HL Deb 12 May 1958 vol 209 cc180-91

3.50 p.m.

Order of the Day for the Second Reading read.

LORD OGMORE

My Lords, I rise to move the Second Reading of this Bill, which is one to which I feel sure your Lordships will give the most sympathetic consideration. It has been through another place where it was warmly welcomed on all sides of the House. Quite briefly, the object of the Bill is to give effect, with minor exceptions, to the recommendations in Part V of the Report of the Royal Commission on Marriage and Divorce with reference to the welfare of children in matrimonial proceedings in the High Court in England and Wales and the corresponding courts in Scotland. The Bill will extend the jurisdiction of the court to further classes of children. It will require the court to be satisfied as to the arrangements proposed for the care and upbringing of children under sixteen before making absolute a decree nisi of divorce or nullity or pronouncing a decree of judicial separation. It will enable the court to require a local authority to receive a child into its care. It will enable the court to place a child under the supervision of a court welfare officer or officer of a local authority. And lastly it gives the court power to make an order for custody of children where it refuses a decree of divorce, nullity or judicial separation or makes an order for maintenance under proceedings brought for that purpose under Section 23 of the Matrimonial Causes Act, 1950.

As your Lordships will remember, the Royal Commission on Marriage and Divorce was appointed in 1951 under the chairmanship of the noble and learned Lord, Lord Morton of Henryton. Its Report, published in 1956, contained 149 recommendations relating to England and Wales and 81 recommendations relating to Scotland. Many of those recommendations have already been put into operation by Rules of Court or by administrative action, but among those requiring legislation are the recommendations relating to children which the present Bill is designed to implement. The Royal Commission said, in paragraphs 360 and 362 of their Report: Of the problems resulting from the dissolution of marriage none is more serious than that of trying to ensure the future welfare of the children … where divorce takes place it is therefore essential that everything which is possible in the circumstances should be done to mitigate the effects upon the child of the disruption of family life. The Royal Commission's recommendations were made with this object in view, and in the debate on the Commission's Report which took place in your Lordships' House on October 24, 1956, the then Archbishop of York said (col. 1001) that if paragraph 373 of the Report (which deals with the postponement of the decree absolute until the court is satisfied with the arrangements proposed for the children) were translated into legislation it would "be held to be a children's charter". The noble Lord, Lord Merthyr, who is now sitting on the Woolsack, said in the course of the debate that he and those who felt like him would harry the noble Lord, Lord Mancroft, until something was done about it. Well, my Lords, here it is: something is being done about it.

Whatever may be the effect of divorce on the parties, the impact on the children affected by the divorce must be extremely serious. The family group of a child, consisting as it does of father, mother and the other children, must be the bedrock of existence; and divorce which shatters this bedrock must destroy to some extent their foundations of security and confidence. Nothing, of course, can restore those foundations, but the provisions of this Bill go some way to avert some of the worst consequences.

Clauses 1 and 2 are the most important clauses of the Bill. The object of Clause 1 is to extend the classes of children for whom the High Court may make provision in proceedings for divorce, nullity or judicial separation. The court's jurisdiction in such cases is confined by Section 26, subsection (1) of the Matrimonial Causes Act, 1950 to children the marriage of whose parents is the subject of the proceedings. The Royal Commission recommended, in paragraph 393 of their Report, that the following additional classes of children should also be included: first, illegitimate children of the two spouses; secondly, children of either spouse (including a child adopted by either spouse), if living in family at the time when the home broke up; thirdly, illegitimate children of either spouse, if living in family at the time when the home broke up; and fourthly, other children—excluding, of course, boarded out children—who were living in family with the spouses and maintained by one or both of them at the time when the home broke up. The present clause brings children in categories two and three within the jurisdiction. It does not touch the children in category four; and children in category one were already held, by the decision in Galloway v. Galloway, to come within the jurisdiction of the Matrimonial Causes Act. So we can now say that, of the four classes of children who the Royal Commission recommended should be included, one is already included, two are included in this particular Bill, and there is still a fourth which, for various reasons, it is not proposed to include.

Subsection (1) of Clause 1 extends Section 26 of the Matrimonial Causes Act to any child (including an illegitimate or adopted child) of one party to the marriage who has been accepted as one of the family by the other party. The effect of this is that the children concerned will be brought within the ambit of Clause 2 of the Bill, so that the court will be required to satisfy itself about the arrangements for their care and upbringing before making a decree absolute or pronouncing a decree of judicial separation. The court will be able to make such provision as it thinks just with respect to the custody, maintenance and education of any such child, and will be able to make an order committing the child to the care of a local authority, under Clause 5 of the Bill, or to make a supervision order, under Clause 6. The test of jurisdiction under subsection (1) is whether the child has been accepted as one of the family, irrespective of whether the party who is not its parent has contributed to its maintenance. That is the first important provision. They are all important, but the first two clauses are the most important.

The object of Clause 2 is to give effect to Recommendation 32, in the Summary of Recommendations, on page 314 of the Commission's Report, by requiring the High Court to satisfy itself as to the arrangements proposed for the children before making a final decree in matrimonial proceedings. The Commission thought that this requirement was necessary in order to ensure, first, that the parents themselves gave full consideration to the question of their children's welfare, and, secondly, to enable the court's control over the welfare of the children to be made more effective than it is under the existing procedure. Subsection (1) accordingly provides that the High Court shall not make absolute any decree for divorce or nullity of marriage, nor pronounce a decree of judicial separation, until the court is satisfied that arrangements have been made for the care and upbringing of every child under sixteen in respect of whom the court has jurisdiction and that those arrangements are satisfactory or the best that can be devised in the circumstances. Under Section 26(1) of the Matrimonial Causes Act the court has, in such proceedings, jurisdiction in respect of any child "the marriage of whose parents is the subject of proceedings." As I have said, Clause 1 of the Bill extends the jurisdiction to the legitimate or illegitimate children of one of the spouses.

My Lords, Clause 3 gives effect to the first part of Recommendation 39 of the Royal Commission by enabling the Divorce Court to make orders for the custody, maintenance and education of the children where a matrimonial petition is dismissed. Subsection (1) of this clause accordingly provides that where proceedings for divorce, nullity of marriage or judicial separation are dismissed, the court shall have the same power to make provision for the custody, maintenance and education of the children as it would have had if the proceedings were still before the court. Clause 4 carries out the second part of Recommendation 39 by enabling the Divorce Court to make provision for the custody of the children where it has made an order for maintenance under Section 23 of the Matrimonial Causes Act, 1950. An order for maintenance may be made under Section 23 where a husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or the infant children of the marriage.

Clause 5 implements Recommendation 37 of the Commission's Report by enabling the Divorce Court to require a local authority to receive a child into its care. In the framing of this clause the precedent of the Children Act, 1948, has been followed as closely as possible. Clause 6 gives effect to Recommendation 38 by enabling the Divorce Court, after making an order for the custody of a child, to place it under the supervision of a welfare officer or an officer of a local authority's children service.

Then, my Lords, we come to the case of Scotland. Part II of the Bill deals with the Scottish law and the amendment of it in order to carry out the purposes of the Bill. Part II deals with the jurisdiction of the Scottish courts in the matters to which I have been referring and is intended to achieve broadly the same position as will be reached in England and Wales under Part 1. In this respect it follows the Morton Commission's recommendations for Scotland which, with a few exceptions and differences of detail, paralleled the English recommendations. With these reservations, and bearing in mind the drafting differences that are necessary because of the differing powers, practice and language of the Scottish courts, it can be said that Clauses 7, 8, 9, 10 and 12 correspond in their intention to the English clauses in Part 1. Clauses 10 and 12, which among other things enable the court, in actions for divorce, nullity of marriage or separation, to place a child in the care or under the supervision of a local authority's children's committee, have been drafted after consultation with the associations of Scottish local authorities, and with due regard to their interests.

Clause 11 has no counterpart among the English clauses. It provides for a system of reporting officer on whom the courts can call—though they are not obliged to—for a report on the circumstances of a child in an action of this kind and on the arrangements proposed for its future. In England, of course, the courts already have a court welfare officer on whom they can call for this purpose. This clause, too, has been drafted in the light of consultations with the associations of Scottish local authorities and also, in this case, after consultation with the representatives of the legal profession in Scotland. Clause 13 also has no counterpart among the English clauses. This clause gives the court power, on the application of either party, to grant an interim interdict prohibiting the removal of a child outside Scotland or out of the control of the person in whose custody the child is. This provision implements one of the recommendations of the Morton Commission. At present it is possible for one of the spouses—or indeed a third party—in an action for divorce, nullity of marriage or separation to remove the children concerned out of the jurisdiction of the court or the control of the person in whose charge they are so long as the court has not made an order for their custody; and the Morton Commission recommended that this should be remedied. The corresponding English recommendation has already been implemented by Rules of Court.

Clause 14, which also has no English counterpart, contains general provisions which ensure that the Court of Session has a number of general powers as to the making, revoking and varying of orders for the custody, maintenance and education of children which are neces- sary to implement the various recommendations of the Morton Commission. Clause 15 deals with the interpretation of the Scottish clauses; Clause 16 deals with the expenses of local authorities, and Clause 17 with the Short Title, extent and commencement of the Act. My Lords, I have every confidence that your Lordships will give this Bill a warm welcome, and I beg to move the Second Reading.

Moved, That the Bill be now read 2a. (Lord Ogmore.)

House adjourned during pleasure and resumed by the Lord Chancellor.

4.6 p.m.

LORD GLYN

My Lords, this is a most important Bill, and I think Parliament owes a debt to Mr. Arthur Moyle for having introduced this Bill under a Private Member's Motion. Not for the first time was he successful, and the Bill now comes to your Lordships' House. The noble Lord who has moved it has gone through the clauses, and it is not necessary for me to do more than try and fill in the background. For some time I had to do with Borstal institutions, and I believe that this Bill is going to do more than almost any other measure to help overcome the difficulties which the Borstal institutions have tried to meet.

This sounds a dull Bill, when one goes through it clause by clause, but in fact it is a very human attempt to try to provide some alternative to the broken homes that result from this increase in divorce. Noble Lords probably know that there are 20,000 children a year who, as a result of divorce proceedings, find themselves without a home or without care. Surely it is obvious that child delinquency, the juvenile crimes with which we are confronted and which the reports of the chief constables indicate are on the increase, mean that we must tackle this problem at its source—that is, a broken home. If you have too many broken homes there is bound to be a great increase in juvenile crime.

I believe that this Bill is unique in one way. Ever since the Act of Union there has always been a feeling that no legislation should be passed unless the intricacies of Scottish law were recognised. I speak as one who was once a Scottish Member. The sponsors of this Bill have taken infinite trouble to go into that aspect and, as the noble Lord has explained, the Solicitor General for Scotland stated publicly, as did the Attorney General, that this Bill has Government support. Therefore, I believe it to be a measure of tremendous importance at this time, and I hope that your Lordships will not only give it a Second Reading but, if possible, will expedite its progress through the House. It has been delayed far too long. If you talk to the welfare officers appointed to the courts they will all tell you of the enormous scope that exists—and they are the people who come most in touch with the individuals concerned.

I am sure that the system set up under the Act which the noble and learned Earl, Lord Jowitt, when he was Lord Chancellor (I think I am correct in saying that it was due to him that court welfare officers were appointed) did more than almost anybody else to press forward the work they have done. It has been of outstanding merit, and I believe that if this Bill goes through all its stages quickly it will encourage all those who work in the courts, or as probation officers, or in any other capacity to try to deal with the human problem which at the present moment is baffling; and which I believe is the disastrous inhuman consequence of divorce, whereby boys and girls are thrown on their own resources without sufficient help to guide and correct them. I believe judges in the courts feel that this Bill has been long required, and I hope that those who are interested in the welfare of youth, youth clubs and all the rest of it, will realise that although those things are of importance the most important thing is to get some control at the time when parents are divorcing, at a moment when a gap is left which nothing can fill. I hope, therefore, that this Bill may pass rapidly through this House and become the law of the land in order that we can deal effectively with this problem.

4.11 p.m.

LORD CHESHAM

My Lords, in welcoming this Bill on behalf of Her Majesty's Government I have little to do but to endorse what has already been said by noble Lords on both sides of the House. It is a most desirable measure which will ensure that in matrimonial proceedings in the High Court the future welfare of the children of the parties is given the careful consideration that it deserves. I would go all the way with the noble Lord, Lord Ogmore, in his remarks on this aspect and I know that the achievement of this particular object—looking after the children—will be a great relief to many noble Lords on all sides.

The noble Lord, Lord Ogmore, drew our attention to the fact that many of the recommendations which resulted from the valuable work of the Morton Commission have already been carried out by administrative action. In this connection I would stress particularly that the arrangements whereby judges in London are enabled to call for a report from a court welfare officer before deciding questions of custody have now been extended to the whole country. If the additional powers proposed by this Bill are conferred upon the judges it will enable them to secure that, so far as is humanly possible, proper arrangements are made for the care and upbringing of the children before the marriage of their parents is ended.

The noble Lord explained how, again consistently with the recommendations, in addition to making orders in respect of the custody and maintenance of the children judges will be able, in appropriate cases, to place them under the supervision of a court welfare officer or commit them to the care of a local authority. Though it would seem that these powers would be used only in exceptional cases, they will undoubtedly form a valuable addition to the existing jurisdiction of the court and I believe will be welcomed by Her Majesty's judges.

It is quite unnecessary for me to say anything more about the Bill. The noble Lord who introduced it did so ably, in lucid and detailed terms, and I am sure I am speaking for all of us when I express our appreciation of his having done so. The noble Lord also referred to the debate in which the most reverend Primate the then Archbishop of York referred to the recommendations as a "Children's Charter"; and the most reverend Primate at that time also hoped that Her Majesty's Government would be able to legislate on the recommendations as soon as possible. We have not been able to do so but we have done the next best thing, which was to give full facilities and all the assistance in our power in the preparation and presentation of the Bill. I believe that it will go a long way towards improving the lot of unfortunate children who are so often the innocent victims of many divorce cases, and I too, hope that it will have a speedy passage into law.

4.16 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I rise only for a moment, with the indulgence of the House, to ask the forgiveness of the noble Lord, Lord Ogmore, for my absence when he moved this Bill. As I believe he knows, I was sitting judicially and it was impossible for me to be here. May I say, therefore, that I agree with everything that has been said by my noble friend Lord Chesham, and I should like to underwrite the gratitude which he has expressed towards the noble Lord, Lord Ogmore, for taking charge of and introducing the Bill, and to wish it well.

4.17 p.m.

LORD MERRIMAN

My Lords, the noble Lords, Lord Glyn and Lord Chesham, have both said they believed that this Bill would be welcomed by Her Majesty's Judges. On their behalf I rise quite shortly to say that such is the case. We believe that this is a most admirable Bill and are very glad that it has succeeded in getting through another place and has been introduced in this House. I am not going to speak in detail about it, for the noble Lord, Lord Ogmore, has already explained its details fully and clearly.

The real and essential point of the Bill is this. As your Lordships know, Her Majesty's Judges at present have jurisdiction to deal with custody and maintenance of children, but can do so, of course, only after those matters are introduced before us by the parties themselves. We Judges have no power to initiate proceedings either for custody or for the maintenance of children, and, in my opinion, it is a wholly good thing that, by being obliged to withhold the final decree in a suit, we should be given power of ensuring that proper arrangements are made for the custody, upbringing and maintenance of children.

I should like to say a word on one other aspect on which the noble Lord, Lord Ogmore, did not enlarge although he mentioned it—the power given to Her Majesty's Judges under Clause 3 of the Bill. At present if a petition is dismissed there is an end of our power to deal with the children; so as things stand at present we can make interim orders while a suit is in progress but if the suit is dismissed there is an end of the matter. Now, in the nature of things, if a suit is dismissed it is more than likely to have been dismissed after a fierce contest with both parties represented before the court; and it is just in those cases where the court has heard the whole story that it is so valuable for the court to be able to deal with the children.

I know perfectly well that magistrates are in the same difficulty in this sense; and that it is only if the wife proves her complaint of the particular offence (whatever the offence may be) that they have power to make a custody order, and that, therefore, if the charge is not proved, their powers under the Married Women Act go. What actually happens in practice before the magistrates is that if the complaint fails a summons under the Guardianship of Infants Act is taken out then and there before the same court who have heard the whole story, and an order is made for one or other of the spouses, who is able, to look after the children, with arrangements for access and all the rest. Theoretically, of course, that is true of the High Court; but it is only theoretically, because when we have finished with a case in the Divorce Division we cannot take out a guardianship summons before us. The matter would have to go to the Chancellery Judge and begin all over again before a different judge who knows nothing about the circumstances. That, I think, in itself is a most valuable power. I only wish to add that we will do our best to ensure that the useful provisions of this Bill are fully implemented.

4.21 p.m.

LORD HAWKE

My Lords, divorce is always a tragedy. My noble friend Lord Glyn has stressed this aspect in regard to juvenile delinquency, but one meets instability in every walk of society. I meet it through being chairman of a child emigration society. But it is not only there; one meets it in the children who ought to be in the best homes in the country. One meets it in one's own home, from children in boarding school who speak of little children crying themselves to sleep because they have heard that their father or mother is contemplating divorce. Once the parents are set on divorce the damage is done. The court can make arrangements, but they can never be the same as a home. A child wants a father and a mother, and I hope that by stressing the importance of the future of the children it may deter some of the parents from pushing their divorce suit through to the bitter end, because, after all, in more cases than not it is selfishness by one or both parties that creates divorce.

4.23 p.m.

LORD OGMORE

My Lords, with the leave of the House, I should like to say that I am grateful to all the noble Lords who have supported me in my recommendation that your Lordships should pass the Second Reading. I am particularly grateful to the Lord Chancellor and his Department for the assistance they have given me in preparing my speech for to-day. I join with the noble Lord, Lord Glyn, in congratulating Mr. Arthur Moyle, who has worked so hard to bring this Bill to the Statute Book. He has given of his time and of his trouble for years past over this matter, and it must be a great day for him that this Bill has completed yet another stage on its way to the Statute Book. I can assure noble Lords who asked the question that, so far as I am concerned, there will be no undue delay. I am sure we have all been very much impressed by the speech of the noble Lord, Lord Merriman, who was able to give us the views of the High Court Judges on this subject.

On Question, Bill read 2a, and committed to a Committee of the Whole House.