§ 3.47 p.m.
§ Amendments reported (according to Order).
§ Clause 4 [Power of Divorce Court to provide for custody of children in proceedings for maintenance]:
§ LORD OGMORE had given Notice of two Amendments, the first being to substitute "subsection" for "section", where 806 that word appears a third time, and the second to add a new subsection to the clause. The noble Lord said: My Lords, the first Amendment is a paving "Amendment for the second, and with your Lordships' permission I ask that they be taken together. The object of the second Amendment is to enable the Divorce: Court, on an application under Section 23 of the Matrimonial Causes Act, 1950, to order maintenance to be paid direct to a child or to a third party for the child's benefit.
§ Your Lordships may remember that during the Committee stage my noble friend Lord Latham pointed out that where, on an application under Section 23, a child is committed to the care of a local authority under the powers conferred by Clause 5 of the Bill, the Court would have no power to order payments to be made to the local authority for the child's maintenance. This is because Section 23 provides that, where a husband has wilfully neglected to provide reasonable maintenance for his wife or children, the Divorce Court may, on the application of the wife, order the husband to make to her such periodical payments as may be just, and the Court has no such power as it has under Section 26 of the Act of 1950 (which enables the Court to make provision for a child in proceedings for divorce, nullity of marriage or judicial separation) to order payments direct to the children or to a third party, even at the wife's request.
§ The occasions on which the Court will decide, on an application made under Section 23, to commit a child to the care of a local authority will no doubt be comparatively rare. Nevertheless, it is desirable in such a case that the Count should be able to order the husband to make contributions direct to the local authority instead of through the wife. Moreover, even where a local authority is not concerned it is often convenient that the Court should be able to order payments under Section 23 to be made direct to the child or to a third party for the child's benefit, instead of to the wife, a power which the case of Logan v. Logan showed that the Court does not at present possess. This is achieved in the present Bill by the new subsection (2), which I am now moving and which will enable payments like those made to the wife herself under the existing Section 23 to be secured in proper cases.807
§ May I say that I am most grateful to my noble friend Lord Latham, who has done considerable service in bringing this matter before your Lordships' notice on Committee stage, so that we could deal with it here. I understand that the noble and learned Lord, Lord Merriman. President of the Probate, Divorce and Admiralty Division, proposes to say a word on another aspect of this Amendment, and, as always, we shall hear him with great interest and profit. I beg to move.
Page 3, line 32 leave out ("section") and insert ("subsection").—(Lord Ogmore.)
§ LORD LATHAM
My Lords, I should like to express my appreciation of the way in which my noble friend Lord Ogmore and the Government have met the defect in the Bill as originally drafted with regard to payment to a local authority in respect of the maintenance of a child committed to their care. I think that the Amendment cures the manifest defect in the Bill and I am much obliged to all concerned. I am sure that local authorities will be equally obliged.
§ LORD MERRIMAN
My Lords, I want to add to what the noble Lord, Lord Ogmore, has said already only that I welcome this Amendment from a point of view entirely unconnected with the London County Council or other local authority. In the Division over which I preside it is a common thing in ordinary divorce suits for orders to be made payable to the child. The point is that that avoids the artificial addition of that income, for example, to that of the mother in whose custody a child has been placed. It is not a case of tax evasion; it is an ordinary tax proposition which is perfectly well recognised by the Inland Revenue authorities. The case falls under Section 26, where the wording is thatthe court may make such provision as appears justand there is no limitation on the person to whom the payment should be made. The trouble is that in Section 23, with which we are dealing, the Court is empowered on the application of the wife only to order the husband to make to her such periodic payment; and it was recently decided—and inevitably decided—that there was no power under that 808 section to order the payment to be made to the child. This Amendment gets rid of that difficulty, among others, and I am grateful for it.
§ THE LORD CHANCELLOR
My Lords, I want only to say in a sentence that I also welcome the Amendment on behalf of Her Majesty's Government. I think that this gap ought to be filled and that the Court ought to have this power. I am sure that your Lordships are grateful not only to the noble Lord, Lord Latham, for drawing our attention to this matter but also to the noble Lord, Lord Ogmore, for dealing with it so promptly.
§ LORD OGMORE
My Lords, I am grateful to the noble and learned Viscount on the Woolsack, to the noble and learned Lord, Lord Merriman, and to my noble friend Lord Latham for the handsome way in which they have received this Amendment.
§ On Question, Amendment agreed to.
Page 3, line 35, at end insert—
(2) In any case where the court would have power, on an application made under subsection (1) of the said section twenty-three, to order the husband to make to the wife periodical payments for the maintenance of any such child as is referred to in that subsection, the court may, if it thinks fit, order those payments to be made to the child, or to any other person for the benefit of the child, instead of to the wife; and the reference to the wife in subsection (2) of that section (which relates to security for maintenance) shall be construed accordingly."—(Lord Ogmore.)
§ On Question, Amendment agreed to.