HL Deb 24 April 1995 vol 563 cc1-26GC

Monday, 24th April, 1995.

The Committee met at five o'clock.

[The Deputy Chairman of Committees (Lord Murton of Lindisfarne) in the Chair.]

The Deputy Chairman of Committees

I think it will be for the convenience of the Committee if I remind Members of the procedure which is followed in special Public Bill Committees. The procedure of this Committee is, so far as possible, that of a Committee of the Whole House. Noble Lords speak standing, and so far as is practicable, observe the same degree of formality as in a Committee of the Whole House.

When there is a Division in the House, it is for the Committee to decide whether to adjourn for a. fixed time, or until the result of the Division is announced in the House. In the past, it has been found that 10 minutes is a convenient time for which to adjourn, and I therefore suggest that this is the course for the Committee to follow. Is that agreeable?

The procedure for a Division in this Committee is as follows: six minutes after the Question has been put, or earlier if all Members of the Committee are present, the Chairman will say, "Lock the doors". No tellers are appointed and as soon as the doors are locked, the Chairman puts the Question for the second time, and, if it is still challenged, the Clerk will read out the names of the Members of the Committee. Each Member, when his name is called, replies "Content", "Not Content" or "Abstain". The Clerk then hands the Chairman a paper showing the numbers who have voted and the result is announced in the usual way. The doors are unlocked and the Committee continues its consideration of the Bill. A Division in this Committee will be broadcast on the annunciators. Strangers are not required to leave the room when a Division is called.

Perhaps I could also remind your Lordships that when you rise to speak you should push the button on the microphone in front of you to switch it on. You should push the button again to switch off the microphone when you have concluded speaking. That is the end of my remarks.

The Question is, that the Title of the Bill be postponed. As many as are of that opinion will say "Content", to the contrary, "Not-Content".

Members of the Committee

Content.

The Deputy Chairman of Committees

The "Contents" have it.

Title postponed.

Clause 1 agreed to.

Clause 2 [Associated persons]:

Baroness David moved Amendment No. 1:

Page 2, line 1, at end insert—("( ) they have at any time agreed to marry each other (whether or not the agreement has been terminated)").

The noble Baroness said: What I am aiming to do in this amendment is to put back into the Bill one of the conditions in Clause 2 of the Law Commission Bill. The first four conditions in the Bill before us are the same as for the Law Commission Bill, but I wish to add the fifth paragraph in the Law Commission Bill, which states that associated persons will be those that have at any time agreed to marry each other, whether or not the agreement has been terminated.

Why I am convinced that this paragraph should be put back in the Bill is really because of what Mrs. Justice Hale said to us when she gave evidence, and I do not think I can do better than to cite what she said because that puts my case completely: The next point is including the two categories that we proposed but the Government has decided not to adopt, and I certainly hope that you would give very careful consideration [that is, the Committee] to reinserting at least one of those and preferably both. I was glad to see that so many of your respondents have also taken the same view. The point about which I am particularly concerned—and it is the point to which the President of the Family Division refers to in his evidence, when he says he understands I am going to make a point and he agrees with it, it is this point—that is the question of couples who have been engaged to marry one another. It seems to me that the fact that this can sometimes be disputed and/or difficult to prove, is not a sufficient reason to deny relief in the very many cases when it is not in dispute or is easy to prove. Usually an agreement to marry is quite easy to prove and is frequently not at all in dispute. The relationship may have been at least as long and the emotions just as intense as many cohabitations or even marriages, and the need for protection or a remedy just as great. I also find it something of an affront to those quaintly old-fashioned couples who do not live together before they marry, that they should be denied a remedy given to those who do live together, either before or with no thought of marriage. They may also have acquired a property, which is intended to be their matrimonial home when they marry, and there is a strong case for allowing occupation orders between them—at least if they are jointly entitled, or in favour of the one who is entitled—so as to sort out what is to happen to that house in the short term before it can be disposed of, or whatever. I could even see a case for extending all of the occupational remedies to them, on the basis that if they have obtained a house that was intended to be their matrimonial home, it ought to be possible to deal with it, whatever the position is as to its legal ownership or tenancy.

I was also supported in my wish to put this back into the Bill by the evidence that we had from Victim Support. It said: We welcome the fact that the Bill widens the list of categories of those who may apply for Orders. However, we very much regret the fact that two categories recommended by the Law Commission—those who at any time had agreed to marry each other and those who have or have had a sexual relationship with each other—were rejected. The reasons for our concerns are as follows

and this applies to my amendment Those who had agreed to marry: We are concerned that this omission may disproportionately affect members of some ethnic minority groups where formal agreements to marry are customary and where co-habitation may not be involved.

That makes the case that I want to put. I beg to move.

The Lord Chancellor (Lord Mackay of Clashfern)

As your Lordships know, I have taken the view that this amendment is not appropriate. I believe that it would introduce into the Bill a category of persons who could have considerable difficulties in relation to definition and proof as part of the domestic violence jurisdiction. I believe that the important point as regards that jurisdiction is that it may often be needed in emergency situations. If it is difficult for the court to establish a jurisdiction, it is likely to affect the speed with which a remedy may be granted. That would defeat an important object of the domestic violence legislation—a fast remedy for the protection of an applicant.

I believe that it is not necessary for those who have agreed to marry to be included as a separate category within the Bill. Many people who could fall under this category will already be included within the wide range of other applicants able to apply for remedies, particularly the categories of cohabitants or the parents of a child. Those who do not fall within the categories in the Bill are, of course, able to apply for remedies under the law of tort. In my view, the law of tort is more suitable in this context than the domestic violence jurisdiction. In particular, the parties would never have lived together and thus a potential applicant will have a separate residence so that the regulation of property rights is likely to be less relevant. There is also the consideration that parties may not be in such a vulnerable position as others who are resident in the same household as their attacker, and may have nowhere else to go. However, if they are in such a position, the law of tort will be available to them.

As the noble Baroness has mentioned, some of the witnesses spoke in favour of extending this, including Mrs. Justice Hale, who suggested that this would require careful consideration. Mrs. Justice Hale I think accepted that there would be circumstances in which this category would be quite difficult to prove, and that is the problem that I have in accepting the amendment. The amendment, in its present form anyway, cannot distinguish between cases where the proof is difficult and cases where it is not. I think it is particularly important that the Family Law Bar Association and Judge Fricker, who are extremely familiar with the day-to-day operation of this jurisdiction, were—as I understood their evidence—against this.

During the evidence, one witness—and I have Judge Fricker in mind here—argued very cogently that if family law remedies were stretched to cover wider issues, it was likely to have an adverse effect on family law, and I think that that is true.

I noticed that in moving her amendment the noble Baroness referred to a situation in which there was a formal agreement to marry. It seems to me that there may be seeds of a possible compromise in this if the amendment could make it clear that it applied only to cases in which the proof of the agreement was very easy. Formal agreement to marry would be one way of doing it, but I am not sure whether that would necessarily be the only way.

It would certainly help to solve my problem if the noble Baroness were able to propose an amendment which excluded the category of case which Mrs. Justice Hale freely accepted was involved—the category where it would be quite difficult to prove whether or not there has been an agreement to marry, and your Lordships will not require me to outline the sort of cases in which that might be very difficult to prove. In the case of quite a long relationship, the real question is: did it amount to an agreement to marry? If you have to try to analyse that over a lengthy relationship, I think that your Lordships will see what the problem is. If that is a preliminary to the jurisdiction, it could be very awkward for the nature of this jurisdiction.

My short answer to this amendment is that it involves introducing into the qualifications categories which may be very difficult to establish in fact in particular cases, and thus would destroy the summary nature of the remedy which is involved here.

Lord Archer of Sandwell

Before the noble and learned Lord sits down, I wonder whether he could assist me, at least—I cannot speak for other members of the Committee—in one respect.

Judge Fricker and, if I remember correctly, the Family Law Bar Association, said that they would prefer not to distort the law of domestic relations, but to rely instead on the development of a new branch of tort. Is it in the mind of the noble and learned Lord to develop that branch of tort in legislation or does he have it in mind to leave it to the judiciary?

The Lord Chancellor

I think it is important that that area should be developed. I have certain proposals in mind relating to privacy which could have an effect on some of this area if by any chance it were to progress by legislation. Even if it did not progress by that method, it might progress by other methods which would have some effect.

I think that the general area of tort that is in issue here may well be a matter for the Law Commission to look at more systematically, and I would certainly wish to consider that as a possibility because I think the judiciary may well develop this area. It is always difficult because it depends on the cases that they get and how suitable they are for making developments. But I certainly have in mind that this is an area of tort law which should not be neglected either by the judiciary, if that happens, or alternatively by promoting legislation after study by the Law Commission.

Lord Meston

I support the amendment proposed by the noble Baroness in view of the arguments that she advanced, although we came to recognise in the course of the evidence that the development of the law of tort so far has perhaps reduced the need for a specific statutory provision under the Bill. It seems clear that the courts have now arrived at a position where there is an enforceable right not to be molested, irrespective of one's marital status. The noble Baroness has identified the points at which somebody seeking relief based on an agreement to marry, who has not co-habited and therefore does not fall within the other provisions of this Bill, would be discriminated against.

It seems to me that the real disadvantage of someone in the position of the claimant that the noble Baroness seeks to introduce under the existing law is that unless they are brought within the provisions of this Bill they have no right to seek a power of arrest attached to any injunction, and that is certainly a considerable disadvantage. The noble and learned Lord the Lord Chancellor suggested a possible compromise which obviously we would need to think about. But if he were suggesting a distinction between those who have entered into a formal agreement to marry and those who rely on some informal agreement, I can see there will be separate and distinct problems of proof and definition thrown up by that categorisation, and it may well be that the very problems which the noble and learned Lord seeks to avoid would, in fact, be aggravated. Family practitioners under other areas of the law are well used to having to decide whether or not there has been an agreement to marry. Very often it turns on a question of whether the man concerned bought a ring, and that usually is decisive, but there are other occasions when a less formal agreement is relied upon.

I would be reluctant to support the idea of a compromise along the lines suggested and, for my part, I support the amendment.

Lord Butterworth

I wish to support this Amendment and I will not take up the time of the Committee but simply say that I was persuaded by the argument of Mrs. Justice Hale. It seems to me somewhat socially maladroit to offer the status of associated person to those who have lived together in the same household but to deny it to those who have done their best and have entered into a contract of marriage, and wrong not to recognise that point.

The Lord Chancellor

I am extremely sympathetic to this point of view if we could overcome the difficulty. As the noble Lord, Lord Meston, says, the Family Law Bar Association, the family law Bar of family practitioners, are accustomed to dealing with cases in which this sort of question is in issue. I do not dispute that. All I say is that my knowledge of these cases suggests that they are not all very short. This is the problem. If you want to have a summary remedy you cannot reasonably construct one in which the requirement is not essential to the real remedy being given. The remedy is against either molestation or in relation to some occupation; that is the real issue.

To have to adopt a long preliminary investigation in order to ascertain whether or not somebody is entitled seems to me to go against that grain, and it is in that spirit that I have suggested the possibility that this class of case could be sub-divided between those that are reasonably easy to prove and could be summarily established, and those that are not. If that can be done, I would be only too happy to go along with it. It is a fundamental difficulty about the way the thing will work, if the amendment opens the field to cases where it is very difficult to prove the agreement, where I am in trouble.

5.15 p.m.

Lord Archer of Sandwell

I confess to being a total Hamlet on this matter, but on Second Reading I was very much in agreement with the Law Commission. It was only in the course of that debate, when we heard from the noble and learned Lord the Lord Chancellor and subsequently when we heard, in particular, the evidence of Judge Fricker that I found myself hesitating.

Judge Fricker is a judge of great experience who has had much to do with this kind of problem. He seemed to be troubled about two matters which are very much interconnected. One is that we were in danger of distorting this branch of the law when what we should be looking for is a different kind of tort; and possibly a tort where the remedy will have a power of arrest attached to it. That is rather too far ahead for us to discuss in detail at this stage.

The other problem is one adverted to a moment ago by the noble and learned Lord the Lord Chancellor. It seems to me to be very important that these proceedings should be despatched expeditiously. There is no difficulty about the courts deciding whether two people have agreed to marry. They have been doing that at least since Bardell v. Pickwick and, indeed, earlier than that.

However, Bardell v. Pickwick, if I remember, was a case which took rather a long time. It is not the kind of time schedule that we have in mind for these proceedings. I am bound to say that I found myself rather marginally persuaded in the end that the Law Commission was misguided in this and that we should be looking rather to the law of tort.

The noble and learned Lord the Lord Chancellor has suggested a possible compromise and I understand what the noble Lord, Lord Meston, says about the difficulties that we might encounter; but it will certainly dispose of the problem of a long hearing with a great deal of evidence and the construction to be placed upon certain acts and words of the parties.

At this stage, I find myself very much still on the tightrope and will probably abstain, but before we reach Report Stage I hope that it may have been possible to reconsider this and that my noble friend may have approached this in the spirit in which the noble and learned Lord the Lord Chancellor suggested a compromise.

Baroness Darcy (de Knayth)

May I join the noble and learned Lord, Lord Archer of Sandwell, on the tightrope for a moment? I found from the evidence, and when the noble Baroness, Lady David, read out her evidence from Victim Support, that most of the people who spoke in favour of including ex-fiancés also very much included those who have or have had a sexual relationship and thought they were equally important. I agree that these are also open to dispute and so I rather followed the path of the noble and learned Lord, Lord Archer, and felt that perhaps we should go for the creation of a tort of harassment.

There is another point. Those giving oral evidence, in particular the police and Mr. McHardy of the Solicitors' Family Law Association, were very much in favour of widening the thing as much as possible to include the stalker as well. I leaned over from the tightrope rather on to the direction of the creation of a new tort of harassment, which would include all these people, but perhaps having said that I will just join the noble and learned Lord, Lord Archer, again.

Baroness David

I refer the noble and learned Lord to one point, to which he did not respond; that is, what Victim Support said about the fact that it may disproportionately affect some members of ethnic minority groups where formal agreements to marry are customary.

The Lord Chancellor

That is precisely the point that seemed to me to offer a hope of dealing with the matter where formal agreements are emphasised. The real difficulty about this from my point of view is not the theoretical question of whether or not they have agreed to marry, it is the difficulty that may well be involved in proof of that.

If the noble Baroness can construct a reasonable qualifying clause to exclude this remedy from cases in which the evidence on agreement to marry is of such a character as to sabotage or undermine the summary nature of the proceedings, that is really what I have in mind. My approach to the compromise arises precisely out of that point, whereas the noble Baroness says that there is usually some formal agreement to marry in these cases which would be capable of almost instant proof.

Lord Brightman

I have been trying, as the argument developed, to think of some form of wording which could be used. I put this forward as a suggestion before—it may sound rather archaic but it existed in the days when it was necessary to have a writing before you could sue for breach of promise. I wonder whether one could say that they have at any time agreed in writing or in some other formal manner. I put that forward simply for consideration.

Baroness David

I should like to thank all noble Lords and the noble Baroness who have spoken, and also the noble and learned Lord for his careful answer. I would just remind him that Mrs. Justice Hale said: It seems to me the fact that this can sometimes be disputed and/or difficult to prove is not a sufficient reason to deny relief in the very many cases when it is not in dispute or is easy to prove.

I totally appreciate the Lord Chancellor's keenness for a speedy remedy and that the whole point about this Bill is to have things dealt with quickly. I do understand that. I should like to consider the possibility of amending my amendment and thinking about it again, and I shall probably come back at the Report stage. At present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 2:

Page 2, line 2, leave out from beginning to second ("or") in line 4 and insert ("in relation to any child, they are both persons falling within subsection (2) below.").

The noble and learned Lord said: In moving Amendment No.2, I would like to speak at the same time to Amendments Nos. 3, 4, 5, 23 and 41. Amendments Nos. 2 and 3 ensure that an unmarried father who has never had parental responsibility for a child is associated with anyone who has or has had parental responsibility. This may be necessary in cases where, for example, a person having parental responsibility for a child needs to be protected from molestation by the unmarried father of that child.

Amendment No. 4 inserts as a separate category prospective adopters or adopters of a child and the birth parents and birth grandparents. Under the Bill as currently drafted it is not defined clearly whether adoptive and prospective adoptive parents are associated with the birth parents. Amendment No. 4 therefore clarifies the position and ensures that birth parents and birth grandparents are associated with the prospective adopters or adopters.

Amendment No. 41 is a consequential amendment that adds the definition of an adoption order to Clause 25 of the Bill. Your Lordships will remember that this point about the relationship between adopting parents and natural parents was raised in the evidence and it is right to give effect to it. Obviously in most cases the confidentiality arrangements prevent anything in the way of a relationship, but cases have been drawn to our attention where that has failed and it is obviously important that a summary remedy should be available.

Amendment No. 5 ensures that a local authority is not associated with another person under Clause 2 of the Bill. As the Bill is currently drafted, a local authority could come under the terms of Clause 2(e) and (f) as it could have parental responsibility for a child or be a party to family proceedings. However, it is not intended or appropriate that local authorities should be able to apply for remedies under Clause 2 of the Bill.

Amendment No. 23 introduces a provision similar to that in Section 10(8) of the Children Act 1989 to require that children should only be able to apply for a non-molestation or occupation order with the leave of the court, and that leave should only be granted if the child has sufficient understanding to make the application. However, in the context of this Bill it has not been thought appropriate to extend this requirement to young people aged 16 or 17, particularly if they are married. Such young people are likely to have sufficient understanding to make application under the Bill and it would be inappropriate to insist on a leave requirement in these circumstances. I commend Amendment No. 2 to the Committee.

On Question, amendment agreed to.

5.30 p.m.

The Lord Chancellor

I beg to move Amendments No. 3, 4 and 5:

Page 2, line 6, at end insert— ("(2) A person falls within this subsection in relation to a child if

  1. (a) he is a parent of the child, or
  2. (b) he has or has had parental responsibility for the child.").

Page 2, line 6, at end insert— ("() In a case where a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976, two persons are also associated with each other for the purposes of this Act if—

  1. (a) one is a natural parent of the child or a parent of such a natural parent, and
  2. (b) the other is the child or any person—
    1. (i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or
    2. (ii) with whom the child has at any time been placed for adoption.").

Page 2, line 6 at end insert— ("() A body corporate and another person shall not by virtue of paragraph (e) or (f) of subsection (1) above be regarded for the purposes of this Act as associated with each other.").

On Question, amendments agreed to.

Clause 2, as amended, agreed to.

Clauses 3 to 6 agreed to.

Clause 7 [Occupation orders where applicant has estate or interest etc, or has matrimonial home rights]:

The Lord Chancellor moved Amendments No. 6:

Page 5, line 44, after first ("and") insert ("housing").

The noble and learned Lord said: I shall speak also to Amendments Nos. 7, 9, 10, 11, 13, 14, 24, 27, 28, 30, 31, 33, 35, 39, 40, 42 to 46 inclusive and 52.

These are all drafting amendments which were raised on consideration of the evidence, and which were prepared in response to questions raised by the Special Public Bill Committee and explained by Parliamentary Counsel in her letter to the Committee.

Amendments Nos. 27, 28, 30 and 31, which remove the word "specified" from Clause 15 in favour of the words "one or more" or "certain" have also been added to this list because they appear to deal with drafting matters. Some people found it difficult to understand what was already in the Bill and we have tried to clarify the situation for them. Whether these are necessary as drafting amendments I am not certain, but it is wise nevertheless to make them. So all of these are properly to be regarded as drafting amendments which do not change any aspect of policy. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7:

Page 6, line 12, after ("is") insert ("as great as or").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 8:

Page 6, line 25, leave out from ("order") to end of line 26.

The noble and learned Lord said: I shall speak also to Amendments Nos. 12, 15, 16, 17, 20, 21, 25 and 36. I first deal with those amendments other than Amendment No. 25.

Amendments Nos. 8, 12, 15, 20 and 36, remove the provisions relating to the variation and revocation of occupation orders from Clauses 7, 9, and 10, and non-molestation orders under Clause 13 of the Bill and replace them with a new Clause 16A. This provides further clarification that an application for the variation or discharge of an occupation order or a non-molestation order may be made by the applicant or respondent; the court can also vary or discharge a non-molestation order made under Clause 13(2)(b) of its own motion.

The proposed new clause also enables the court to vary or discharge a power of arrest independently of the order to which it is attached. This is in order to make it clear to those who might be using only this code just precisely what the position is, although of course it is in accordance with the general law with which ordinary practitioners would be familiar.

Amendments Nos. 16 and 17 extend the ancillary matters which can be included in occupation orders. They give the court power to require either party to take reasonable care of the dwelling house and any furniture or other contents, and to take reasonable steps to keep the dwelling house secure.

Amendment No. 21 provides for a non-molestation order made in other family proceedings to cease to have effect if those proceedings are withdrawn or dismissed. This will prevent the possibility of the order, particularly when expressed in the terms "until further order" being overlooked by the court and continuing in force despite all other proceedings having been terminated. This is a point that senior district Judge Angel made of a practical kind to which your Lordships would wish to give effect.

Amendment No. 25 was put forward in consequence of a desire on the part of some of our witnesses to have clarified the opportunity of a person, in respect of whom an order had been made without notice to that person, to make representations. Again, practitioners would expect that, but it is right to make it express.

Having considered both comment on this amendment, which we were privileged to get from Judge Fricker to whom I sent the amendments for his comment, and also an amendment proposed by my noble and learned Friend, Lord Brightman, I am proposing not to move Amendment No. 25 in its present form, but to move a manuscript amendment in its place, which I hope your Lordships received, through the kindness of Parliamentary Counsel, shortly before the Committee sat.

I will just read it, to make sure that everyone has the right amendment. Page 11, line 4, at end insert, instead of the amendment that I proposed: ("( ) Where the court exercises its powers under subsection (1) above, it shall afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a hearing of which notice has been given to all the parties in accordance with rules of court.")

In the meantime, however, I formally move Amendment No. 8. I beg to move.

Viscount Colville of Culross

Is it in order to speak to the rest of the amendments in the group? I think that it is. I should only like to say that I would have welcomed the noble and learned Lord, Lord Brightman's amendment rather than Amendment No. 25 because it does appear to make explicit what I believe everybody in the Special Public Bill Committee desired; that is, that after an ex parte order there should be an opportunity for the respondent at least to come back and take part in proceedings of which he has had notice.

The other thing that I welcome in it is, I think, the only reference in the Bill to rules of court. There are a number of matters upon which rules of various courts will have to be made, and to have an explicit reference to rules of court here would point the way to quite a number of other applications of rule-making powers at all levels. I therefore would have supported particularly the noble and learned Lord, Lord Brightman's amendment.

On Question, Amendment No. 8, agreed to.

Clause 7, as amended, agreed to.

Clause 8, agreed to.

Clause 9 [Occupation orders where applicant has no existing right to occupy]:

The Lord Chancellor moved Amendments Nos. 9 to 13:

Page 6, line 42, leave out ("which") and insert ("by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, and ( ) that dwelling-house—")

Page 7, line 4, leave out from beginning to ("and") in line 5

Page 8, line 11, after ("is") insert ("as great as or")

Page 8, line 20, leave out from ("months") to end of line 21

Page 8, line 27, leave out ("so entitled") and insert ("entitled to occupy the dwelling-house by virtue of that interest").

The noble and learned Lord said: I spoke to Amendments Nos. 9, 10 and 11 with Amendment No. 6.

I spoke to Amendment No. 12 with Amendment No. 8, and to Amendment No. 13, which is also to Clause 9, with Amendment No. 6. So with your Lordships' leave, I shall move Amendments Nos. 9 to 13 en bloc.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Occupation orders where neither party entitled to occupy]:

The Lord Chancellor moved Amendments Nos. 14 and 15:

Page 8, line 36, after second ("spouse") insert ("cohabitant")

Page 9, line 9, leave out from ("months") to end of line 10.

The noble and learned Lord said: There are two amendments to Clause 10. Amendment No. 14 was spoken to with Amendment No. 6, and Amendment No. 15, which was spoken to with Amendment No. 8. With your Lordships leave, I beg to move these amendments en bloc.

On Question, amendments agreed to.

Clause 10, as amended, agreed to

Clause 11 agreed to.

Clause 12 [Additional provisions that may be included in certain occupation orders]:

The Lord Chancellor moved Amendments Nos. 16 and 17:

Page 9, line 39, leave out ("and").

Page 9, line 41, at end insert— ("(d) order either party to take reasonable care of any furniture or other contents of the dwelling-house, and (e) order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure.").

The noble and learned Lord said: I spoke to these amendments, which are amendments to Clause 12, with Amendment No. 8. Again, with your Lordships' leave I move them together.

On Question, amendments agreed to.

Clause 12, as amended, agreed to.

Clause 13 [Non-molestation orders]:

The Lord Chancellor moved Amendment No. 18:

Page 10, line 19, at end insert — ("( ) In subsection (2) above "family proceedings" includes proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).").

The noble and learned Lord said: I shall speak also to Amendments Nos. 47, 49, 51, 53, 55, 56 and 57. Amendment No. 18 enables the court of its own motion to make a non-molestation order when an exclusion requirement is added to an emergency protection order under the new Section 44A of the Children Act 1989 contained in Schedule 3 to the Bill.

As the Bill stands, the court would already have such a power in relation to an interim care order as the new Section 38A of the Children Act contained in Schedule 3 falls within the definition of "family proceedings" in Clause 25(2) of the Bill. This amendment therefore ensures that the protection of the child by way of a non-molestation order can be achieved in both situations.

Amendments Nos. 49 and 53 add further clarification to Schedule 3 to the Bill in relation to the term "removal of the child". As currently drafted, the Bill provides that the exclusion will terminate if the child is removed from the dwelling-house. However, it is not intended that a temporary removal for, say, a medical examination or an interview should have this effect. These amendments therefore provide that an exclusion requirement included in an interim care order or emergency protection order will cease to have effect where the local authority removes the child to other accommodation for a period longer than 24 hours. The definition in the amendment is intended to avoid the uncertainty inherent in any more general definition of "temporary removal", and the impossibility of covering each specific type of removal which may or may not terminate the exclusion requirement.

Amendment No. 53, paragraphs (4), (5), (8), (9) and (10), reproduces the new Section 38A(4) to (7) of the Children Act 1989, contained in Schedule 3, in the new Section 44A of the Children Act 1989, also contained in Schedule 3.

Amendments Nos. 51 and 55 enable the court to vary or discharge a power of arrest attached to an exclusion requirement under Schedule 3 on application by a person entitled to apply for discharge of the requirement. The court can do this independently of any other provision in the order.

Amendments Nos. 47 and 53, paragraphs (6) and (7), give the court the power, when a power of arrest is attached to an exclusion requirement in an interim care order and emergency protection order, to make the power of arrest of a shorter duration than the other provisions of the order and also to extend it on an application to vary the order.

Amendments Nos. 56 and 57 enable the court to defer payment of any compensation ordered under Schedule 4 where a transfer of tenancy has taken place between a spouse or cohabitant. Where the transferee would suffer greater financial hardship if immediate payment was required than the transferor would suffer if payment were deferred, the court can order payment on a specified date, on the occurrence of a specified event, or by instalments. I beg to move.

Baroness David

May I ask the noble and learned Lord a question about Amendment No. 18? It may not be possible for him to answer it now and I apologise if it is difficult. I was sent a few amendments by the NSPCC, too late to put them down for today, and I suspect that one of them may have the same affect as Amendment No. 18. It reads: Clause 13, page 10, line 16, after the words 'family proceedings' insert— 'or proceedings under Part V of the Children Act 1989'".

I remember that this was discussed in our committee, but, again, it is awkward to answer this now and I am afraid that I have not had time to check it. However, it did occur to me that it might possibly be similar.

5.45 p.m.

The Lord Chancellor

The answer that I can give at the moment is that this does not do all that the NSPCC amendment would do, because the Government's view is that the emergency protection order procedure is special. It is not to be equated with a full family proceedings type of case, and my impression is that the amendment that the noble Baroness has cited to us does go that distance. Without having it to look at in a little more detail, I cannot be absolutely sure, but that is my impression of the previous discussion and of what the noble Baroness has read out. Obviously I shall be glad to have a note of these proposals and write to her after more deliberation.

Baroness David

I thank the noble and learned Lord very much indeed. It is obviously better to leave it for Report Stage. I shall look at it more carefully myself and possibly put down an amendment on Report in order to get a full reply from the noble and learned Lord.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

The Lord Chancellor moved Amendments Nos. 20 and 21:

Page 10, line 29, leave out ("and may be varied or revoked").

Page 10, line 29, at end insert— ("( ) A non-molestation order which is made in other family proceedings shall cease to have effect if those proceedings are withdrawn or dismissed.").

The noble and learned Lord said: Apart from Amendment No. 18, the only amendments that I have to Clause 13 are Amendments Nos. 20 and 21, to which I spoke with Amendment No. 8. With your Lordships' leave, I move these en bloc.

On Question, amendments agreed to.

[Amendment No. 22 not moved.]

Clause 13 as amended, agreed to.

The Lord Chancellor moved Amendment No. 23:

After Clause 13, insert the following new Clause—

Leave of court required for applications by children under sixteen. ("13A.—(1) A child under the age of sixteen may not apply for an occupation order or a non-molestation order except with the leave of the court. (2) The court may grant leave for the purposes of subsection (1) above only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 2. This amendment covers the subject matter of the amendments of the noble Lord, Lord Mishcon, which he has not moved; subject, of course, to the point that we have not made it a requirement of leave in respect of 16 and 17 year-old children—a point we discussed—as they can be married. It was thought wise to apply the leave requirement to children under 16, but, subject to that, this amendment covers the subject matter of the amendments tabled by the noble Lord, Lord Mishcon. I beg to move.

On Question, amendment agreed to.

Clause 14 [Ex parte orders]:

The Lord Chancellor moved Amendment No. 24:

Page 10, line 34, leave our ("as may be prescribed by") and insert ("as would otherwise be required by").

The noble and learned Lord said: I spoke to Amendment No. 24 with Amendment No. 6 and to Amendment No. 25 with Amendment No. 8. It might be appropriate, perhaps in connection with clause stand part, that I make some reference to the European Convention, because it is in this connection that Professor Cretney raised a question. I should like to move the amendment and then perhaps say a word in relation to the stand part debate on Clause 14, as amended.

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

The Lord Chancellor moved the Manuscript Amendment:

Page 11, line 4, at end insert— (" ( ) "Where the court exercises its powers under subsection (1) above, it shall afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a hearing of which notice has been given to all the parties in accordance with the rules of court.")

Lord Brightman

As I circulated my own manuscript amendment together with a note to all Members of the Committee this morning, it is right that I should say that I entirely agree to the amendment proposed by the noble and learned Lord, the Lord Chancellor. I have withdrawn my own manuscript amendment.

The Lord Chancellor

My manuscript amendment adopts the line of my noble and learned friend's amendment, It would not be right for me to take the credit for it without acknowledging that very fully.

On Question, Manuscript Amendment agreed to.

On Question, Whether Clause 14, as amended, shall stand part of the Bill?

The Lord Chancellor

Your Lordships will remember that in the evidence, Professor Stephen Cretney raised the question whether the provisions of the Bill might lead to contraventions of the European Convention on Human Rights. His own conclusion was that, having examined the matter, he thought the answer was no. I should just say that I thought it was right to look at this matter.

It is always difficult to forecast in advance what may happen. The European Convention is applied to the circumstances of a particular case. There may be circumstances in the case that went beyond or were not envisaged in the legislation. The best view I can form is that so long as the rules of court provide for service of orders upon respondents—and that is the point with which we have just been dealing—I think it is highly unlikely that the provisions of the Bill properly carried out would lead to any contravention of the convention.

Clause 14, as amended, agreed to.

The Lord Chancellor moved Amendment No. 26:

After Clause 14, insert the following new Clause—

Undertakings

("14A.—(1) In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from the respondent.

(2) No power of arrest may be attached to any undertaking given under subsection (1) above; and the court shall not accept an undertaking under that subsection in any case where apart from this section a power of arrest would be attached to the order.

(3) An undertaking given to a court under subsection (1) above shall be enforceable as if it were an order of the court.

(4) This section has effect without prejudice to the powers of the High Court and the county court apart from this section.").

The noble and learned Lord said: With this amendment I would like to speak also to Amendments Nos. 29, 32, 34, 37, 38, 48, 50 and 54.

Amendment No. 26 inserts a new clause which allows the courts to accept an undertaking from the respondent instead of making an order. This was a point that your Lordships will remember was raised in the deliberations of the Special Public Bill Committee. This is already common practice in the county courts, although the magistrates' courts do not have this power.

The proposed amendment will mean that all relevant courts have the same power. Amendments Nos. 50 and 54 deal with undertakings in relation to the exclusion requirement of emergency protection or interim care orders.

Amendment No. 29 provides that when a court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. The amendment also allows any power of arrest attached to an order to be extended on an application to vary or discharge the order. The amendment is introduced to give the courts greater flexibility concerning the attachment of a power of arrest and will not apply where the power of arrest is mandatory. It is only discretionary powers to which this will apply.

Amendment No. 32 allows the court to attach conditions before releasing a respondent on bail to secure that he or she does not interfere with witnesses or otherwise obstruct the course of justice. This provision may be of assistance in cases where the court believes that the respondent may attempt such interference.

Amendment No. 48 is a consequential amendment. Your Lordships will remember that this was suggested arising out of the evidence and looking at the way in which the Bail Act operates, but we have not sought to incorporate the Bail Act provisions in the Bill.

Amendment No. 34 adds further clarity to Clause 16(1) and provides that the court should only consider a power of remand under Clause 16 (1) where it has reason to consider that a medical report will be required.

Amendment No. 37 gives the magistrates' courts the same power to make hospital orders under Sections 37 and 38 of the Mental Health Act 1983 as they have in the case of a person convicted of an offence punishable on summary conviction with imprisonment. The superior courts already have this power in respect of civil contempt proceedings. Your Lordships will remember that this point was raised on a note by Mr. Justice Brooke, the Chairman of the Law Commission, towards the end of our proceedings.

Amendment No. 38 clarifies that all courts within the definition of relevant judicial authority shall have the power to deal with contempt proceedings, and that makes plain the general idea that these jurisdictions, subject to the allocation orders and so on, should be comprehensive and unified jurisdictions. I beg to move Amendment No. 26.

Viscount Colville of Culross

I welcome this group of amendments very warmly indeed. There are two underlying themes in it, both of which appear to me to he wholly admirable. First, we are bringing into line all the powers that currently are available, and will be under the Bill, to the High Court and to the County Courts so that the magistrates' courts can have exact parity of powers, which is what was always intended in the first place, but which they did not have in all respects under the drafting of the Bill. Secondly, we are ensuring that the whole of the enforcement of the Bill is done through the common law powers of the court to deal with contempt, and not, incidentally, very largely under the Contempt of Court Act, with the concomitant point that I would like to ask the noble and learned Lord about in one moment.

However, as regards Amendment No. 34, I should like confirmation of a number of points which have caused a good deal of discussion outside the purlieus of Parliament. Does the new phrase which introduces the powers in Clause 16 in fact put the court in total charge of the medical report for the purposes of obtaining, as to how it is to be obtained, and what is to be done with it when it has been obtained, because this has been the subject of some dispute? I would be very grateful if clarification could be given on that.

Secondly, there are on the face of the Bill still two matters which do not appear to be dealt with. They have in fact been dealt with under Amendment No. 38, although it does not say so and it might be just as well to ask the noble and learned Lord to confirm that that is so. Currently, contempts which do not really apply to the magistrates' court very much at the moment, but which will in the future, are dealt with by, among other things, fines and suspended sentences. I have had my own doubts about whether the existing powers of the magistrates' courts under Section 63 of the 1980 Act cover the power to fine, because it talks in fact about default payments. There is no provision anywhere in this legislation at the moment which deals with suspended sentences, although in the County Courts contempts are frequently dealt with by that means. It that is so, then they should be able to be in the magistrates' courts as well.

I therefore would offer to the noble and learned Lord a short passage from a judgment of the noble and learned lord, Lord Denning, in 1970. He said: I hold, therefore, that a judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the [Criminal Justice] Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence. I have often heard a judge say at common law, for ordinary offences, before these modern statutes were passed: 'I will bind you over to come up for judgment if called upon to do so. Mark you, if you do get into trouble again, you will then be sentenced for this offence. I will make a note that it deserves six months' imprisonment. So that is what you may get if you do not accept this chance.' That is the common law way of giving a suspended sentence. It can be done also for contempt of court

I read that passage because I believe that there are a number of people outside this Committee who will wish to follow our proceedings on what appears to be an important group of amendments. If I am correct in thinking that Amendment No. 38 carries with it implicitly, because it refers to the common law power to deal with contempt of court, a power to fine and a power to suspend any sentence, then that, I believe, clears up all the remaining points that I had and which I was worried about at the beginning of the Special Public Bill Committee proceedings. I hope I am right in this and I hope the noble and learned Lord the Lord Chancellor will be able to confirm it.

If I may say so in conclusion, I have not previously been a member of a Special Public Bill Committee, but the complexity of the points that are contained, and indeed resolved, in this group of amendments are fairly substantial, and I am confident that it would have been absolutely impossible to get to the stage that we have now reached in this group of amendments if it had had to be done on the Floor of the Chamber—putting forward tentative amendments to meet one point or another only to have them rejected on drafting grounds or because they were inadequate or improperly thought out. I believe that this is an admirable example of the sort of progress that can be made very swiftly by the proceedings that have been adopted.

6 p.m.

Lord Meston

I also join in thanking the noble and learned Lord for these amendments, which indeed meet many of the practical problems that have been thrown up in the course of the evidence. In particular, I welcome the introduction of the ability of the magistrates' courts to receive undertakings. Practitioners who are naive enough—and I include myself in that—in days gone by to have tried to resolve a case in the magistrates' court by offering undertakings have traditionally met a bewildered Bench and a very irritated clerk of the court.

Having said that, I ask one question. It may be that I did not hear the noble and learned Lord correctly. Is it the intention that a power of arrest can, in certain circumstances, be attached to an undertaking as distinct from an order? I notice that there is a specific provision in Amendment No. 54 which relates only to undertakings in certain specific circumstances and says that no power of arrest may he attached to any undertaking given under the new Section 44B.

I am not clear whether it is intended that a power of arrest might be attached to an undertaking given under the main body of the Bill, and I would welcome clarification.

The Lord Chancellor

May I take that last point first? My intention would he that the undertaking would not have a power of arrest attached to it; hut, on the other hand, the powers of the court to deal with the matter as if it were a contempt would arise on the breach of the undertaking. So there would he another stage before an arrest would arise. The ordinary way in which that would be developed, if it was wanted to go down that road, would be, of course, to apply for a warrant of arrest. That is my intention and I believe it is what was wanted.

I now turn to my noble friend Lord Colville's questions. The amendment to Clause 16 (1) is intended simply to introduce as a preamble the basis on which the court should have power to ask for a medical report. It is that they consider that the medical report will be required. My view of Clause 16 as it stands is that the court is receiving the medical report for the purpose for which it considers that the medical report is required by the court, and therefore the court has complete power over the report.

It may be that this issue within which a report should be handled is an issue which would require to he elaborated in detail in rules of court. But my intention so far as concerns the primary legislation is that the amendment should make clear the basis on which a report is asked for, and then that Clause 16 itself, with that amendment in place, leaves the court in control of the report, as it is submitted.

I come to a slightly more difficult question as regards Amendment No. 38: The powers of the court in relation to contempt of court arising out of a person's failure to comply with an order under this Act may be exercised by the relevant judicial authority.

The idea is that the powers of the court are of course defined, but it means that anyone following under the description of the relevant judicial authority will have the powers of the court. This arises most directly in relation to the district judge and his or her powers.

So far as concerns the magistrates' courts' powers, they are already dealt with; they are statutory powers. The power upon which I rely to give the magistrates jurisdiction in dealing with this matter is in the section to which the noble Lord referred, but it is wide enough to cover this kind of situation because it is a power to deal with the kind of default that would arise if there was failure to obey one of these orders. That is my answer. It means that the common law powers are essentially powers of the High Court judge and the powers of lower courts are basically statutory powers, and I rely on these in this connection.

Viscount Colville of Culross

In that case it is something to which I would like to return at a later stage, for this reason: if the county court is currently passing suspended sentences for contempts of the legislation which is going to be replaced by this Bill, they must have some statutory jurisdiction to do so. They certainly are not relying upon the Criminal Justice Acts, let alone upon the Criminal Justice Acts limited as they now are since 1991 to very exceptional circumstances. I do not know what powers they are relying on when they impose suspended sentences, but they certainly do impose suspended sentences and it is a useful remedy for them to have. I hope that therefore may be clarified.

So far as concerns the magistrates' courts, if we are to give the magistrates' courts parity of powers and jurisdiction, which is the whole thesis that underlies the Bill, then they too will have to have statutory powers if they cannot do it under the common law power that the noble and learned Lord, Lord Denning, was talking about in the passage from which I read. I therefore very earnestly ask the noble and learned Lord, the Lord Chancellor to look at this again, because I believe that suspended sentences are something that ought to be clarified so that they can continue to be used in suitable cases. Certainly I will not go back to the question of Section 63 if the noble and learned Lord thinks they can fine under it, which is what they are doing now, although with some misgivings. I am certainly not going to interfere with that situation. As for suspended sentences, I am afraid I am not at the moment content that there are necessary powers.

The Lord Chancellor

Obviously I shall be happy to look into that further. It is perhaps important to say that what I have sought to do is to use the contempt jurisdiction of the levels of court to deal with contempts under the Bill. It is pretty clear, I think, that the precise range of powers that may be had may well increase as one goes up the judicial ladder. It would be wrong, therefore, to say that there is parity of power in the sense that all courts have exactly the same powers, but it is right to say that attached to this jurisdiction will be the contempt power that is appropriate for that level of court. Obviously, the allocation of jurisdiction, and so on, may take account of that in making orders under the Bill, when it becomes an Act, for deciding into which court particular types of proceedings should go.

On Question, amendment agreed to.

Clause 15 [Arrest for breach of order]:

The Lord Chancellor moved Amendments Nos. 27 to 33:

Page 11, line 11, leave out ("specified") and insert ("one or more").

Page 11, line 17, leave out ("specified") and insert ("one or more").

Page 11. line 22, at end insert— ("(3A) Where, by virtue of subsection (3) above, the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. (3B) Any period specified for the purposes of subsection (3A) above may be extended by the court (on one or more occasions) on an application to vary or discharge the relevant order.").

Page 11, line 24, leave out ("specified") and insert ("certain").

Page 11, line 28, leave out ("specified") and insert ("certain").

Page 12, line 7, at end insert— ("(9A) Where a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule 2 to this Act or in a magistrates' court under section 128 or 129 of the Magistrates' Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.".

Page 12, leave out lines 8 to 13.

The noble and learned Lord said: I spoke to Amendments No. 27 and 28 with Amendment No. 6. I spoke to Amendment No. 29 with Amendment No. 26. I spoke to Amendments Nos. 30 and 31 with Amendment No. 6. I spoke to Amendment No. 32 with Amendment No. 26. I spoke to Amendment No. 33 with Amendment No. 6. Therefore, with your Lordship's leave, I move these amendments to Clause 15 en bloc.

On Question, amendments agreed to.

Clause 15, as amended, agreed to.

Clause 16, [Remand for medical examination and report]:

The Lord Chancellor moved Amendments Nos, 34 and 35:

Page 12, line 14, at beginning insert ("Where the relevant judicial authority has reason to consider that a medical report will be required".

Page 12, leave out lines 28 and 29.

The noble and learned Lord said: I spoke to Amendment No. 34 with Amendment No. 26 and to Amendment No. 35 with Amendment No. 6. With your Lordships' leave, I move these amendments en bloc.

On Question, amendments agreed to.

Clause 16, as amended, agreed to.

The Lord Chancellor moved Amendment No. 36:

After clause 16, insert the following new clause—

Variation and discharge of orders.

("16A.—(1) An occupation order or non-molestation order may be varied or discharged by the court on an application by—

  1. (a) the respondent, or
  2. (b) the person on whose application the order was made; but, in the case of a non-molestation order made by virtue of section I3(2)(b) of this Act, the order may be varied or discharged by the court even though no such application has been made.

(2) Where, by virtue of section 15(3) of this Act, a power of arrest has been attached to certain provisions of an occupation order or non-molestation order, the court may vary or discharge the order under subsection (1) above in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).").

The noble and learned Lord said: I spoke to this with Amendment No. 8. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 37: After Clause 16, insert the following new Clause—

Power of magistrates' court to order hospital admission or guardianship.

("16B. A magistrates' court shall have the like power to make a hospital order or guardianship order under section 37 of the Mental Health Act 1983 or an interim hospital order under section 38 of that Act in the case of a person suffering from mental illness or severe mental impairment who could otherwise be committed to custody for breach of a relevant requirement as a magistrates' court has under those sections in the case of a person convicted of an offence punishable on summary conviction with imprisonment.

(2) In subsection (1) above "a relevant requirement" means—

  1. (a) any requirement of an occupation order or non-molestation order;
  2. (b) an exclusion requirement included by virtue of section 38A of the Children Act 1989 in an interim care order made under section 38 of that Act; or
  3. (c) an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 26. I beg to move.

On Question, amendment agreed to.

Clauses 17 to 21 agreed to.

The Lord Chancellor moved Amendment No. 38: After Clause 21, insert the following new clause—

Contempt proceedings

("21 A. The powers of the court in relation to contempt of court arising out of a person's failure to comply with an order under this Act may be exercised by the relevant judicial authority.").

The noble and learned Lord said: I spoke to this with Amendment No. 26. I beg to move.

On Question, amendment agreed to.

Clause 22 [Magistrates' courts]:

The Lord Chancellor moved Amendment No. 39:

Page 15, line 23, after ("interest") insert ("or contract").

The noble and learned Lord said: I spoke to this with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 [Appeals]:

The Lord Chancellor moved Amendment No. 40:

Page 15, line 36, leave out ("22(4)") and insert ("22(2)").

The noble and learned Lord said: I spoke to this with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 agreed to.

The Lord Chancellor moved Amendments Nos. 41 to 45:

Page 16, line 28, at end insert— (""adoption order" has the meaning given by section 72(1) of the Adoption Act 1976;").

Page 16, line 34, at end insert— (""development" means physical, intellectual, emotional, social or behavioural development").

Page 16, leave out lines 40 to 43 and insert—

  1. ("(a) in relation to a person who has reached the age of eighteen years, means ill-treatment or the impairment of health, and
  2. b) in relation to a child, means ill-treatment or the impairment of health or development;
health" includes physical or mental health; ill-treatment", in relation to a child, includes sexual abuse and forms of ill-treatment which are not physical").

Page 17, line 25, at end insert— (""the relevant judicial authority", in relation to any order under this Act, means—

  1. (a) where the order was made by the High Court, a judge of that court,
  2. (b) where the order was made by a county court, a judge or district judge of that or any other county court, or
  3. (c) where the order was made by a magistrates' court, any justice of the peace.").

Page 17, line 25, at end insert— ("( ) where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child".).

The noble and learned Lord said: I spoke to Amendment No. 41 with Amendment No. 2. I spoke to Amendments Nos. 42 to 45 inclusive with Amendment No. 6. With your Lordships' leave, I move the amendments en bloc.

On Question, amendments agreed to.

Clause 25, as amended, agreed to.

Clauses 26 and 27 agreed to.

Schedule 1 agreed to.

Schedule 2 agreed to.

Schedule 3 [Amendments of Children Act 1989]:

The Lord Chancellor moved Amendments Nos. 46 to 55:

Page 21, line 44, leave out ("order being made") and insert ("inclusion of the exclusion requirement").

Page 22, line 11, at end insert— ("(5A) Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement. (5B) Any period specified for the purposes of subsection (4) or (5A) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order.").

Page 22, line 16, after ("15(5)") insert ("(9) and (9A)").

Page 22, line 22, leave out from ("authority") to end of line 23 and insert ("exercise their power to remove the child from the dwelling-house from which the relevant person is excluded to other accommodation for a period of more than 24 hours, the interim care").

Page 22, line 25, at end insert—

"Undertakings relating to interim care orders.

38B. —(1) In any case where the court has power to include an exclusion requirement in an interim care order, the court may accept an undertaking from the relevant person.

(2) No power of arrest may be attached to any undertaking given under subsection (1).

(3) An undertaking given to a court under subsection (1)—

  1. (a) shall be enforceable as if it were an order of the court, and
  2. (b) shall cease to have effect if, while it is in force, the local authority exercise their power to remove the child from the dwelling-house from which the relevant person is excluded to other accommodation for a period of more than 24 hours.

(4) This section has effect without prejudice to the powers of the High Court and county court apart from this section.

(5) In this section "exclusion requirement" and "relevant person" have the same meaning as in section 38A."").

Page 22, line 32, at end insert— ("(3B) Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).").

Page 23, line 8, leave out ("order being made") and insert ("inclusion of the exclusion requirement").

Page 23, leave out lines 18 to 24 and insert— ("(4) The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order.

(5) Where the court makes an emergency protection order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement.

(6) Where the court attaches a power of arrest to an exclusion requirement of an emergency protection order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement.

(7) Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order.

(8) Where a power of arrest is attached to an exclusion requirement of an emergency protection order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement.

(9) Sections 15(5), (9) and (9A) and 16 of, and Schedule 2 to, the Family Homes and Domestic Violence Act 1995 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 15(4) of that Act.

(10) If, while an emergency protection order containing an exclusion requirement is in force, the applicant exercises the power given by section 44(4)(b)(i) to remove the child to other accommodation for a period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement." ").

Page 23, line 24 at end insert—

"Undertakings relating to emergency protection orders.

44B. —(1) In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.

(2) No power of arrest may be attached to any undertaking given under subsection (1).

(3) An undertaken given to a court under subsection (1)—

  1. (a) shall be enforceable as if it were an order of the court, and
  2. (b) shall cease to have effect if, while it is in force, the applicant exercises the power given by section 44(4)(b)(i) to remove the child to other accommodation for a period of more than 24 hours.

(4) The section has effect without prejudice to the powers of the High Court and county court apart from this section.

(5) In this section "exclusion requirement" and "relevant person" have the same meaning as in section 44A."").

Page 23, line 31, at end insert— ("(8B) Where a power of arrest has been attached to an exclusion requirement of an emergency protection order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).").

The noble and learned Lord said: I spoke to Amendment No. 46 with Amendment No. 6, to Amendment No. 47 with Amendment No. 18, Amendment No. 48 with Amendment No. 26, Amendment No. 49 with Amendment No. 18, Amendment No. 50 with Amendment No. 26, Amendment No. 51 with Amendment No. 18, Amendment No. 52 with Amendment No. 6, Amendment No. 53 with Amendment No. 18, Amendment No. 54 with Amendment No. 18 and Amendment No. 55 with Amendment No. 18. With your Lordships' leave, I move the amendments to Schedule 3 en bloc.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Transfer of certain tenancies on divorce etc. or on separation of cohabitants]:

The Lord Chancellor moved Amendments Nos. 56 and 57:

Page 26, line 21, at end insert— ("(1A) Without prejudice to the generality of sub-paragraph (1) above, the court may, on making an order by virtue of that sub-paragraph for the payment of a sum—

  1. (a) direct that payment of that sum or any part of it shall be deferred until a specified date or until the occurrence of a specified event, or
  2. (b) direct that that sum or any part of it shall be paid by instalments.
(1B) Where an order has been made by virtue of sub-paragraph (1) above, the court may, on the application of the transferee or the transferor—
  1. (a) exercise its powers under sub-paragraph (1A) above, or
  2. (b) vary any direction previously given under that sub-paragraph,
at any time before the sum whose payment is required by the order is paid in full.").

Page 26, line 29, at end insert— ("(2A) The court shall not give any direction under sub-paragraph (1A) above unless it appears to the court that immediate payment of the sum required by the order would cause the transferee financial hardship which is greater than any financial hardship that would be caused to the transferor if the direction were given.").

The noble and learned Lord said: I spoke to these amendments with Amendment No. 18. With your Lordships' leave, I will move these en bloc.

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Schedules 5, 6 and 7 agreed to.

The Deputy Chairman of Committees

The Question is, That this be the Title of the Bill. As many as are of that opinion will say "Content".

Members of the Committee

Content.

The Deputy Chairman of Committees

To the contrary "Not-Content". The Contents have it.

The Question is. That I report the Bill to the House with amendments. As many as are of that opinion will say "Content".

The Lords following, with the Deputy Chairman of Committees (Lord Murton of Lindisfarne), were present:
L. Archer of Sandwell B. Darcy (de Knayth)
L. Brightman (Chairman) B. David
L. Butterworth L. Kingsland
L. Clark of Kempston L. Mackay of Clashfern (L. Chancellor)
V. Colville of Culross L. Meston
L. Elton
L. Harding of Petherton
Members of the Committee

Content.

The Deputy Chairman of Committees

To the contrary "Not-Content". The Contents have it. That concludes the proceedings.

The Committee adjourned at seventeen minutes past six o'clock.