assumption. There would need to be additional court accommodation as well as judges and staff.
Clause 75 goes some of the way to meet the Finer Committee's wishes. It provides for the setting up of specially appointed panels of justices to hear domestic cases. This, together with the provisions in the Bill relating to the privacy of domestic proceedings, will, I hope, help to ensure that matrimonial cases in magistrates' courts are heard in a more relaxed atmosphere, and that those hearing the cases are suitable for and experienced in this type of work.
Some hon. Members raised the question of the role of the Supplementary Benefits Commission in bringing proceedings. There is no power in the Bill for it 1632 to do this. We have consulted my right hon. Friend the Secretary of State for Social Services, and the Department has given the information that, in the view of the Supplementary Benefits Commission, it is unusual for a woman who seeks variance of any maintenance order to refuse to take action of this nature when it is suggested to her by the Commission that there are good grounds for her to take proceedings. In the view of the Commission, and in its experience, the woman herself takes the proceedings.
The Department also says that to give the Commission such additional power might well be thought to be unwarranted intereference in the woman's right to decide for herself what action should be taken on a maintenance order which she herself has obtained. But a team of DHSS officials has for some time been working on a general review of the supplementary benefits scheme, and before long it will look at the general powers of the Commission for ensuring that relatives who are liable to maintain somebody discharge their duties as fully as possible.
My right hon. Friend has told me that it is not at all clear, from the information presently available, that the matter is likely to be so serious as to call for action on the lines suggested by hon. Members. He would prefer to await the results of the examination by the review team which he is setting up. If these show that some remedial action seems to be called for, he, in consultation with the Commission, will certainly consider the best form for the action to take.
The hon. Member for Burton asked whether the Bill is a stop-gap. I think that was the expression he used. I see that he has gone, but other Members have asked the same question: whether this measure relates to family courts The Attorney-General made it clear, as I have said, that he saw no prospect of bringing in family courts. But there is nothing inconsistent in reforming magistrates' courts matrimonial law in this Bill and setting up family courts at some time in the future. I think that the Finer Committee itself recognised this. Family courts need not be ruled out.
The hon. Member for Chislehurst asked for the justification for Clause 12. I have returned to this question because similar points were made by other members of the Committee. He alleged that time might 1633 be wasted on a trivial dispute between parents. This provision corresponds to a provision already available in guardianship proceedings under the Guardianship Act 1973. The experience there is that there have been very few applications under this section, and no doubt the same will apply under the Bill.
Several hon. Members, including my hon. Friends the Members for Barking and for Welwyn and Hatfield, mentioned imprisonment of maintenance defaulters. The Home Office has a problem of prison overcrowding, and we certainly look at the question whether prisons should be used for this purpose very carefully from that point of view. It seems to be a weapon of last resort, in a sense, and also a deterrent. My hon. Friend the Member for Barking did not mention the deterrent aspect. This is difficult to prove or quantify, but the evidence we have suggests that there is a deterrent effect.
There are restrictions on the power to commit a maintenance defaulter to prison in the first place. The magistrates' court must first have inquired in the defaulter's presence whether the default was due to his wilful refusal or culpable neglect. It may not commit to prison if it is of the opinion that the default was not so due.
The court is also required to consider, before sentencing to imprisonment, whether an attachment of earnings order would be appropriate. The maximum term of imprisonment which may be imposed is only six weeks.
My hon. Friend was slightly wrong with her figures. The average daily population of these people in prison during 1976 was about 50. The total number of maintenance defaulters committed to prison by magistrates' courts in the whole of 1976 was 3,233. That is where, I think, she got her figure. The number of people actually in prison at any given moment is not all that great.
A number of defaulters pay up after they have been imprisoned, which is one way of ensuring their release, but there must be a deterrent aspect to this. It is often found that people do not pay until the very last minute when they can see that they are just about to be sent to prison.
1634 A Home Office survey of six courts showed that in nearly 90 per cent. of the cases where the court issued a suspended committal warrant for maintenance default, which is the last resort, the defaulter did not actually reach prison and paid up.
My hon. Friend the Member for Barking asked why the Bill's provisions are different from those of the Domestic Violence Act. This follows the Law Commission again. Magistrates' court procedure is simpler than that of the High Court and county courts. The system of magistrates issuing warrants avoids the police being saddled with the decision on arrests. This can be done because there are 20,000 magistrates but relatively few judges.
There are no actual differences in the rights of hearing. Both the High Court and county courts under the Domestic Proceedings Act and magistrates under the Bill can make a protection order where they think there is imminent danger of physical injury.
Several hon. Members talked about the role of the Press in domestic proceedings, but I can only say that the Press may be present at domestic proceedings under existing law. This follows existing law, but whether the Committee feels that the existing law should be changed is presumably a matter to be discussed at further sittings, but this particular provision is not new.
The point made, again, by my hon. Friend the Member for Barking and by my hon. and learned Friend the Member for Bradford, West (Mr. Lyons)—he told me that he would have to leave—referred to affiliation proceedings. They argued that the Bill should reform the system of appeal from magistrates' decisions in affiliation cases. At present, appeals are by way of rehearing to the Crown Court. Appeals in other domestic cases are to the Divisional Court and are not by way of rehearing.
My hon. Friend the Member for Welwyn and Hatfield said, correctly, that the number of applicants to magistrates' courts is declining. The hon. Member for Burton said this as well, but he did not mention the increase in divorce which concurrently has taken place. He gave various other reasons but not that.
1635 We cannot conclude, therefore, that magistrates' courts are unpopular because of their atmosphere or anything of that nature. That need not be the sole reason, and the hon. Member for Burton gave several reasons. The great increase in divorce arises for another reason.
The number of applications to magistrates' courts in guardianship proceedings, for instance, has not shown the same drop. It would seem that the explanation lies in the antiquated law applied in the magistrates' court.
I hope that this Bill, by bringing the law very realistically up to date in magistrates' courts and providing, in Clauses 1 and 6, for almost every possible situation 1636 in which a married woman can find herself, will encourage more women to use the magistrates' court to obtain maintenance and custody of the children easily and cheaply.
On those grounds, I ask the Committee to accept the Bill.
§ Question put and agreed to.
That the Chairman do now report to the House that the Committee recommend that the Domestic Proceedings and Magistrates' Courts Bill [Lords] ought to be read a Second time.
§ Committee rose at twenty-nine minutes to One o'clock.
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE|
|Blenkinsop, Mr. Arthur (Chairman)||Lawrence, Mr.|
|Bates, Mr.||Lyons, Mr. Edward|
|Bottomley, Mr. Peter||Richardson, Miss|
|Bowden, Mr.||Sims, Mr.|
|Clegg, Mr.||Stradling, Mr. Thomas|
|Hayman, Mrs.||Summerskill, Dr.|
|Hooson, Mr.||Watkinson, Mr.|
|Hunt, Mr. David|