§ '4A. — (1) Subject to subsection (4) below, a person connected with a child under the age of sixteen years commits an offence if he takes or sends the child out of the United Kingdom—
- (a) without appropriate consent if there is in respect of the child—
- (i) an order of a court in the United Kingdom awarding custody of the child to any person; or
- (ii) an order of a court in England, Wales or Northern Ireland making the child a ward of court;
- (b) if there is in respect of the child an order of a court in the United Kingdom prohibiting the removal of the child from the United Kingdom or any part of it.
§ (2) A person is connected with a child for the purposes of this section if—
- (a) he is a parent or guardian of the child; or
- (b) there is in force an order of a court in the United Kingdom awarding custody of the child to him (whether solely or jointly with any other person); or
- (c) in the case of an illegitimate child, there are reasonable grounds for believing that he is the father of the child.
§ (3) In this section, "appropriate consent" means—
- (a) in relation to a child to whom subsection (1)(a)(i) above applies—
- (i) the consent of each person who is a parent or guardian of the child; or
- (ii) the consent of each person to whom custody of the child has been awarded by an order of a court in the United Kingdom; or
- (iii) the leave of that court:.
- (b) in relation toa child to whom subsection (1) (a)(ii) above applies, the leave of the court which made the child a ward of court;
§ (4) In proceedings against any person for an offence under this section it shall be a defence for that person to show that at the time of the alleged offence—
- (a) he had no reason to believe that there was in existence an order referred to in subsection (1) above; or
- (b) he believed that he had an appropriate consent.
§ (5) For the purposes of this section—
- (a) a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person, or causes the child to be taken; and
- (b) a person shall be regarded as sending a child if he causes the child to be sent.'.—[Mr. Wood.]
§ Brought up, and read the First time
§ Mr. Deputy Speaker (Mr. Harold Walker)
With this, it will be convenient to discuss Government amendments (a), (b) and (c) to the proposed new clause.
New clause 2—Power of arrest—
4B. A constable may arrest without warrant any person whom he reasonably suspects of committing or having committed an offence under this Part of this Act. '.
New clause 3—Penalties and prosecutions—
'4C. A person guilty of an offence under this Part of this Act shall be liable—
New clause 4—Proof and admissibility of certain documents—
'4D— (1) For the purposes of this Part of this Act, a document duly authenticated which purports to be—
(2) A document is duly authenticated for the purposes of—
New clause 5—Evidence—
'4E. In any proceedings in relation to an offence under this Part of this Act it shall be presumed, unless the contrary is shown, that the child named in the order referred to in section (Offence in Scotland of parent etc. taking or sending child out of United Kingdom) (1) above, or in any copy thereof, is the child in relation to whom the proceedings have been taken.'
§ Mr. Wood
The new clauses which I have tabled, which are intended to form part II of the Bill and relate to Scotland only, arose out of discussions in Committee. At that time, hon. Members raised certain questions about the Bill's application to Scotland and the consequences of that, and my hon. Friend the Under-Secretary and I said that we were looking at these matters, as were Scottish Ministers. There will not be time for me today to explain the new clauses in detail, but they have been discussed with Scottish Ministers and, in particular, with my right hon. Friend the Secretary of State for Scotland and my right hon. and learned Friend the Lord Advocate.
Hon. Members will recollect that in Committee we discussed the Bill's application to Scotland. A general question was raised of the extent to which the Bill applied to Scotland and, if it did, how it related to existing Scots law. Another point of special concern to hon. Members was to ensure that there was no loophole in the Bill by which English parents might avoid the provisions of clause 1 by leaving England or Wales and, via Scotland, leaving 1305 the United Kingdom. To meet those points, especially the second one, I have tabled the new clause that we are discussing.
It was suggested that an English parent might evade the provisions of the Bill by going to Scotland and, after a short period, leave the United Kingdom. Clearly, we wish to avoid that and it is important that the Bill should be as watertight as possible. The amendments related to Scotland should achieve that. Taken together, the new clauses, if agreed, will form part II of the Bill.
The first new clause is important. It creates an offence for a parent to remove a child from the United Kingdom without appropriate consent. It is similar in many respects to clause 1 but there are differences to reflect different Scottish circumstances. The other new clauses are essentially consequential, conferring a power to arrest, setting out the mode of trial and so on.
Before I turn to the content of the new clauses, I should explain one major difference between what is provided for Scotland and what the Bill already provides for England and Wales, in case anyone should think that there has been an omission.
There is nothing in any of the new clauses equivalent to what is provided for England and Wales in clause 2 of the Bill. Hon. Members will remember that clause 1 deals with abduction of children by a parent, or other connected persons, whereas clause 2 deals with the abduction of children by third parties — what we might call straightforward kidnapping.
What is provided for Scotland in the new clauses relates only to clause 1. I am advised that there is no need for any provision parallel to clause 2 for Scotland, because that matter is already covered in Scotland by the common law. I am given to understand that much of the criminal law of Scotland remains at common law, rather than being codified in statute. No doubt Scottish Members would seek to persuade me of the advantages of that, but that is not an argument that we ought to get into this morning.
The abduction of children is dealt with in Scotland by the common law crime of plagium, which is a crime of stealing a child. The essence of that crime is of removing a child from the lawful custody of its parents, or indeed from someone else who has lawful custody of it. Technically speaking, it is an aggravated form of theft, and proceeds on the assumption that a child is the property of its parents, and that removing it is stealing. It applies to younger children, and the kidnapping of older children is dealt with at common law by the crime of abduction. As these are common law crimes, the maximum penalties are not set down in statute, but instead depend on the powers of the court before which the case is taken. A particularly serious case could be taken in the High Court where the penalties available include imprisonment for life. There is, therefore, already adequate provision in the criminal law of Scotland to cover the kidnapping of children by third parties, and I hope that hon. Members will agree that the Bill need do nothing more about that subject.
The provisions of the Bill for England and Wales are, to a considerable degree, based on recommendations of the Criminal Law Revision Committee, in its report on offences against the person. I am grateful to the committee and its chairman for the work done and help given. However, its report related only to England and Wales, 1306 and especially to the Offences Against the Person Act 1861, which does not apply to Scotland. The criminal law of Scotland has not had the benefit of a similar review and consultation. I understand that my right hon. Friend the Secretary of State for Scotland is considering whether he should seek similar appropriate advice in relation to Scotland. What this Bill provides for Scotland may be regarded as fulfilling an immediate need, pending a more thorough review, which it has not been possible to complete in the timetable of this legislation, especially between Committee stage and today.
As I said earlier, the provisions are designed to remove a potential loophole identified at an earlier stage in relation to English parents. I hope that the House will agree that that result is achieved.
New clause 1 creates an offence of removing a child from the United Kingdom without the appropriate consent. It applies only to a parent or other person connected with a child, the definition of such a person being the same as in England and Wales. In addition, it applies to children who are the subjects of court orders, and the relevant orders include any order made by an English court or any order, whether an interim or substantive order, of a United Kingdom court prohibiting removal of the child from the United Kingdom or from any part of it. The consent necessary is that of the other parent or the court which made a custody order. If the child has been made a ward of court, however, the consent of the other parent is not sufficient and the court's permission must be obtained. A further important safeguard is that if the child is subject to an order prohibiting his or her removal from the United Kingdom no consent will suffice and a parent wishing to remove the child will have to seek the lifting of the order
§ Mr. Gordon Wilson (Dundee, East)
Will the hon. Gentleman explain the impact of these provisions in the following circumstances? First, if a child domiciled in Scotland is taken to England and a court order is obtained in England—the English courts tend to be somewhat aggressive in taking jurisdiction over parties and children over whom they should have no authority in these matters —which law would apply? Secondly, if an order of the Scottish court permitting custody of the child clashed with an English order, could the English decision overrule the Scottish decision to the extent that the child could not be taken out of the jurisdiction of a court in the United Kingdom even though there was legal authority for that to happen?
§ Mr. Wood
I must take care not to get into complicated battles between the English and Scottish courts. My hon. Friend the Under-Secretary of State for Scotland may be able to help in this regard. On the first question, one must bear in mind exactly where the child is and where it is domiciled at the time of the offence. If the child is in England or Wales, clause 1 would apply. If the child was domiciled in Scotland, the Scottish clause would take effect
§ Mr. Wilson
The hon. Gentleman will appreciate the difference between domicile and residence. If the child is domiciled in Scotland but resident in England, which law will apply?
§ Mr. Wood
Before pursuing that further, I should perhaps allow my hon. Friend the Under-Secretary of State 1307 for Scotland to respond, as I believe that he has looked into the matter carefully and it is a sufficiently delicate matter to call for a ministerial response.
New clause 2 confers a power of arrest in relation to the offence. No parallel provision is necessary for England and Wales as the maximum penalties attracted to the offence by clause 4 automatically make it an arrestable offence. I am advised, however, that specific provision is needed in the case of Scottish law.
New clause 3 is also consequential on new clause 1 and sets out the mode of trial and maximum penalties for offences under new clause 1. They differ from the maximum penalties provided for England and Wales, as the latter must be high enough to cater for the case of forcible kidnapping under clause 2, which is not dealt with in the Scottish provision. Such matters in Scotland are dealt with at common law when the maximum penalty on indictment in the High Court would be life imprisonment. Therefore, the penalties in Scotland under this clause are set in line with Scottish contempt of court penalties. New clause 1, is in a sense, a contempt of court, as it applies only in cases where a court order, whether substantive or interim, has been made.
New clauses 4 and are also consequential upon new clause 1. They relate to evidence in court proceedings in Scotland and allow the judgment of a court in the United Kingdom to have what is called probative force in a Scottish court, just as Scottish court judgments already do. There is, of course, the possibility of proving otherwise if the matter is in dispute. New clause 5 creates a presumption that the child named in such an order is the child in respect of whom the proceedings are taken, thus saving the necessity of proof of a fact which will not be in dispute in the majority of cases. If it is in dispute, evidence can he led.
§ The Under-Secretary of State for Scotland (Mr. John MacKay)
First, I congratulate my hon. Friend the Member for Stevenage (Mr. Wood) on the Bill. We all know of the heart-breaking cases that are reported in the papers or, as my hon. Friend mentioned, which are brought to us by our constituents.
It is not so long since I encountered a case that the Bill would have covered. The father had removed the children from the jurisdiction of the Scottish — or indeed any United Kingdom — court, and the mother, who was undoubtedly the aggrieved party and would have been granted custody, was therefore faced with the awful problem of having to go to the United States to try to sort the matter out.
I am delighted to say that in that case the matter was sorted out and the children were returned to the United Kingdom. Indeed, as a result of the work that was done, the couple have been reunited. That was one case in which there was a happy outcome, but that does not happen every time. Therefore, it is important that we look seriously at the matter. Great heartbreak is caused to a small number of people and great distress to the public when they read about such matters. In the words that are usually used, they feel that something should be done about it. My hon. Friend is to be congratulated on doing something about it.
May I also congratulate my hon. Friend on his speech telling us about the new clauses that will form part II of the Bill, which covers Scotland? In a previous Parliament he may well have talked himself into becoming one of the members of the Scottish Grand Committee, with his 1308 exposition of Scottish law. But he is lucky because those days are over and English Members no longer have to listen to us in the Scottish Grand Committee. I do not know whether that once happened to you, Mr. Deputy Speaker, but I know that it does not happen now.
The Bill's application to Scotland is to cover two distinct matters. One is the case of children living in Scotland and that is covered by the new clauses that will form part II of the Bill. My hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) has apologised to me for having to leave the Chamber. However, I can tell him that the Bill will also cover the case of children taken from England to Scotland and then abroad.
My hon. and learned Friend also mentioned the case of children in care. That is not directly covered in any of the amendments, but it. may already be dealt with by the existing common law of plagium. This last issue is one that my right hon. Friend the Secretary of State for Scotland will ask the Scottish Law Commission to consider.
I may be able to answer the question asked by the hon. Member for Dundee, East (Mr. Wilson). The forthcoming report of the Law Commission on reciprocal enforcement will, we hope, deal with conflicts between court orders. I am advised that questions of domicile and residence are irrelevant in terms of the Bill
§ Mr. Wilson
I welcome the comments about domicile and residence, but it has been stated that there was to be a report on the problems of conflicts in jurisdiction, if any should arise. Is the Under-Secretary satisfied that, given the timespan within which the Law Commission will report, we shall not, in passing the new clause and the amendments that the Minister will move in due course, create a situation in which conflict will occur if no solution has been found by the Law Commission to sort the problem out?
§ Mr. MacKay
As the report is expected reasonably soon, we can leave that problem to one side.
There are only very few cases in any one year, and the number of cases which will involve conflict between United Kingdom courts will be even fewer.
As my hon. Friend the Member for Putney (Mr. Mellor) mentioned at an earlier stage, we have an opportunity to do something about the problem of children being taken abroad by a parent, and because of the pressure of legislation such opportunities do not arise very often. It would be wrong for us to wait until we can dot all the "i"s and crossed all the "t"s before we take advantage of this opportunity from a Scottish point of view of the knock-on effect of my hon. Friend's Bill.
The amendments of my hon. Friend the Member for Eastwood (Mr. Stewart) to the new clause seek to make the same changes for Scotland as have been made for England and Wales in clause 1 in respect of the burden of proof. The effect of the Scottish amendments would be the same as those agreed for England and Wales. Instead of the accused having to prove that he believed that he had the necessary consent to take the child out of the country, he need only raise the matter in the court and it would be for the prosecution to prove beyond reasonable doubt that he did not believe it.
There is no need for explicit provision to specify where the burden of proof will lie, as there has been in the amendments for England and Wales. I am advised that the 1309 desired consequences will follow for Scotland automatically, and there is no sense in cluttering up the statute book with unnecessary provisions.
A number of hon. and hon. and learned Members have spoken on this issue and I should like to go into more detail on some of the points. Hon. Members have asked why there is no provision for Scotland equivalent to subsection (5)(a) of clause 1. The reason is that the effect of the subsection is automatically achieved for Scotland without explicit provision. The general rule, following the case of Earnshaw, is that where there is some exemption to an offence—for example, the phrase, "without reasonable excuse" — and no explicit provision as to the onus of proof, it will be for the defence to have the evidential burden of raising the matter in court, and it will then be up to the prosecution to show beyond reasonable doubt that it does not apply. There is therefore no need for a provision equivalent to clause 1(5)(a).
We also discussed the provision in the English and Welsh part for the accused to claim that consent had been unreasonably withheld by the other parent. We have not included that provision in Scotland, as close examination of the two clauses shows that there is no difference. The unreasonable withholding of consent will exempt the person from clause 1 only when no court order has been granted, as provided by clause 1(5)(a). New clause 1, which applies to Scotland, applies only when a court order of some sort has been granted. Therefore, to be on all fours with the corresponding English provision, there is no need for reference to the unreasonable withholding of consent.
The amendments make similar changes to the burden of proof in the Scottish provision in new clause 1. The matter has been discussed in detail, especially in regard to the mental element in crime, which was raised by my hon. and learned Friend the Member for Burton (Mr. Lawrence), as to whether what must be proved is objective or subjective. In Scotland, when considering the mental element, Scottish courts have tended to take a rather more objective line. Those who are interested should examine the recent Scottish Law Commission report on the mental element in crime. I am advised that the effect will be substantially the same as that which we have already discussed with regard to the law in England. Amendment (c), which has been tabled by my hon. Friend the Member for Eastwood, the Under-Secretary of State for Scotland, corrects a small error. At the moment, new clause 1 does not define for Scotland what is meant by the word "guardian" as clause 1 does for England and Wales. I think that the House will agree that that is necessary. It introduces the same definition as clause 1 and is consistent with the definition in other Scottish legislation. The amendment therefore corrects a minor defect and I hope that that will be acceptable to the House.
Having explained the amendments, I am sure that the Bill will mark a considerable improvement in how we deal with children in the difficult circumstances of marriage break-ups. It will prevent some of the heartbreaking cases that we have all heard about from constituents and which the public have witnessed and read about in the newspapers
§ Mr. Wood
I should like to welcome the amendments tabled by my hon. Friend the Under-Secretary of State for 1310 Scotland. The other amendments are purely the drafting consequentials of introducing the new clauses relating to Scotland. They will form part II, and approporiate reference has had to be inserted to take account of that
§ Question put and agreed to.
§ Clause read a Second time.
§ Amendments to the new clause made: (a), in subsection (1) leave out 'subsection (4)' and insert 'subsections (4) and (4A)'.
(b), leave out subsection (4) and insert—
'(4) In relation to a child to whom subsection (1)(a)(i) above applies, a person does not commit an offence by doing anything without appropriate consent if—
(4A) In proceedings against any person for an offence under this section it shall be a defence for that person to show that at the time of the alleged offence he had no reason to believe that there was in existence an order referred to in subsection (1) above.'.
(c), at end add—
'(6) In this section "guardian" means a person appointed by deed or will or by order of a court of competent jurisdiction to be the guardian of a child. '.—[Mr. John MacKay.]
§ Clause, as amended, added to the Bill.