HL Deb 15 December 1969 vol 306 cc844-54

4.21 p.m.


My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3a. —(The Lord Chancellor.)


My Lords, I want to say a very few words. After we have debated this Bill for some months, once more I want to express my profound disappointment that it has failed to do what I believe Members on both sides of this House wished it to do last July when we finished the Divorce Bill. At that time many Members expressed concern about the woman who will be compulsorily divorced despite the fact that she has not committed any matrimonial offence. There was no doubt that the attitude of Members changed when they were assured that a Bill would be introduced, which would go through this House before the end of the year, to afford some protection to this particular woman.

When the Bill now before us was introduced, I sought to move Amendments and failed completely. Now, of course, it has reached its final stage and will go to another place. There are those in this House who may think that my views are not shared by others outside who are in a position to understand the legal implications. I would only say that when I camel into the House just now I found waiting for me a letter from an eminent lawyer, who has spoken to me and to others on this matter before, and it says this: Finally to-day the point I want to emphasise is that this new Bill is simply a revised edition of the old Law Commission Working Paper No. 9, which has been going about for a couple of years at least. I do not want to repeat what I have said before, but I want just to remind the House that in July we believed that a new Bill would be introduced, or at least that the Bill which had been embodied in the Law Commission's Report No. 25 would be amended in such a way that there would be certain provisions which would protect the innocent woman who is to be divorced. But that has not been forthcoming. At this stage I can only say that the Bill we are now dealing with still has to go through another place. I understand that many Members there feel very strongly that it should be amended so that this protection shall be forthcoming. I hope that when this Bill returns here it will have been amended in that way.


My Lords, I did not take part in the discussions on this Bill during the earlier stages because it seemed to me that it was very appropriate to the objective which the noble and learned Lord on the Woolsack had in mind and which he assured us he would see carried through. But I cannot help rising to defend—not that it needs defence—the work of the Law Commission on this matter. To talk about this as a vieux jell which has been floating round for two years is really an insult to the very capable work which has been done by the eminent men at the Law Commission. It seems to me, as a lawyer who has perhaps given as much thought to this matter as has the noble Baroness's correspondent, that this Bill is admirably fitted for the job which the draftsman set out to do and which the noble and learned Lord promised us should be done.

The noble Baroness moved Amendments and has continually argued that a very much wider community of goods should be introduced, for which there is possibly quite a lot to be said. But, with great respect to her, that has nothing to do with the much narrower purpose of this Bill. I had some sympathy with her when the noble and learned Lord on the Woolsack was indicating that community of goods as a method of dealing with matrimonial property has a great deal to be said against it. No doubt it has, but his arguments were largely founded upon what has happened in France and Belgium and other countries where this was introduced a long time ago and not kept up to the needs of modern communities. I hope that before too long this matter may be raised as a general subject on a Bill which takes into account what has been done in the Scandinavian countries and in West Germany, where there is a good deal to be learnt as to what is feasible on the other side.

I have spoken to Scandinavian lawyers, and indeed to English lawyers, who have given a great deal of thought to this subject, and, as modified in the Scandinavian countries and in West Germany, I think there is a viable case to be made for what one might call a modern type of community of goods as between men and women in the matrimonial home. I hope that this matter will be looked at as a general problem; and because in relation to this particular matter this provision has not been regarded as providing a reasonable solution—and with that view I entirely agree—I hope that its value will not necessarily be dismissed, because there is a great deal to be said for it, and I think a much more careful and fuller study should be given to it in the light of experience in the Scandinavian countries and in West Germany.

4.27 p.m.


My Lords, as this Bill now speeds its way to the Statute Book, there is one matter about which I should like to say two or three words. It is a matter which I raised at an earlier stage of the Bill. It concerns Clause 35. Under Clause 35 Her Majesty's Judges are urged, when making decisions upon matters arising out of the Bill, to have regard to what is said in the Report of the Law Commission. I remember saying at that earlier stage that this was interfering with the freedom of Her Majesty's Judges to apply their own interpretations to the phraseology of the measure. We all know the very important part that interpretation plays in the administration of our laws; and I felt that this was unduly restricting the ability of Her Majesty's Judges to bring to bear their intelligence, their wisdom and their experience. Since I made those remarks—and this is not a case of post hoc ergo propter hoc—I notice that the Bar Council and the Law Society have both expressed exactly the same view. I am wondering whether, in view of this infectious adherence to the principles I adumbrated before, my noble and learned friend the Lord Chancellor still feels that it is wise to proceed with this particular clause, Clause 35, of the measure.

4.29 p.m.


My Lords, if I may reply to my noble friend Lord Leatherland first, there is nothing in the clause in question which makes any judge look at anything at all. All it says is that "he may"—there being some doubt at the moment as to whether he may or not. The noble and learned Lord, Lord Denning, told us that of course a judge would in fact look at such a Report, but there is some doubt as to whether he really should. There is nothing at all here to compel any judge to do so; it merely enables him to do so. So far as the views of the Bar Council and the Law Society are concerned, they were particularly expressed on a Report on the Interpretation of Statutes which has been published by the Law Commission. This Report favours legislation under which the judges should be able to look at a wide variety of documents, including, for example, White Papers; and for my part I agree that that is a much more doubtful question.

I think this is the third time that my noble friend Lady Summerskill has said that during the proceedings on the Divorce Reform Bill I gave her, or gave the House, some assurance that the Bill now before your Lordships would provide special protection for women who might be divorced under the five-year clause. This statement was, and is, wholly unfounded, and every time she has said this I have pointed out that it is wholly unfounded. Since her views have been given very wide currency, I must again repeat that point. Nobody could have been more at pains to make it absolutely clear that no-one on the Divorce Reform Bill should think that there was anything likely to be contained in this Bill would have that effect. I said so repeatedly. At the earliest stage of the Divorce Reform Bill I took the trouble to get a letter from the Chairman of the Law Commission summarising what would be the contents of this Bill. In order that the letter should be available to every Member I said on the Second Reading that I had already had copies made, and that they were available in my office (and I know that my noble friend Lady Summerskill had her copy) so that every Member could see exactly what this Bill would contain and nobody could think for one moment that there would be anything in this Bill relating to community of property. In fact the letter went out of its way to point out that the Bill would not assist those involved in divorce proceedings under the Divorce Reform Act.

It was during the Committee stage that my noble friend Lady Summerskill started suggesting that somebody had said otherwise. I at once intervened to recall this history to her and to say, perfectly plainly, that it was no good anyone thinking that this Bill would contain any special protection for those whom my noble friend has in mind. I pointed out that that Bill contained Draconian powers—powers such as a judge had never had before—to assist those women and to refuse a decree, in certain cases of hardship, or to say to a man, "You can afford to take out a policy to provide for your wife the pension she would have had if she had not been divorced, and if you will not do that I shall not give you a divorce".

I made it crystal clear throughout that this Bill would not contain any provisions in regard to community of property, which is indeed a difficult subject. As this has been raised before, and on the last occasion it was given very wide publicity, particularly by all the women's organisations, I am bound to repeat what I said before; namely, that there is no foundation at all for what my noble friend has said.


My Lords, if I was entirely under the wrong impression, why was it that we agreed in July that this Bill should be implemented on January 1, 1971, the same date as the Divorce Reform Act was to be brought into force?


My Lords, it was the House which decided, by an Amendment, that the Divorce Reform Act should be brought into force on January 1, 1971. In this Bill it was thought convenient because, as I explained, the Matrimonial Causes Rules have to be redrawn in the light of the Divorce Reform Act, and have to be redrawn in the light of this Bill; and, instead of having two completely different re-drawings, one after another, it was convenient that they should all be done together. That was the reason I gave.

On Question, Bill read 3a.

Clause 14 [Alteration of agreements by court during lives of parties]:

4.34 p.m.

THE LORD CHANCELLOR moved Amendment No. 1: Page 14, line 5, leave out from ("circumstances") to ("and") in line 8 and insert ("including, if relevant, the matters mentioned in section 5(3) of this Act").

The noble and learned Lord said: My Lords, this Amendment, like most of the other Amendments, is a drafting Amendment which makes it clear that in considering whether to vary a maintenance agreement by inserting (or increasing) provision for a child who is not the child of the paying party, the court is to have regard to the same factors as it would if ordering financial provision in favour of such a child. Clause 5(3) requires the court, when deciding whether to order a spouse to make financial provision for a child of the family of whom he is not the parent, to take into account, inter alia: (a) whether, and on what basis, that spouse had assumed responsibility for the child; (b) whether he knew the child was not his own; (c) whether anyone else is liable to maintain the child. These factors are obviously equally relevant when there is a question of inserting in a maintenance agreement financial arrangements for the benefit of a child, and the Amendment accordingly attracts Clause 5(3) to proceedings to vary such an agreement.

The Amendment also simplifies the wording, which reproduces the existing wording of the corresponding provision in the 1965 Act. I beg to move.

On Question, Amendment agreed to.

Clause 17 [Restrictions on decrees for dissolution, annulment or separation affecting children]:

THE LORD CHANCELLOR moved Amendment No. 2: Page 18, line 26, at end insert ("but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by subsections (1) and (2) above were not fulfilled.")

The noble and learned Lord said: My Lords, this is a drafting Amendment which makes it clear that a decree nisi made absolute after the court has made an order under Clause 17(1) cannot thereafter be challenged on the ground that the court ought not to have made the order. It is apparent from paragraph 46 of the Law Commission's Report, and from the note on Clause 17 of the Commission's draft Bill, that this is what the Commission intended. The object of requiring an order of the court is twofold. First, it provides for the possibility of an appeal--and the Rules will have to allow an interval after the making of an order before the decree can be made absolute sufficient to allow a party to appeal. Secondly, the making of the order is intended to exclude the possibility of a subsequent challenge to the validity of decree absolute on the grounds that Clause 17 has not been complied with. It is probably implicit in Clause 17(3) as drafted that the existence of an order does in fact exclude such a challenge to the validity of the subsequent decree absolute. But this is not said expressly, and it might be possible to raise a contrary argument. The Amendment eliminates any such possibility. I beg to move.

On Question. Amendment agreed to.

Clause 18 [Orders for custody and education of children affected by matrimonial suits]:

THE LORD CHANCELLOR moved Amendment No. 3: Page 19, line 12, leave out ("paragraph (a) above") and insert ("this subsection")

The noble and learned Lord said: My Lords, if no noble Lord objects I would ask leave to discuss Amendments 3 and 4 together, because they are linked Amendments which enable the Divorce Court to direct that steps be taken to make a child a ward of court wherever it has power to make a custody order. As drafted, Clause 18(1) reproduces the existing law in so far as the Divorce Court's powers to direct wardship proceedings arise only where there is a decree of divorce, et cetera, and not where the petition is dismissed. But its powers to award custody arise in either case, and it is anomalous that there should be a distinction in relation to wardship: either the powers should not exist at all, or they should exist wherever custody can be awarded.

The power to direct wardship proceedings is rarely exercised, possibly because, as the law stands, such proceedings have to be taken before another Division of the High Court—the Chancery Division. But the Administration of Justice Bill now before Parliament will transfer wardship jurisdiction to the Family Division (which will also exercise the High Court's divorce jurisdiction), and the power to direct wardship proceedings may become more valuable. The opportunity is also taken to substitute the more readily understandable expression "making the child a ward of court" for the traditional "placing the child under the protection of the court". There is no difference in meaning between the two expressions. I beg to move.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 4.

Amendment moved— Page 19, line 15, leave out from ("for") to ("court") and insert ("making the child a ward of").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendments Nos. 5, 6 and 7:

Page 19, line 15, at end insert— ("(1A) Where an order in respect of a child is made under this section, the order shall not affect the rights over or with respect to the child of any person, other than a party to the marriage in question, unless the child is the child of one or both of the parties to that marriage and that person was a party to the proceedings on the application for an order under this section.")

Clause 19, page 20, line 1, after ("18") insert ("(1A) and")

Clause 19, page 20, line 2, leave out ("it applies") and insert ("they apply").

The noble and learned Lord said: My Lords, if no noble Lord objects, I will move Amendments Nos. 5, 6 and 7 together, as Nos. 6 and 7 (which relate to Clause 19) are consequential on No. 5. Amendment No. 5, to Clause 18, provides expressly for the effect of a custody order made in divorce and other proceedings: (a) if the child is not the child of either spouse, the order does not affect the right of any other person—for example, his parent or guardian—to custody; (b) if the child is the child of either spouse, the order affects the rights of a third person only if that person was a party to the custody proceedings. The effect, under the current law, of a custody order on the rights of third persons is not altogether clear. There is some authority for the proposition that such an order operates only inter partes. This is the case of B. v. Attorney General. In that case, Lord Justice Willmer expressed the view that such an order did not affect the rights of any party not before the court, but this judgment was obiter, since the point did not arise directly and was not in issue before the court.

This comparative absence of authority has not caused any great inconvenience so far, probably because there is at present no situation in which the Divorce Court can award custody of a child who is not the child (whether legitimate, illegitimate or adopted) of at least one of the spouses. The result is that in almost every case the person with the greatest natural right to custody is necessarily a party not only to the divorce proceedings but also to the custody proceedings themselves. The Bill, however, makes a change in this position, because a "child of the family" may be a child of neither spouse. It becomes, therefore, necessary to state specifically what is to be the effect of a custody order on persons other than the parties to the marriage which is the subject of the divorce proceedings.

There are two possible approaches. First, the rule could be that any person with a claim to custody must be brought before the court and be bound by the court's order. This approach would have the advantage of reducing the chances of future disputes between, for example, foster parents and natural parents in which attempts might be made, by means of new proceedings, to frustrate the effect of a custody order made on the divorce of the foster parents. The alternative approach, which is adopted by the Amendment, is to write into the Bill the rule that divorce proceedings between foster parents cannot lead to the natural parent's right being overridden.

The reason for preferring the second approach is that otherwise the Bill would be introducing by a side door a change in a fundamental rule of family law, which is that, subject always to the intervention of properly constituted public authorities, a parent is entitled to the custody of his child. One may, for example, get a case where, because his duties require him to spend two years in a remote and unhealthy part of the world, Mr. Smith, a widower, entrusts his children to Mr. and Mrs. Jones, who Treat them as children of their own family. If, while Mr. Smith is still away, the Jones's marriage breaks down, it is only right that, as between Mr. and Mrs. Jones, the court should be able to decide who is to have custody of the Smith children. It is equally right that, on learning of the impending Jones divorce, Mr. Smith should be entitled (as he is) either to take his children away from the Joneses or to intervene in the custody proceedings: he may, for example, wish to make it clear to the court that he is content to leave the children with Mrs. Jones, but that, sooner than let Mr. Jones have them, he would come home and take them away.

What would be unacceptable would be that either Mr. Smith's rights should be overriden without his being a party, or that he should, by intervening, put himself at the risk of having those rights overridden. The Amendment accordingly provides specifically that in such a case Mr. Smith's rights are not prejudiced whether or not he intervenes in the custody proceedings. It provides in terms that a custody order is not to affect the rights to custody of anyone other than the spouses, unless (a) the child is the child of either or both of them, and (b) that other person was a party to the custody proceedings.

There is a further reason for not adopting the alternative approach. The Home Secretary has set up a Committee, announced on July 24, 1969, to consider the law, policy and procedure on the adoption of children and what changes are desirable. This review of adoption law will include the question whether long-term foster parents should be entitled to retain custody of a foster child against the wishes of his natural parents, and one of the obviously relevant factors will be the effect of divorce proceedings between the foster parents. My Lords, I beg to move.


My Lords, I would say simply that I hope that noble Lords will accept these Amendments. The noble and learned Lord has set out the two alternatives that could have been adopted, and I entirely agree with the way he has decided to handle it.

On Question, Amendments agreed to.


My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

On Question, Bill passed, and sent to the Commons.