MAINTENANCE ORDERS BILL [H.L.] (Hansard, 4 April 1950)

§ THE LORD CHANCELLOR (VISCOUNT JOWITT)

My Lords, I rise to move that this Bill be read a second time. I am afraid your Lordships will find that the Bill is a complicated one—I, at any rate, have found it by no means easy to understand. The purpose is simple and, as stated in the long Title, it is to enable certain maintenance orders to be made and enforced throughout the United Kingdom. 728 What makes the Bill complicated is that there are three kinds of orders to be dealt with—namely, wife maintenance orders, affiliation orders and orders for the maintenance of infants under the Guardianship of Infants Act. The Bill concerns England, Scotland and Northern Ireland, and the existing law is different in each of those three countries.

In Scotland, may I concede at once that, as your Lordships would expect, the law is simple and straightforward. In every kind of case the court which has jurisdiction is the court where the defender resides; and no other court. In England, in wife maintenance cases, the court which has jurisdiction is the court where the marital offence was committed or, by a recent enactment, the court where either the husband or the wife resides. In affiliation cases it is the court where the mother resides, and in guardianship of infants cases the Acts are silent on the question of jurisdiction. In all classes of case the English court has no jurisdiction at all if the husband or father is out of the country—in Scotland, say. In Northern Ireland the position is much the same as it is in England, except that they have nothing similar to the jurisdiction in England and Scotland with respect to maintenance of infants under the Guardianship of Infants Acts.

So far as the enforcement of an order once made is concerned, the position in all three countries is that where the man has moved out of the country where the order was made, there is no practical method of enforcing it against him. Merely to draw attention to this state of affairs is enough to show that it would be desirable to put an end to it, but formidable difficulties were encountered in devising a scheme for the making and enforcement of orders between the different parts of the United Kingdom, in view of the very different systems of law in force in those various parts. We hope, however, that this rather lengthy Bill does at least provide a working solution. The Bill consists of two main Parts. Part I relates to the jurisdiction of courts of summary jurisdiction in England and Northern Ireland, and of sheriff courts in Scotland, to make and vary orders. Part II relates to the enforcements of orders and applies also to orders of superior courts.

729 May I now refer to Part I in rather greater detail? As I have said, it applies to courts of summary jurisdiction in England and Northern Ireland, and to sheriff courts in Scotland, and deals with wife maintenance orders, guardianship of infants orders, affiliation orders and also certain analogous orders which can be made on the application of the National Assistance Board or a local authority. The nature of the extension of jurisdiction differs in England and Northern Ireland on the one hand, and Scotland on the other. In sheriff courts in Scotland there is, under the present law, generally speaking, jurisdiction only in the court of the defender's residence, The Bill therefore extends the jurisdiction of the Scottish courts by conferring jurisdiction on the court of the woman's residence in these cases against a defender resident in England or Northern Ireland. In England and Northern Ireland, on the other hand, the court having jurisdiction to hear the case is, generally speaking, the court of the complainant's place of residence, and in no case has this court jurisdiction if the defendant is out of England or Northern Ireland, as the case may be. What the Bill does, therefore, in the case of England and Northern Ireland, is to give to whatever court would have had jurisdiction if the defendant had been in the country, jurisdiction to hear the case notwithstanding that he is residing in another part of the United Kingdom. The right to exercise the jurisdiction conferred by the Bill is subject to the general condition that the cause of action—for example, failure to maintain in a husband and wife case or the intercourse resulting in the birth of a child in an affiliation case—must have occurred in that part of the United Kingdom in which the court exercising the jurisdiction is situated. The jurisdiction conferred by the Bill is in addition to, and not in derogation of, any jurisdiction otherwise exercisable by the courts concerned.

I can best explain how the Bill would work by giving one or two examples. Let me take the case of a married couple living in England. Let us assume that the husband deserted his wife and then went to Scotland, leaving her without the means to support herself. Under the existing law the woman cannot go to an English court to get a maintenance order, because the English court has no jurisdiction 730 to make one, the defendant being out of England. The effect of this Bill is that she may apply either to an English court—she and her husband having last resided in England as man and wife—or to the court in Scotland having jurisdiction where her husband resides. We have made Similar provision as regards guardianship of infants orders, but this applies only to orders made by courts of summary jurisdiction in England and by sheriff courts in Scotland, since Northern Irish courts of summary jurisdiction have no power to make these orders. So a wife living in one part of the United Kingdom may apply for an order for custody and maintenance either in the part where she resides—if the infant in question resides there too—or in the part in which her husband resides, save that she cannot apply to a summary court in Northern Ireland.

Clause 3, 8 and 11 deal with affiliation orders. May I illustrate this by taking the case of a woman who has given birth to an illegitimate child in Scotland? The man whom she alleges to be the father of the child is in England. Now, under the existing law, this woman cannot proceed in an English court because the English law requires proceedings to be brought in the court of the place where she resides; nor can she apply to a Scottish court, because the defender is out of Scotland. It has been provided in the Bill that if the intercourse resulting in the birth took place in Scotland she can go to a Scottish court for an order, and that in any case she can go to an English court for her order.

There are, as I mentioned earlier, some orders which may be made under the existing law on the application of the National Assistance Board or a local authority These orders fall into four classes. The first consists of what are really affiliation orders, made on the application not of the mother but of the authority who are spending money on the maintenance of an illegitimate child. The second are orders directing that sums payable under the existing affiliation orders to the mother be diverted to a local authority. The third are orders. obtainable at the instance of the local authority against persons who under the Children and Young Persons Act are liable to contribute to the maintenance of a child or young person who is being 731 looked after by a local authority. Lastly, there are orders which can be made for the benefit of the National Assistance Board or a local authority when they are maintaining a person other than an illegitimate child—for example, a separated wife—for whose support the defendant is legally responsible. In all these cases the Bill puts the Board or the local authority in a position to obtain and enforce orders when the defendant is in another part of the United Kingdom. To this end certain consequential Amendments have had to be made in the enactments concerned which bring them into the general scheme of Part I. These Amendments are to be found in.the First Schedule and they concern merely what authority can apply for orders and in what court.

There is a special provision about the service of summonses. When the defendant is not resident in the country in which the proceedings have been brought the procedure will be that a summons issued in that country may be endorsed and served in the country of the defendant's residence. The service must be personal service. If he does not appear, an order may be made against him in his absence, provided that service of the summons is properly proved. This is no departure from the normal practice, and the provision is contained in Clause 15 of this Bill. So far as England and Northern Ireland are concerned, provision is made for the transfer of proceedings in wife maintenance cases, on the defendant's request, from one court to another court in the same country if the last matrimonial home of the parties was within the jurisdiction of the latter court. In Scotland no alteration of the existing law is necessary to enable such cases to be transferred from one sheriff court to another. The object of this provision is to secure that in a proper case the defendant who is summoned to appear in proceedings in a country in which he is not residing shall not be put to defending the case in the place where the wife happens to be residing when all the evidence is in the place where they last resided together as man and wife.

That brings me to Part II, which deals with the enforcement of orders. This Part covers the same general types of orders as are dealt with in Part I, but 732 applies to superior as well as to inferior courts. The types of order covered are set out in full in Clause 16. This Part of the Bill provides for an order made in one part of the United Kingdom being registered and enforced in the part in which the defendant is residing, as if it had been made in that part. Let me take, for example, a decree for the payment of aliment made in the Court of Session in Edinburgh. The woman in whose favour the decree is made resides in Scotland, but the man who is liable to make payments resides in England. Now, under the enforcement provisions of this Bill the woman may move the Court of Session to have a copy of the decree registered in the Probate, Divorce and Admiralty Division of the High Court in London. That court will then enforce the decree against the man as if it had made the order.

Part II contains many detailed provisions, with which I need not trouble your Lordships now, beyond drawing attention to the fact that we have taken advantage of the existence of collecting officers in summary courts in England and Northern Ireland for the collecting of money due under orders, and for assisting women in the registration and enforcement of orders registered in a court other than that which made them. I should like to draw your Lordships' special attention to the provisions which have been made for the variation and revocation of orders. In the superior courts we have adhered to the principle that an order may be varied only by the court which made it. In order to save expense and inconvenience to the parties we have, however, facilitated the procedure by enabling a court in another country to take the evidence of the person liable to make payments under an order and to send the transcript of the evidence to the court by which the order was made. It is difficult to foresee how much value this provision will have in practice, but it will certainly help in the simple case where, for example, a man in London who seeks variation of an order made against him by the Court of Session in Scotland may adduce before the High Court in London evidence from his employer on the amount of his wages. In courts of summary jurisdiction and sheriff courts, the strict principle has been relaxed, but only as regards variation of the amount payable. The amount payable is so closely connected with enforcement that 733 it is clearly convenient in this class of case that the court in which the order was registered, and which is responsible for its enforcement, shall have power to make a variation in amount.

I have attempted only a brief outline of the difficulties under the existing law and the manner in which the Bill sets out to meet them. The Bill contains many intricacies, and it will have to he carefully examined in Committee, where we shall have the advantage of the learning and experience of your Lordships' House. I think I can assure your Lordships that the Bill is entirely uncontroversial, and indeed I hope that its underlying principles will be acceptable to all Parties. I think your Lordships will agree that it remedies a real hardship and that it will bring long-needed relief to many unfortunate women. I beg to move.

§ VISCOUNT SIMON

My Lords, I am sure we shall all agree with the concluding observations of the Lord Chancellor. This Bill satisfies a useful convention: that in the present Parliament we should, so far as possible, avoid legislation which will raise acute Party controversy. This affords a very useful opportunity, which has been taken by the Lord Chancellor, to introduce and explain to us what is, indeed, a most complicated measure. I should be the last to claim to be able to expound it in the detail in which he has laid it before the House. Perhaps I may just be allowed to say that this difficulty was brought to my attention shortly before I ceased to be Lord Chancellor, and now, of course, my noble friend has inherited it and is dealing with it.

It is not without interest to observe how this situation comes about. Notwithstanding the union between England and Scotland, which was achieved in the time of Queen Anne, a union which some of us may remember was warmly praised by so stout a Scot as Baillie Nicol Jarvie in Sir Walter Scott's Rob Roy; the courts of England and Scotland have remained quite distinct in their jurisdictions and for most purposes they do not overlap; and there are quite separate powers to enforce orders which the courts make. That is the result, maintaining, as we should all 734 be most willing to maintain, the essential independence of the Scot—and, I hope, of the Englishman. For most purposes, however, we long ago adopted a machinery in this country which gets over that difficulty in ordinary litigation. We recover damages in litigation. In Scotland, there is a machinery by which, under proper safeguards, payment can be enforced where the man is caught in England, and vice versa. But, as the Lord Chancellor has explained, that does not apply to these very troublesome cases, often cases involving quite poor people and cases of greet hardship, where the claim is made by a woman in one country against a man—it may be her husband in a matrimonial case or it may be the father of her child in a bastardy case—who is not to be caught in the same part of the Island as the woman finds herself.

I do not think it is always appreciated that there are two difficulties, not one, in every case of this sort. The first difficulty is that it would not be right for a court dealing with lose matters, or, indeed, any matters where relief is being claimed from a defendant, to proceed at the invitation of the claimant and decide the whole thing, until the defendant has been actually served and given notice that the claim is being made against him in such a court and told, "If you want to defend yourself, take your proper steps to do so." Otherwise, there would be people obtaining relief without the other person ever being properly notified that the claim was made against him. That would never do. That is the difficulty which lawyers call the difficulty of "service," the difficulty of giving notice to the person if he is in another part of this Island, that these proceedings are being taken. I think that is all dealt with in Clause 15 of this Bill, to which the Lord Chancellor referred.

The second difficulty is this. You may have given all the proper notice which is required and the proceedings may have been taken, whether to make the father of an illegitimate child contribute to its upkeep or to make some husband who has misbehaved himself provide in some degree for the maintenance of his wife. You may do all that with perfect notice to the other party and yet, when the time comes, the success of the claimant is of 735 no practical use because, when the order comes to be enforced, the person who ought to pay is not in the part of the Kingdom in which payment can be enforced. If I understand it rightly—I am not, of course, explaining it with the precision which the Lord Chancellor has employed—the object of this Bill, which seems to me a very good one, is to provide machinery by which, in cases where a person (after proper notice to him) is found to be the person who ought to pay whatever is the proper amount—whatever the court orders, in bastardy proceedings, in matrimonial proceedings and, in some cases, in connection with the guardianship of infants—he shall not be able to avoid the consequences by saying: "You have got your order in England but I am in Scotland," or the other way about.

A person may move from one part of the Island to another for various reasons, but, even in these days, it is not too difficult to escape deliberately from the jurisdiction. There are endless cases where people, either for business reasons or because of a change of choice, move from one area to another. Of all cases, the ones which I think most deserve consideration are those where a person who ought to pay is able to snap his fingers at the order merely because he is living in another part of the Island. I understand those are the reasons for which the Bill is proposed. I do not pretend to be fully acquainted with this very complicated provision. No doubt, it is the result of a great deal of skill and labour on the part of the gentlemen who, with skill and impartiality, advise every Government in turn. I shall be greatly surprised if we find anything very wrong with the Bill hereafter. The principle is plainly right that, while respecting the claims which every Scotsman will make against the Southern part of the Kingdom and which every Englishman will make against Scotsmen, and while preserving our respective identities, we should, by this Bill, make the United Kingdom more united.