HL Deb 22 May 1958 vol 209 cc566-80

3.33 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Ogmore.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

Clause 1 agreed to.

Clause 2 [Duty of Divorce Court to consider arrangements for children's welfare before final decree]:

LORD OGMORE moved, after subsection (2), to insert: (3) In subsection (2) of section two. of the said Act (which requires the judge in determining an application for leave to present a petition for divorce before the expiration of three years from the date of the marriage to have regard to the interests of any children of the marriage) the reference to any children of the marriage shall be construed as including a reference to any other child in relation to whom the court would have jurisdiction by virtue of subsection (1) of the said section twenty-six in proceedings instituted by the petition.

The noble Lord said: The first Amendment standing in my name is consequential on the expansion by Clause 1 of the Bill of the classes of children in respect of which the Divorce Court will in future be able to make custody orders. Section 2 of the Matrimonial Causes Act, 1950, requires the leave of the court to be obtained before a divorce petition can be presented within three years of the marriage, and under subsection (2) of that section the judge is required, in considering the application for leave, to have regard to the interest of any children of the marriage. The effect of the Amendment is that the judge must have regard to the interests not only of the legitimate children of the marriage, but also of any illegitimate child of both parties to the marriage as well as of any legitimate or illegitimate or adopted child of either party which has been accepted as one of the family by the other party. I beg to move.

Amendment moved— Page 2, line 39, at end insert the new subsection.—(Lord Ogmore.)


The noble Lord, Lord Ogmore, has introduced this Amendment very clearly. I rise only to say that it is quite acceptable to Her Majesty's Government and, I hope, to your Lordships.

On Question, Amendment agreed to.


The second Amendment is consequential on the first. As the new subsection (3) applies only to applications for leave to present a petition, it clearly cannot affect proceedings instituted before the commencement of Part I of the Bill. I beg to move.

Amendment moved— Page 2, line 40, at beginning insert ("Subsection (1) of").—(Lord Ogmore.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Extension of jurisdiction of Divorce Court where husband neglects to maintain his wife or children]:

On Question, Whether Clause 4 shall stand part of the Bill?


In regard to Clause 4, I should like to raise a point for clarification. May I first, however, say, in parenthesis, that I congratulate my honourable friend in the other House on the success that he is having with this wholly admirable and beneficent Bill. I will not refer to him as the promoter of it, having regard to the conception of promoters which emerged in the discussion in this House yesterday. The point of inquiry which I hope my noble friend Lord Ogmore or the noble Lord having supervision of the measure for the Government can satisfactorily answer is this. It does not appear that there is in the Bill as drafted any power of the court to order maintenance to be paid to a local authority in cases where an infant child has been committed to the care of the local authority under Clause 4 of the Bill. Cases may occur where a child is so committed by a court having jurisdiction to make provision as to the custody of the child under Clause 4 of the Bill—namely, in cases of proceedings under Section 23 of the Matrimonial Causes Act, 1950, for an order for maintenance, brought by a wife in respect of wilful neglect to provide reasonable maintenance for the infant child of the marriage.

The power of the court under Section 23 of the Matrimonial Causes Act, 1950, is to order the husband to make to the wife such periodical payments as may be just. I am sure the Committee will agree that if the local authority has to incur expenses in respect of the maintenance of children committed to their care under the Bill, it is not unreasonable that there should be power in cases of custody for the court to make an order that that payment should be made to the local authority. I should be glad if some clarification of that point can be given to the Committee.


My noble friend gave me notice that he was going to raise a point dealing with the ability of a local authority to obtain money for custody of the children, but I rather thought he was raising it under Clause 5 of the Bill. Under Clause 5 there is full power, should a court commit a child to the care of a local authority, for that local authority to obtain the maintenance which the court has ordered. But under Clause 4 I am rather afraid that the noble Lord is right. At the moment, as the Bill stands, there is not the power to which the noble Lord is referring, and in this case we can only ask him to be good enough to let us have a look at it before the Report stage; and in conjunction with our friends in another place and advisers we will see whether we can do something to put this right.


My Lords, I am much obliged to the noble Lord.

Clause 4 agreed to.

Clause 5:

Committal of child by court to care of local authority

5.—(1) Where the court has jurisdiction to make provision as to the custody of a child, either by virtue of section twenty-six of the Matrimonial Causes Act, 1950, or of this Part of this Act and it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the child to be entrusted to either of the parties to the marriage or to any other individual, the court may if it thinks fit make an order committing the care of the child to the council of a county or county borough (hereinafter referred to as the local authority) and thereupon Part II of the Children Act, 1948 (which relates to the treatment of children in the care of a local authority), shall, subject to the provisions of this section, apply as if the child had been received by the local authority into their care under section one of that Act.

(5) In the application of the said Part II of the Children Act, 1948, under this section—

  1. (a) the exercise by the local authority of their powers under sections twelve to sixteen of that Act shall be subject to any directions giver by the court, and
  2. (b) section seventeen of that Act (which relates to arrangements for the emigration of a child under the care of a local authority) shall not apply.

3.41 p.m.

THE EARL OF IDDESLEIGH moved, in subsection (1), to leave out "received by the local authority into their care under section one of that Act," and insert: committed to the care of the local authority as a fit person under section sixty-two of the Children and Young Persons Act, 1933.

The noble Earl said: For the benefit of those of your Lordships who may not be familiar with the law relating to children, I should explain that the local authority may have in their care two separate categories of children. The first category, sometimes referred to as "subsection (1) children" are children of parents who are temporarily incapacitated from caring for them. When illness or some other misfortune strikes the head of a household and the children cannot be properly looked after, they are brought to the local authority, and until the home can be reconstituted and the children resume their normal home life the local authority has them in their care. In such cases the parental rights remain undisturbed. The parent has to be consulted on all major decisions connected with the child; and the parent has the right to withdraw the children from the care of the local authority when the parent chooses.

The second category of children may be described as being permanently in care and are sometimes called "subsection (2) children", because in their regard the local authority passes a resolution assuming parental rights. In the case of children for whom, humanly speaking, it is impossible to see any resumption of normal domestic life, parental rights (if the parents are alive) are extinguished and those children belong entirely to the local authority. In contradistinction to the first category, these may be described as permanent cases. They are not completely permanent, since it is always possible for the local authority to rescind its resolution regarding parental rights. Nevertheless that is a procedure which, unfortunately, can seldom be adopted, and normally parental rights remain with the local authority until the child attains the age of eighteen years.

The children dealt with under this Bill are those for whom permanent arrangements are being made by the court. There is no need for the court to make temporary arrangements and no need to legislate for that; the court would only have to call the attention of the local authority to some temporary need to look after the children who come before it. This measure deals with permanent provision by a court for the welfare of certain categories of children. The Bill appears, however, to create a hybrid category of children in the care of local authorities —that is to say, children permanently in care but for whom the local authority cannot assume parental rights.

I am going to point out to your Lordships that this position entails some very serious disadvantages. There are a number of decisions which have to be made concerning children which cannot be made except by a person or authority possessing parental rights. There are some fairly normal incidents in the life of a child in which the parent has to signify consent if action is to be taken. Parental consent is required for vaccinations, immunisations, any serious dental treatment, surgical operations and the administration of anæsthetics. A case occurred within the last few years of a child in the care of the local authority under subsection (1) who had to have an operation for appendicitis. The parents had moved to London. This child was brought to the hospital, and the surgeon, before he operated, asked whether parental consent to the operation had been given. No doubt if the danger had been very great and imminent, the surgeon would have waived parental consent and operated on the spot; but, as things were, the child was kept waiting in the ante-room to the operating theatre while police in London were contacted and the parents found, in order that they might give verbal consent to the operation.

To pass from medical topics, there are a number of other matters in which parental consent is absolutely necessary. I believe the Boy Scouts' Association have a very sensible rule by which a boy must get parental consent if he is to go swimming at a boys scouts' camp. Similar consent is required by the Air Cadet Corps before a cadet goes flying. And if a child is to go abroad—and in these days of school journeys a great many children are taken abroad—a parent must sign the child's application for a passport. Again, a parent is required to join in a deed of apprenticeship, and there may be a question of parental consent to sending a child to a grammar school until the completion of his General Certificate course. There are also the exceptional incidents such as enlistment in Her Majesty's Forces and marriage, and in those cases, too, parental consent is required.

Under this clause, as I read it, the local authority will not possess parental rights, and there will be at least some delay—I believe serious delay—in obtaining that parental consent. I am aware that under subsection (7) of this clause it is made the duty of any parent or guardian of a child committed to the care of a local authority to secure that the local authority are informed of his address for the time being. I have grave doubts as to the efficacy of this clause. The parents or guardians with whom we are dealing are, so to speak, by definition rather irresponsible people: the court has already found that they have not enough sense of responsibility and good citizenship to look after their own children. Can we rely on such persons meticulously to inform the local authority, perhaps a very distant local authority, every time they go away on a visit? Are we to be sure they will not go off abroad and move from hotel to hotel, rendering it quite impossible to obtain their necessary parental consent for decisions affecting the child?

Finally, will your Lordships please consider what this consent is worth when it is obtained? The parent has not the right under this clause to regain possession of the child. He is a parent who has been found unfit to have the custody of the child; a parent who has permanently disposed of any duties in connection with the child. Is this consent of great value? I am asking your Lordships, I am well aware, to make an important change in the Bill. But I beg that consideration may be given, before the Report stage at any rate, to some means (I do not know whether I have adopted the right means or not) by which the local authority, without infringing the order of the court, may in some circumstances pass a Section 2 resolution under the Children Act and assume parental rights, for I am gravely troubled as to the difficulties of administration which will otherwise be apparent and which will certainly affect the children in question very adversely.

Amendment moved— Page 3, line 33, leave out ("received by the local authority into their care under section one of that Act.") and insert ("committed to the care of the local authority as a fit person under section sixty-two of the Children and Young Persons Act, 1933.")—(The Earl of Iddesleigh.)


Before the noble Lord who is in charge of the Bill replies, I should like quickly to make two points which I hope will show that the noble Lord should resist this Amendment and that your Lordships should not accept it. They are both in connection with the purpose of this Bill. That purpose received the approval of your Lordships in all parts of the House, and it was in these divorce cases to make proper provision for the children. If the Amendment that has been put down by the noble Earl, Lord Iddesleigh, were accepted, the effect would be that the children would have been transferred, as it were, to the Children and Young Persons Act, 1933, which Act provides, in Section 84 (4) that the Secretary of State may at any time in his discretion discharge a child either absolutely or conditionally from the care of the person to whom he has been committed. It would therefore clearly be inappropriate that an order of the Divorce Court should become subject to discharge by the Secretary of State in this way.

Secondly, under the same section, subsection (6), an order such as these children would then come under may, on the application of any person, be varied or revoked by a juvenile court acting for the petty sessional division or place within which the child lives. Experience of juvenile court justices is not, surely, such as would fit them to exercise the powers of the High Court over these children; and, frankly, it would clearly be wrong to give an inferior court power to vary or revoke an order of the High Court. For these reasons I certainly hope that the Amendment in the form in which it is will not be pressed.


I am grateful to the noble Lord, Lord Chesham, for putting two important points, and I should like to put a third point against the Amendment. However, before doing so, may I say, in reply to the noble Earl who moved the Amendment, that the provisions of Section 1 of the Children Act, 1948, are more appropriate in the circumstances of the sort of case envisaged by this Bill than are the provisions of Section 62 of the Children and Young Persons Act, 1933. Under Section 1 of the 1948 Act the local authority have a duty to receive into their care a child under the age of seventeen who has no parents or guardian or who has been abandoned by his parents, or whose parents are unable to provide for his proper accommodation, maintenance or upbringing. The local authority must then deal with the child in accordance with Part II of the Act. This means that the local authority must exercise their powers so as to further the bests interests of the child and afford him an opportunity for the proper development of his character and abilities.

I do not think the noble Earl was quite right when he dealt with the authority of the parents. Where a child is received into care under Section 1 of the 1948 Act, his parents are not deprived of all responsibility for the child, whose legal custody remains with them. In the case of the 1933 Act, which the noble Earl wishes to be applied to this Bill, a juvenile court, if satisfied that the child is in need of care and protection, may among other things commit him to the care of a fit person, including a local authority. In such a case the local authority are bound to deal with the child in accordance with Part II of the 1948 Act. So, strictly speaking, all that the noble Earl's Amendment does is to make the 1948 Act apply in another way, going around the mulberry bush instead of straight to the spot.

The other disadvantage of the noble Earl's Amendment is that under the Act of 1933 it imports the consequences which follow on the making of a "fit person" order, and these consequences are inappropriate in the case of a child who has been committed by the Divorce Court. A "fit person" order usually is made where there is some element of neglect or moral danger to the child, and where the child is in need of protection because there is an element of neglect or moral danger; and that is not the sort of case which would normally come before the Divorce Court. In the sort of case with which the Divorce Court is concerned there is not necessarily any element of neglect or moral danger. it could be that the parents are not in a position to deal with the child in the way that the Divorce Court thinks is right and proper, and in those circumstances it is not felt proper that the rights and duties of the parents should be displaced as they would be under the 1933 Act, and would not be, I submit, under the 1948 Act. For this reason (and that reason is the third reason against the Amendment of the noble Earl), in addition to the two reasons already given by the noble Lord, Lord Chesham, I hope that the noble Earl will not press his Amendment. If he does, I hope that your Lordships wilt resist it.


In view of the speeches that have been made, I shall not press the Amendment. I admit the validity of the arguments that have been used against me, but, at the same time, I have received no answer to the points that I made which bore on the grave disadvantage that will occur to the child if parental rights are not exercised. I maintain my opinion that, in some circumstances at any rate, if not in all cases, it would be possible for the local authority to pass a resolution under Section 2 of the Children Act in respect of these children, and I beg the noble Lord, Lord Ogmore, to consider whether anything can be done at a later stage of the Bill to meet the practical points which I have made. For the moment, I beg leave to withdraw my Amendment.


Before the noble Earl withdraws his Amendment, may I say that I am very ready to look at this point again, because dealing with all these Acts under application is a very complicated matter. As I have already indicated, the views I have expressed are entirely contrary to those of the noble Earl. Both of us cannot be right. It may be that I am wrong, and I should like to look at the point again before Report stage. If the noble Earl is right, I will see whether something cannot be done about it. On the other hand, if I am right, nothing can be done about it.


I am greatly obliged to the noble Lord.

Amendment, by leave, withdrawn.

LORD LATHAM moved, in subsection (5), to leave out paragraph (a). The noble Lord said: The purpose of this Amendment, to leave out paragraph (a), is to remove a dichotomy between powers and responsibilities. Under the clause as drawn, whilst local authorities have the responsibility for the maintenance of children dealt with under the Bill, nevertheless they are subject to the direction of the court. I am moving this Amendment at the request of the London County Council. I would not say that the London County Council's powers or responsibilities in this connection are any different from those of any other local authority, but the extent of their responsibility is certainly unique. At the present time, under various Acts of Parliament they have no fewer than 9,000 children in their care, for the maintenance of which they are responsible. These children are not all citizens of this country. They include citizens and in some cases, I suppose, denizens of the various parts of the Commonwealth.

I think your Lordships should appreciate that the maintenance of children under this admirable Bill is only a part of the general responsibility of local authorities for the care and maintenance of children under various Statutes. I am advised that in none of these Statutes is there any requirement that a local authority, in discharging the responsibility cast upon it, must act in accord- ance with the direction of a court. It was felt that if that were the case, the care and maintenance of children would be impeded. If these children have to be dealt with as a category of their own, the local authorities feel that as regards that category, but not as regards any other category, they cannot act except within the precise (whether rigid or flexible) directions of the court. In these circumstances, it is the view of the London County Council that this provision could operate seriously to the disadvantage of the child.

Looking after children is a complicated and specialist business. In dealing with young human beings what is needed, apart from other qualities, is the ability to adapt one's care and solicitude for the child to the circumstances and needs of the child. The London County Council think, and I have no reason to doubt their wisdom in this matter, that the provision that they should be subject to the direction of the court is an unwise one and would not inure to the benefit of the child. It would create, as it were, a separate sector of children within the care and maintenance of local authorities. I hope that my noble friend Lord Ogmore or the noble Lord, Lord Chesham, who has not the conduct but, shall I say, supervision of the Bill from the point of view of Her Majesty's Government, may be able to accept the deletion of this paragraph, which I submit does no harm to the admirable general provisions of the Bill. I beg to move.

Amendment moved— Page 4, line 8, leave out paragraph (a).— (Lord Latham.)


I do not want to say anything about the merit of this Amendment—my noble friend Lord Latham has adequately explained it—but I should be glad of an explanation of why it is now found necessary to impose this restriction on local authorities. When we passed the Children Act in 1948, it was not imposed. It is a new restriction. It is imposed either as a result of the experience since 1948 (and if so, I should be glad to know what that experience is and why this is thought necessary) or because of an omission in the 1948 Act which it is now desired to correct. Except for one or other of those contingencies, it is difficult for me to understand why it is thought necessary now, after nine years of experience of the Children Act, to impose this 'additional restriction on local authorities.


My Lords, while I do not feel that I can accept the suggestion contained in the noble Lord's Amendment, I can accept that there is some force in what he says. I can understand why he should put this matter forward. If I may reply to the question raised by the noble Lord, Lord Silkin, I think that I can more or less deal with both points at the same time. I believe that the local authorities and the London County Council, for whom the noble Lord. Lord Latham, speaks, are rather squealing before they are hurt in this matter.


Surely that is the time to squeal.


But it seems to me that you look such a fool when you yell loudly and are not hurt afterwards. We are talking of divorce cases, and in the result I think the judge should be able to give directions to the local authority if he thinks fit.

I do not believe—and this is where the point about squealing before being hurt comes in—that any court will give complicated and controversial directions. What I think is more intended in this matter is that, where the parent wishes to continue some arrangement already in existence for the child, and for which he or she is willing to pay the cost, the judge should be able to order that the child to be cared for by the local authority should be subject to the continuance of that arrangement. An example might be if a parent was maintaining a child at a public school and the judge felt it desirable that that arrangement should continue. In that case, he might direct that the child should be maintained at the public school by the local authority, subject to the proper payment by the parent. In the same way, it might be desirable to give some kind of directions about the access which the parents are to have. There is there, in a way, some departure from the previous provision of the Act about which the noble Lord, Lord Silkin, has inquired. But that creates a difference only to this extent: that there are probably certain factors which would apply, such as the access by parents, as a result of the making of these orders following a divorce.

The other thing we have to bear in mind is that before he makes an order under Clause 5 of the Bill the judge is bound, under subsection (2), to hear any representations which the local authority may wish to make. The local authority will then be able to put its views to the court about any directions which the court has in mind to make. Further, the local authority is entitled to apply to the court for a variation of the direction if, for any reason, it turns out to be impracticable or to be not in the child's best interests. I think it would be difficult to take away from the Divorce Court the power of controlling the upbringing of these children, which is the purpose of the Bill. The Court would, I think, know best the circumstances of the family background, and I am sure can be relied on to take full account of the views of the local authorities. That should make for a situation more like that which the noble Lord requires.


I confess that the noble Lord, Lord Chesham, has gone some way to dispose of the doubts and misgivings which I personally have in regard to this subsection; but whether that be the case so far as the L.C.C. are concerned, I cannot pre-judge. However, what the noble Lord did confirm, in his admirable explanation, is that there could be—and it might in some circumstances be desirable, though I doubt it—a kind of separate category among the many children, such as the 9,000 children looked after by the London County Council, entitled to special rights and special directions. I am not sure that that is desirable, notwithstanding the fact that the local authorities will have the right of audience before the judge when he is making his order, because circumstances change so quickly in regard to children. I regret that this flexibility should be removed from local authorities with regard to this category of children. However, I should not wish to do anything to impede the free and speedy passage of this Bill on to the Statute Book, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 6 to 16 agreed to.

4.16 p.m.

LORD OGMORE moved, after Clause 16 to insert the following new clause:

Application of enactments regulating the enforcement of maintenance orders

". Any order for maintenance or other payments made by virtue of this Act or any corresponding enactment of the Parliament of Northern Ireland shall be included among the orders to which section sixteen of the Maintenance Orders Act, 1950, applies (which section specifies the maintenance orders which are enforceable under Part II of that Act) and, in the case of an order made by virtue of Part I of this Act, shall be a maintenance order within the meaning of the Maintenance Orders Act, 1958."

The noble Lord said: This is a rather technical Amendment, and its object is to ensure that orders for payment of maintenance or other financial provision for the benefit of a child made under the powers conferred by Clauses 1 and 3 of the Bill are treated as maintenance orders for the purposes of the Maintenance Orders Act, 1950, and the Maintenance Orders Bill now before Parliament, so as to be registrable and enforceable under either of those Acts. The Maintenance Orders Act, 1950, enables a maintenance order made by a court in any part of the United Kingdom to be registered and also to be enforceable in the corresponding courts elsewhere in the United Kingdom, so that an order made by the Divorce Court under the powers conferred by the Bill will be capable of being registered and enforced in Scotland and also in Northern Ireland. Under the Maintenance Orders Bill, which, as I have said, is now before Parliament, maintenance orders made by the Divorce Court will be registrable and enforceable in magistrates' courts, and the Amendment will extend this situation to orders relating to financial provision for children under the present Bill. I beg to move.

Amendment moved— After Clause 16, insert the said new clause.—(Lord Ogmore.)

On Question, Amendment agreed to.

Clause 17 [Short title, extent and commencement]:


This Amendment is consequential on the new clause, which will enable orders made under any legislation corresponding to the present Bill which may be passed by the Parliament of Northern Ireland to be registered under the Maintenance Orders Act, 1950, which makes reciprocal provision for the enforcement of maintenance orders throughout the United Kingdom. It is therefore necessary to provide, as this Amendment does, that the Bill should apply to Northern Ireland so far as it affects registration under the Act of 1950. I beg to move.

Amendment moved— Page 10, line 6, after ("Act") insert ("(except so far as it affects Part II of the Maintenance Orders Act, 1950)").—(Lord Ogmore.)

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

House resumed.