AMENDMENT OF AFFILIATION PROCEEDINGS ACT 1957 (Hansard, 19 May 1978)

§ Mrs. Helene Hayman (Welwyn and Hatfield)
I beg to move, That the clause be read a Second time.
The new clause deals with appeals after affiliation proceedings in a magistrates' court. When we discussed this issue in Committee there was universal feeling among hon. Members that the present system of appeals from affiliation proceedings was highly unsatisfactory. At the moment if a party to affiliation proceedings wishes to appeal against the decision of the magistrates' court, that appeal is by way of rehearing in the Crown court. The Crown court deals with no other domestic proceedings on appeal. Those domestic proceedings appeals in the main go to the Family Division of the High Court. That is where I suggested in Committee that affiliation proceedings appeals should be heard in the future. However, it was pointed out in Committee that there were considerable inconveniences to the parties concerned and in terms of the procedures available on appeal in the High Court.
1044 It was generally agreed that these appeals should be taken from the criminal atmosphere of the Crown court to a place where there were judges who were used to hearing domestic proceedings, and a place that was easily available to applicants throughout the country. It was agreed that these appeals should be removed to a place where a case could be reheard in full. It is one of the advantages of the present procedure—and something that we would not want to lose on appeals from affiliation orders—that the county court is the most appropriate place for them to be heard. They should be heard preferably by a judge used to dealing with divorce and other family work undertaken by the county court and two lay magistrates.
In Committee, it was argued that the general review of the law on illegitimacy would cover this point and that it was necessary to wait until the review was completed before making any change in this aspect of the law. There was, however, general agreement that the stigma of this relic from the days when illegitimacy and fathering an illegitimate child were a criminal offence and all the proceedings concerned with that child were dealt with by criminal courts was such that we should anticipate the general review of the law of illegitimacy in order to prevent the distress to many participants in affiliation proceedings caused by the present system of appeals.
For that reason I hope that we shall be able to change an unfortunate mis-siting of those appeals and put them back into a court which deals more normally with the private, intimate and domestic affairs of families.

§ Mr. John
My hon. Friend the Member for Welwyn and Hatfield (Mrs. Hayman) moves the new clause as she raised the matter in Committee. It was the general wish of the Committee that the question of affiliation appeals should be withdrawn from the criminal atmosphere and dealt with by a court which deals with family matters. It was generally recognised that it was inapposite that such matters should be dealt with in London rather than on a more local basis.
My hon. Friend addressed her mind not so much to a matter of jurisdiction in the strict legal sense as to jurisdiction in the sense of geographical separation 1045 and a distinction between criminal and family matters. This is an objective that the Government fully accept.
What is different and unacceptable, not only from my point of view but, more important, from the point of view of the Lord Chancellor, who has jurisdiction in these matters, is that the county court should be an appellate court from the magistrates' court. At the moment the county court, when exercising family jurisdiction, has a concurrent jurisdiction with that of the magistrates' court. It does not have any appellate jurisdiction from other courts. Therefore, there are a number of legal difficulties, not the least of which is that, if the new clause is passed, magistrates would not be able to claim any expenses for sitting on these matters. That is a powerful deterrent.
3.45 p.m.
Having accepted the spirit of the proposal, we consulted the Lord Chancellor and, in the short time available, all the circuits in this country. I can undertake on behalf of my noble Friend that, in future, all reasonable steps will be taken to segregate the hearing of affiliation appeals in the Crown court from its criminal business. This will be done either by arranging for these cases to be heard in county court premises—with the Crown court judge and two lay magistrates: in practice many Crown court judges are also county court judges—or by listing the cases to be heard in the Crown court buildings, but separately from the criminal cases.
There are about 70 or 80 appeals a year, and while I cannot give an absolute guarantee that there will be no anomalies, because in some areas Crown courts and county courts share the same buildings, I can guarantee that the objective will be to take all reasonable steps to segregate the hearing of affiliation appeals from criminal business in Crown courts. I hope that, in the light of that practical assurance, my hon. Friend will not press the new clause.

§ Mr. Sims
I have a great deal of sympathy with the new clause and I fully support what the hon. Member for Welwyn and Hatfield (Mrs. Hayman) is trying to achieve. It highlights the fact that much of our legislation is in something of a mess because we are trying to knit together legislation, covering 1046 various areas, which has grown up over the years. One of the difficulties that we get into is that civil matters are dealt with in a criminal atmosphere.
On the other hand, if it will create difficulties, as the Minister has indicated, we should hesitate before pressing the matter too far at this stage. The precedent of transferring jurisdiction to the county court does not frighten me. I should have thought that it was a good precedent and one that we should consider in terms of the future structure of family courts. Certainly the problem of paying magistrates expenses for sitting in the county court does not seem to be an insurmountable obstacle.
However, in light of the Minister's undertaking about the separate sittings for affiliation proceedings at the higher level, I reluctantly feel inclined to accept that assurance and not to support the new clause, much as I should have liked to do so.
This is not the last that the Minister will hear of this problem or of the general need to restructure our courts to deal with these problems.

§ Mrs. Hayman
Of course I am disappointed that the Minister has not been able to accept the new clause. I accept the spirit of what he has offered, but it is disappointing and it is a compromise. I hope that it will work satisfactorily.
Probably the best thing for us to do today is to accept what has been offered in the hope that there will be a segregation of places for these appeals, to see how it proceeds and, when we review the whole of our law governing illegitimacy, to tidy up the matter at that stage.

§ Mr. John
I undertake on behalf of the Government that we shall monitor how the undertaking works in order to provide material for when the overall review is conducted.
My hon. Friend and the hon. Member for Chislehurst (Mr. Sims) have both expressed their disappointment, but part of the difficulty is that we have had such a very short period between the Committee and Report stages to get something practical that we can do now.

§ Mrs. Hayman
I am grateful for what my hon. Friend has said. That information will give us the ammunition to come 1047 back to the subject in future. On that basis, I beg to ask leave to withdraw the motion.