HC Deb 14 April 1980 vol 982 cc939-53 10.23 pm
The Minister of State, Northern Ireland Office (Mr. Hugh Rossi)

I beg to move, That the draft Domestic Proceedings (Northern Ireland) Order 1980, which was laid before this House on 24th March, be approved.

Mr. Speaker

I understand that it will be for the convenience of the House to discuss at the same time the motion on the draft Maintenance Orders (Northern Ireland Consequential Amendments) Order 1980. The two are linked.

Mr. Rossi

The main purpose of the order is to bring, so far as possible, the matrimonial law administered by magistrates' courts into line with the law being administered by the divorce court under the Matrimonial Causes (Northern Ireland) Order 1978. At present we have the anomaly that the High Court may deal more generously in terms of financial provision where there is a divorce than the magistrates may in respect of those who remain married. It is the aim of the order to achieve some consistency between the two.

The order also creates new powers for the protection of battered wives and children as well as amending provisions of the Magistrates' Courts Act (Northern Ireland) 1964. We are concerned with the enforcement of orders made by magistrates' courts in civil matters.

The present law about summary matrimonial proceedings is contained in the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945, which empowers magistrates' courts to deal in a limited fashion with family relationships during a period of breakdown of a marriage which is not necessarily permanent or irretrievable. The new order will supersede the 1945 Act and make changes that have become desirable since the new divorce law came into operation in April 1979. In doing so, it follows provisions of part I of the Domestic Proceedings and Magistrates' Courts Act 1978.

I now turn to the main provisions of the order. It is proposed that in future there should be five grounds—instead of the present nine for a wife or four for a husband—on which one spouse may apply for a maintenance order against the other, comprising the four grounds contained in the Domestic Proceedings and Magistrates' Courts Act 1978 and the additional ground of adultery. Those four grounds are failure to maintain a spouse, failure to maintain a child, desertion and behaviour which is such that the applicant cannot reasonably be expected to live with the respondent.

In adding the ground of adultery, the order will be in line with the Matrimonial Causes (Northern Ireland) Order 1978, which follows Scottish but not English precedent in that adultery is in itself a ground for divorce or judicial separation. It has been argued in relation to the Domestic Proceedings and Magistrates' Courts Act 1978 that the ground of "unreasonable behaviour" is sufficiently wide to encompass adultery, and there is great force in that argument. However, I am faced with the Matrimonial Causes Order, which makes adultery a ground for seeking the dissolution of a marriage in Northern Ireland. A fortiori adultery must therefore be a ground for living apart and accordingly for applying for financial provision. However, I have gone somewhat further in the other direction.

Under present law, an applicant who has committed adultery cannot obtain maintenance for herself. It is no longer acceptable to public opinion generally that the single act of adultery by a wife should be regarded as sufficient to disqualify her automatically from all financial relief, especially as adultery is not a bar to an award of alimony or maintenance in divorce proceedings. The order therefore removes the bar where the parties remain married. However, I should add that there will be nothing to prevent a magistrate from having regard to a spouse's adultery in assessing proper financial provision.

In addition to the existing power to order maintenance by periodic payments, the order gives magistrates' courts a new power to order a lump sum payment, not exceeding £500, in matrimonial proceedings. That is to be found in article 4.

The criteria for making orders whether for periodic payments or a lump sum are laid down in article 5. They follow those in the divorce legislation and, give guidance as to when a spouse's conduct in relation to the marriage is relevant to determining whether he or she should be awarded financial provision, and how much. Generally speaking, the court will approach the issue on the basis of the parties' and the children's needs, and conduct will be taken into account only where there is something in the conduct of one party which makes it unjust to disregard it.

Of course, it is inevitable that when a family splits up one cannot place the parties in the same financial position as they would have enjoyed had there been no breakdown: instead of a single household, there will be two. The courts must simply do the best they can in all the circumstances, having regard to income, earning capacity and other financial resources, needs and obligations, the previous standard of living, the parties' ages, the duration of the marriage, any physical or mental disability, contributions made to the welfare of the family and any other matter which is relevant, such as a child's education or training. Indeed, one of the outstanding features of the order is the way in which it improves the law relating to children.

Where either party to a marriage applies for an order for financial provision, if there is a minor child of the family the court cannot dismiss or make a final order on the application until it has decided whether to exercise its powers over children and, if so, in what manner. Those powers include that of giving legal custody of a child to either of the spouses or to a parent of that child who is not a party to the marriage, obtaining social workers' reports at any stage of the hearing, postponing the coming into effect of a custody order and allowing grandparents to apply for access to a grandchild where a custody order is made in favour of a parent or step-parent. A custody order may also make provision for the retention by the spouse who is not given legal custody of such parental rights and duties—except the right to actual custody—as the court may specify. In addition, in exceptional circumstances, a child may be placed under supervision or committed to the care of the Department of Health and Social Services if the home conditions are undesirable.

The court may feel, on considering a social worker's report, that a child's interests are not likely to be adequately safeguarded by his parent or step-parent. In this event, the court may appoint a guardian ad litem to look after the child's interests. The guardian ad litem may be a social worker or, exceptionally, a lawyer. This provision—which will be found in article 14(5)—coupled with the explicit statement in article 17 that the welfare of the child is to be the first and paramount consideration in the exercise by a magistrates' court of its powers in relation to a child's custody or upbringing, underlines the dramatic changes embodied in the order concerning the new duties conferred on magistrates' courts in respect of children.

There are, perhaps, one or two other matters that I should mention at this stage. These include a new procedure—under articles 8 and 9—for obtaining a magistrates' order where the parties are in agreement about financial provision or where they have agreed to separate and the respondent is making payments to the applicant. Efforts to reconcile husband and wife are encouraged. I think that we must be realistic and recognise that so long as the spouses are at arm's length any attempt by the court to reconcile them is likely to be unfruitful. But the court should be alert to encourage any movement towards reconciliation that becomes apparent. Article 28 therefore provides for adjournment of the proceedings either where, on the case coming up, the parties indicate that they want further time to try to resolve their differences or where, at any time during the course of the proceedings, the court perceives a reasonable chance of reconciliation.

Mr. James Kilfedder (Down, North)

Does not the Minister agree that the very venue for hearing matrimonial disputes mitigates against a reasonable chance of reconciliation? Would he not agree that the sooner that we move away from dealing with domestic matters in courts that deal with criminal cases, the sooner it may be possible for such parties to achieve reconciliation?

Mr. Rossi

I thank the hon. Gentleman for his comments. He will appreciate that by the time parties to a breakdown get to court there is invariably a long and bitter history. They have often tried time and time again to save their marriage. It is usually only when they see no hope that they have recourse to lawyers and to the court.

Mr. Brynmor John (Pontypridd)

With respect, I do not think that the Minister has answered the point raised by the hon. Member for Down, North (Mr. Kilfedder). He was pointing out that a matrimonial dispute is a domestic proceeding. However, such cases are heard in courts that deal with criminal cases, and this militates against reconciliation.

Mr. Rossi

I appreciated the two points raised by the hon. Member for Down, North (Mr. Kilfedder). His first point was whether there would be a better chance of reconciliation in a different atmosphere. I was seeking to address my mind to a long dispute where it is unlikely that any atmosphere would be conducive to a reconciliation. The hon. Gentleman, who is as experienced in the law as I am, will have seen streams of people who have reached the final stage that we are discussing and will know their conditions.

Family courts come under consideration from time to time. It is possible that a different, more informal atmosphere might be more conducive to reconciliation. It is a remote possibility, but we can consider it in future. I make no promise of an overnight change in the way in which magistrates' courts deal with these issues.

Mr. J. Enoch Powell (Down, South)

The Minister of State has already been interrupted in the course of his address. I should like to take him back to a point which I did not appreciate that he had left. He referred to cases involving voluntary agreements between the parties regarding the payment of maintenance or the like. He appears to have left that point. If he does not intend to return to it, will he refer to the extent to which it is desirable or appropriate for such voluntary agreements to be modified by a court?

Mr. Rossi

I had not quite concluded my comments on that. The provision for confirmation by the court of voluntary agreements makes it unnecessary for the parties to thrash out their matrimonial differences in public and in depth. They can reach agreement, with or without the help of third parties, and go to the court to ask it to confirm that agreement. Nothing prevents either party, at a later date, asking the court to vary the agreement because of a change in circumstances. I hope that that explanation meets the point raised by the right hon. Member for Down. South (Mr. Powell).

Mr. Powell

Is there also a power in the order for the court, of its own initiative, to vary such agreements?

Mr. Rossi

There is a general power for a court not to accept an agreement if it thinks that it is unconscionable. The court will have grave regard to whether adequate financial arrangements are made for a child who is not able to speak for itself. When the court is confronted by two adults, presumably acting on proper advice, it would be slow to upset an agreement.

Before I gave way to a series of interventions, I was dealing with reconciliation. I said that the court may, at any time, seek to bring about a reconciliation if it believes that there is a reasonable chance of one. Under the order, the court is empowered to request an intermediary to seek to help to reconcile the parties during an adjournment. The intermediary might be a social worker or somebody else such as a clergyman who is acceptable to both parties.

The negotiation of a reconciliation will not take place in front of the magistrates in the atmosphere of a criminal court. The parties can go away and talk to a matrimonial counsellor or a clergyman in whom they have confidence to help to resolve their differences. Perhaps that is a better atmosphere.

I now come to a most important innovation in the order. This is the provisions allowing magistrates to make orders for the protection of a party to a marriage or a child of the family. The orders are, of course, available to husbands as much as to wives. I should say first of all that articles 18, 19 and 21 have been substantially recast since they were first published in proposal form. This has been done in the light of helpful criticism and of comments in legal periodicals on corresponding English legislation. The effect of this revision will be to give magistrates in Northern Ireland stronger powers in making protection orders than are available to magistrates in England and Wales.

The grounds for seeking both an order prohibiting the molestation of a spouse or child and an order excluding the violent spouse from the matrimonial home or some other place where the spouse is living are simply two—first, that violence has been used or threatened and, secondly, that the order sought is necessary to protect or to prevent the molestation of the applicant or child. It is proposed to call the first of these orders a personal protection order and the second an exclusion order. In the case of an exclusion order, an alternative to the first ground—that violence has been used or threatened—is that the respondent has contravened a personal protection order.

The original published draft set out a number of optional provisions that the court may include in an exclusion order. Most of those are necessary in the majority of cases. To avoid the danger of any of them being inadvertently omitted from a court order, or orders being rendered unduly long, we now propose to make them statutory consequences of an exclusion order.

The range of places from which a respondent may be excluded by an exclusion order is wide. They include not only premises other than the matrimonial home—for example a refuge where the applicant or a child of the family is living —but any specified adjacent area such as a street or a block of flats. In this connection it will, of course, be important for the area to be defined in such a way as not to interfere with the reasonable conduct of the respondent's ordinary way of life.

There are to be six statutory consequences of an exclusion order. I think that they are worth listing. First, the respondent must leave the home as soon as reasonably practicable. He is then prohibited from entering it except as far as the court allows him to go there to get his personal effects. The respondent must allow the applicant and her children to enter the home and have peaceful possession of it and its furnishings. He must not sell the house or surrender its lease, and his proprietary rights in this respect are temporarily suspended. He must not damage the house or interfere with any services in it such as the central heating system or the electricity supply. Finally, he must not remove any furnishings from the house or sell or damage or destroy any furnishings. Where the respondent has damaged or interfered with the home or its furnishings or services, the court may order him to repair the damage or pay the applicant the cost of having such repairs done. These rules apply equally to damage caused by a person claiming through the respondent—for example, a relative or mistress.

A personal protection order or exclusion order may last in the first place for a maximum of six months—there is little point in requiring a woman to return frequently to court to have her orders renewed—and they can further be extended on any number of occasions it the dispute between the parties has not been resolved by other means, such as through divorce proceedings. In this connection, it is perhaps worth drawing attention to the power of the magistrates' courts to impose conditions in an exclusion order over who is to make mortgage, hire-purchase or other payments.

One other important change has been brought about as the result of the consultation period for the draft order. Instead of the court having a discretion to attach a power of arrest to an exclusion order in some cases and a justice of the peace having power to issue an arrest warrant in others, a statutory power of arrest is attached to all personal protection orders and exclusion orders. The order requires notice of all such orders to be given to the appropriate divisional commander of police.

Under article 19, a constable has power to arrest a person who breaches a personal protection order by molesting the person protected by the order or who breaches an exclusion order in specified ways. The article provides for what is to be done with an arrested person and, where he is brought before the court, the options open to the court. In particular, the attraction by article 19 (2) of section 131 of the Magistrates' Courts Act (Northern Ireland) 1964 means that when an arrested person is brought to a police station the officer in charge must inquire into the complaint with a view to deciding whether or not to release him at once, either unconditionally or subject to a condition that he returns to the police station for further investigation of the alleged breach of the order or that he appears before a court. Of course, we are concerned here with a power of arrest and not—as would be the case where a warrant had been issued—with a duty to arrest. It is expected that the power of arrest will be exercised only where the respondent is, or has recently been, in actual breach of the order when the police came on to the scene, or is persisting in or likely to renew an attempted breach.

The only remaining observation about this aspect of the order is to do with the word "molest", which is used in preference to the expression "use or threaten to use violence". We think that the wording in the order will be more effective in tackling various forms of aggressiveness on the part of spouses. I have in mind the case of a women who has been badly beaten and who may be put in reasonable apprehension of further injury by actions on the part of her husband falling short of actual violence or direct threats of violence. These provisions in the order thus give, for the first time in Northern Ireland, a summary means of obtaining relief in cases of domestic violence or wife battering. I believe that they will be widely welcomed.

I believe, too, that the order as a whole will be well received, because it will for the first time arm magistrates' courts with the powers that are necessary to deal adequately with the complexities of the cases coming before them.

10.47 pm
Mr. James Molyneaux (Antrim, South)

This order sits, as it were, on the shoulders of the major changes which were made in matrimonial law in Northern Ireland under the Matrimonial Causes (Northern Ireland) Order 1978, which reached final form after extensive discussions with all sorts of interested bodies, the study of a vast amount of submissions and constructive debates here in Parliament.

At this point, I should like to pay tribute to Ministers in the former Government, who took great care to ensure that the new legislation was both fair and workable. In looking at the order before us, one notice that the present Northern Ireland Ministers have also paid a great deal of attention to what has been said, written and put before them in various ways. There are striking differences between the original proposals and the draft order itself.

In addition to the stronger powers for magistrates, to which the Minister rightly drew our attention, article 18(3)(ii) of the proposals provided for certain safeguards relating to what was simply referred to as "the matrimonial home". As the Minister has briefly mentioned, that has been put right, because in article 18(2)(ii) the scope and description has been widened to include premises where the applicant or the child may be living at a particular time. Obviously, that is much more satisfactory.

Similarly, article 19(1)(c) and (d) of the proposals referred only to the matrimonial home. In the present order, the words "or other premises specified" have been substituted and added, and we welcome the change.

In article 32(2)(a) there is a remedy for the serious defect which, in my opinion, existed in the original proposals, which appeared to me to leave out of account altogether the free movement that one would expect within the United Kingdom. Problems could have been created by trying, as we did in the past, to treat constituent parts of the United Kingdom as watertight compartments for the purposes of this type of legislation. We are glad that that trap has been avoided.

The point which the Government have not been able to concede relates to common law marriages—if those words are not a contradiction in themselves. We are inclined to agree with the Government that this subject should be dealt with generally and not in this one particular.

As the Northern Ireland Women's Aid Federation pointed out, we are coming to the end of a massive amount of work on the reform of family law in Northern Ireland. I believe that the former Government, the present Government and all of us who have given close attention to the many problems involved have established a divorce code for Northern Ireland broadly in line with that which exists in the rest of Great Britain. But one has to say—thankfully in many respects—that it is superior to that in the rest of the United Kingdom.

10 51 pm

Mr. Brynmor John (Pontypridd)

I, too, welcome the order. I and my hon. Friend the Member for Stalybridge and Hyde (Mr. Pendry) feel a considerable sense of déjà vu in this context, because I piloted the domestic proceedings legislation for England and Wales through the Commons and my hon. Friend introduced the proposals when he was a Minister at the Northern Ireland Office.

I welcome the strengthening of the proposals. We must recognise that nearly every Act can and should be strengthened where experience teaches that that is necessary.

I agree with the Minister that it is difficult to predict where a reconciliation will take place. I had a rule of thumb—which I am sure that the Minister of State also has—that the greater the psysical violence, the more likelihood there was of a reconciliation rather than the converse. I believe that the atmosphere of the court being shared with that of the criminal jurisdiction will not inhibit reconciliation unless the court uses the question of reconciliation as a weapon in the sense of ordering an endless adjournment of the case on the pretext that a reconciliation might take place. That would be an unfair use of the prerogative of the court.

The principle of agreed maintenance, which, if I remember rightly, was introduced by a former hon. Member, Mrs. Helene Hayman, established the registration of agreed maintenance and its variation. The other suggestion which was made in the earlier proceedings and which is of paramount importance concerns the exclusion order.

I agree with the Minister that that is an important issue. It is important that the parties to a separation order should have ready and quick access to the courts in cases of non-molestation. Often the violence and the threat which gives rise to the need to apply to the courts are ill served by the procedure of applying to the High Court for such an order. That often took time, whereas the need was immediate and more easily served by application to the domestic court.

I also welcome the amendment in the order in the light of experience. I noticed that the Minister, throughout his paragraph on this part of the measure, referred to the question of "he" having been excluded from the matrimonial home and "he" having caused the violence. It is not unknown for the wife to be just as capable of physical violence and molestation. I take it that "he" equals "she" in this instance.

Mr. Rossi

As a lawyer, the hon. Gentleman will know that in legal terms the male always embraces the female.

Mr. John

Only when it is expressly said so, and, I think, only with the permission of the Minister of State.

The second point to be drawn to the attention of the House is that an order can be made for access to the children of the marriage by the grandparents. That amendment was introduced by the hon. Member for Cambridge (Mr. Rhodes James) in the original England and Wales legislation. It is designed to meet a specific need where often the parents use the child as a weapon against the grand-parents.

There are some fairly distressing circumstances, particularly where one of the natural parents of the child has since died and there is a second marriage in which one of the spouses is not keen on allowing the original grandparents access. Where the court thinks fit, that is an excellent idea. I hope that the Minister of State will say how it has been used in the two years that have elapsed since I introduced the legislation. But perhaps it is a little early for statistics to have been prepared.

At the time of the England and Wales legislation, we took the view that there was no need to define or further to specify in the order the matrimonial home, as it would become apparent in the course of proceedings what the matrimonial home was. I ask the hon. Gentleman what experience, as opposed to what representations were made, in Northern Ireland leads him to define in articles 18(2) and 19 the matrimonial home in statute form, because it has been a cherished belief that the magistrates are best fitted to sort out that matter.

The final point is that, during the course of the England and Wales proceedings, an undertaking was given to separate affiliation appeals from the criminal side of the Crown courts and to keep them as distinct as possible. A formal amendment to that effect was resisted on the basis that the courts would do their best to effect such a separation. I wonder whether the Minister has any information on how that has worked.

Subject to those questions, I have nothing but praise for the order. It makes a welcome amendment to the law and a welcome addition to the rights of the spouses in a marriage which in the final analysis has not worked out.

10.53 pm
Mr. Rossi

I am grateful to the House for the general welcome that it has given to the order.

As to the specific and detailed questions that the hon. Member for Pontypridd (Mr. John) has raised, as he has half anticipated in giving me the answer it is early days to be able to give a detailed analysis of the effect of the measures to which he referred. But I shall make inquiries, and if there is any information available I shall certainly pass it on to him because I know of his deep interest in these matters.

Implied criticism was made of two matters. One was not so much of the order but of the way in which I presented the aspect of it relating to reconciliation. I should perhaps have mentioned that the Finer report on one-parent families carried out a careful analysis into all the past legislative attempts that had been made to deal with this difficult problem and came to the conclusion that so far we had not been terribly successful. When a marriage has reached that stage in breakdown, it is difficult for third parties to intervene to mend something that the parties themselves are not able to mend, although one should never give up trying. Perhaps I did not express myself sufficiently well when the hon. Gentleman raised the matter in an intervention. It is a point that the House should bear in mind.

The hon. Member for Antrim, South (Mr. Molyneaux) raised the question of common law marriages. He indicated that there were no provisions in the order to deal with violence against a woman in that position. I am very conscious of that omission, and the matter has exercised my mind to a considerable degree. When I inherited the draft order and the proposals prepared by the outgoing Labour Administration, I was faced with paragraph 11, headed "Cohabitees", in which the previous Government stated that they had decided not to include cohabitees where domestic violence was concerned. It was a consultative document.

When I came to deal with the matter, I felt that it would be unfair to amend the order to include cohabitees when the consultative document had stated specifically that that would not be the case. Those who might have wished to make representations against the inclusion of cohabitees could have said that I had taken a course without proper consultation and that they had been misled by the document.

The alternatives before me were either to enter into a fresh period of consultation, and lose very many months, or to take no action at this stage. I felt that it would be undesirable to delay this necessary order to give the protection clearly needed by wives by entering into a fresh period of consultation on cohabitees. Personally, I see no reason why a woman should not be protected from physical violence, irrespective of whether she is married. It is an open door.

I was interested to discover in the debate whether I would be besieged on all sides by hon. Members insisting that I should introduce a fresh order to include and deal with cohabitees. I am in the hands of the House. Hon. Members who represent Northern Ireland constituencies should say whether they regard this as a desirable measure of further reform of the law. I shall take careful note of all representations.

Mr. John

What representations has the Minister received upon the basis that the Government of the day had drafted the order in favour of the exclusion of cohabitees? What was the number of representations, and what was the general tenor of the arguments?

Mr. Rossi

I received an impressive lobby from women's organisations representing people from Queen's university, Belfast, the Northern Ireland Women's Aid Federation and other battered wives organisations. They made representations to extend the order to cover cohabitees. I felt reluctantly that I could not accede to their request, for the reasons that I have given. I did not feel that I should amend legislation without proper consultation when the outgoing Government had said categorically that the matter would not be covered by the order. I felt bound by that, and that is the present position. I am open to representations. I shall listen to them most attentively because I am sympathetic to that point of view.

Question put and agreed to.

Resolved, That the draft Domestic Proceedings (Northern Ireland) Order 1980, which was laid before this House on 24th March, be approved.

Resolved, That the draft Maintenance Orders (Northern Ireland Consequential Amendments) Order 1980, which was laid before this House on 24th March, be approved.—[Mr. Rossi.]