HL Deb 02 April 1973 vol 341 cc8-22

2.51 p.m.

Report received.

Clause 1 [Quality of parental rights]:

LORD SIMON OF GLAISDALE moved Amendment No. 1A: Page 2, line 1, leave out subsection (2).

The noble and learned Lord said: My Lords, this first Amendment raises one of the points which I put to the noble Viscount, Lord Colville of Culross, on Second Reading. I raised a number of points and he was kind enough to write to me about one of them, sending a copy to the noble Baroness, Lady Bacon, on the Opposition Front Bench—


My Lords, will the noble and learned Lord forgive me for interrupting? I have not received any such letter, nor a copy of one.


Then, my Lords, let me hand the noble Baroness mine. I was only going to say that the point was raised on subsection (3) of this clause, and the noble Viscount's reasons seemed to me to be so cogent that I have not ventured to put down an Amendment dealing with it. But he did not say anything about subsection (2), which I think aroused considerable apprehension in everybody who addressed your Lordships in Committee. As your Lordships know, subsection (1) puts men and women, husbands and wives, mothers and fathers, in a position of equality of parental rights. Subsection (2), to a large extent, reproduces in substance a provision of the Custody of Infants Act 1873, but it does that with three important differences. The first is that the 1873 Act was limited to separation agreements, whereas subsection (2) extends to ante-nuptial agreements and I think every one of your Lordships who addressed the Committee thought that to be objectionable. The second difference is that under the 1873 Act any stipulation derogating from parental rights had to be by deed, whereas under subsection (2) the agreement can be merely oral. The noble and learned Lord, Lord Gardiner, in particular, who unfortunately cannot be here to-day, raised strong, arguments against such agreements being given legal sanction. The third distinction is that, although the equivalent of this subsection was necessary in 1873, it is unnecessary to-day.

I need not repeat the arguments that were put forward in Committee against allowing ante-nuptial agreements derogating from parental rights under subsection (1). It was pointed out that that is almost the worst time in which to allow parents, or potential parents, to derogate from the rights given by this Bill. Moreover, ante-nuptial agreements would be entered into at a time when there were no children at all, and minds might be changed very much when there were children. Indeed, I would venture to go further and say that there seems to be no reason at all for sanctioning ante-nuptial agreements derogating from parental rights, and separation agreements derograting from parental rights, but not giving any sanction to any other agreement. For example there might be an agreement that when a child was born it should be brought up in some particular way, but one of the parties might have a change of faith. So there seems no reason why that should not have the same sanc tion as an ante-nuptial agreement or a separation agreement.

The second point of which I ventured to remind your Lordships was that under the 1873 Act an agreement derogating from parental rights had to be by deed. That would generally mean, as the noble and learned Lord, Lord Gardiner, pointed out, that there would be legal advice available to the parent before that parent gave up some right that was vouchsafed by the law. Under this clause, however, that stipulation that the agreement must be by deed has disappeared; indeed, the agreement may not even need to be by writing. The third point is that, in my respectful submission, this whole subsection is unnecessary. In 1873 the common law gave all parental rights to the father to the exclusion of the mother and everyone else. The common law therefore regarded any agreement by the father to give up his parental rights as contrary to public policy and void. By about the middle of the last century, separation agreements had come to be recognised as valid by the law if entered into between husband and wife, but still, until 1873, the separation agreement could not validly include any stipulation by which a father gave up his right to custody, because that would have been against public policy according to the common law and void. In 1873 Parliament said, very much in the terms of most of this subsection, that a father in a separation deed could give up his custody rights to the mother. That was necessary, as I said, because the common law had previously said that no such stipulation was valid. But it is quite unnecessary to-day because by subsection (1) of this clause any such agreement is perfectly valid. Any father can quite validly give up his custody rights to the mother, since the mother has an equal right with him to have the custody of their children.

That leaves only the end part of subsection (2), which says that no agreement entered into between the parents providing for the custody of the children shall be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it". Now that is purely declaratory of the existing law. It merely restates what is in the Custody of Minors Act, so far as England is concerned, and the Guardianship of Infants Act, so far as Scotland is concerned. Those two Acts say that in any event no court shall make any order unless it is satisfied that the arrangement is for the paramount benefit of the child. Therefore, the whole of subsection (2) is now unnecessary.

In addition to that, it contains a stipulation which everyone, I think, has thought undesirable; namely, giving legal sanction to ante-nuptial agreements derogating parental rights. In following the i873 Act it is inapt at the end of line 4 in referring to an agreement which forms part of an agreement made before and in contemplation of their marriage". That was apt in 1873 because any agreement providing for custody contained in a separation agreement was necessarily part of another agreement. But an agreement that, say, children should be brought up in a particular faith might be the whole of the ante-nuptial agreement, and therefore, in my respectful submission, not only is subsection (2) unnecessary and contains an undesirable stipulation in referring to ante-nuptial agreements, but its drafting is in any event not what is intended.

I need to add only this. The noble Viscount himself was a most distinguished chairman of the Select Committee on Consolidation Bills, and he would be the first to recognise that it is undesirable to keep unnecessary provisions on the Statute Book. This is one. I have also ventured to put down a later Amendment on a similar provision as to Scots law. I beg to move.

3.3 p.m.


My Lords, I think that if I were to intervene at this stage it might save a certain amount of debate, although the last thing I wish to do is to curtail what noble Lords or noble Baronesses want to say. I owe the noble and learned Lord, Lord Simon, and the noble Baroness opposite an apology about this, because I am in the process of trying to get a redraft of Clause 1(2) which meets at any rate some of the points of the noble and learned Lord. The difficulty about it has been that it has proved quite extraordinarily difficult to produce any- thing which covers the various shades of opinion which were expressed at Committee stage. I am sorry the noble Baroness did not get a copy of the letter about Clause 1(3), but I have at the moment another letter in draft, which I was proposing to send to those who took part in this debate, with three versions of Clause 1(2) for them to consider and to tell me which, if any, they prefer. I am sorry this has not been done by to-day. The same thing would apply to Scotland, if any of these found favour in the sight of the House; but I thought it better, in view of the complexities of this, if I were to have the consultations that I promised at Committee stage. I apologise I have not done this so far, but I promise that I will and that this matter is going to be amended. It is merely a matter of trying to get it right.

The only thing I would add to that is that, although I take many of the points that the noble and learned Lord has made—we are certainly going to leave out references to ante-nuptial agreements—what I am not quite sure about is the position he has now taken up that the whole of this subsection is unnecessary. With great respect to him, I do not recall his having taken this position before.


My Lords, the noble Viscount is perfectly correct in his recollection. It is only when I looked into the matter again after Committee that it seemed to me that the last limb was merely restating existing Statute Law.


My Lords, there is a difficulty about this—and I am simply thinking on my feet at the moment because I am taken a little by surprise at this proposition. If we repeal the 1873 Act, which is repealed in the Schedule, then the reference to a separation agreement being made by deed disappears from the law. The matter would apparently then be left to common law, and the common law would be entirely at large. The noble and learned Lord shakes his head, but I cannot understand at the moment why, if we remove all references to the requirement for a deed, we do not then leave all agreements of this sort—that is, separation agreements handing over custody—to be dealt with whether they are made orally or in writing. I thought that this was an objection of the noble and learned Lord, and that he thought that they should be made only in writing. If we do not provide for an equivalent of the IS73 Act, it seems to me that this is precisely the effect that will ensue. I should therefore like to consider this point, which is a new one to me; and I am afraid this is going further to delay the delivery of a draft to those who have been good enough to take part in this discussion.

I did not see this Amendment until I arrived at the House this afternoon. I am sure that is my fault, but I have not really had time to go very much further into it than I have indicated. What I would therefore ask the House to do is to give the Government a little more time on this. We have had a further development to-day and I think this requires careful consideration. I have had three meetings with colleagues and advisers on it, and we have not got it right yet. I hope that, with the promise that we are definitely reconsidering this, we may leave the Bill as it stands for the moment; but it will certainly be changed at some stage, I hope here, but, if not, in another place.


My Lords, I should like to thank the noble Viscount for giving the House an account of what is happening. He will remember, as he has just said, that the last time we discussed this, during the Committee stage, the noble and learned Lord, Lord Simon, moved an Amendment which, as the noble Viscount says, was not quite so wide as the one which he has moved to-day. The one which he moved on that occasion concerned the ante-nuptial agreements and I think there was agreement from all parts of the Committee that it would be better to leave out all reference to ante-nuptial agreements. That view was taken because it was thought that by leaving any reference to ante-nuptial agreements in the Bill it would in fact be giving some kind of legality to something which had not been given legal validity before.

On that occasion the noble Viscount said he would like time to consider all the points that had been put forward, and that he would have informal discussions. About half an hour ago I was feeling a little aggrieved in that those discussions had not taken place. Nor had I had the letter; but I see now, reading the letter, that it in fact refers to subsection (3) and not to subsection (2), for the reasons that the noble Viscount has given. I am very pleased indeed to hear the noble Viscount say that the Government are going to take out all reference to ante-nuptial agreements. Like the noble Viscount, I have had an opportunity to read the Amendment of the noble and learned Lord, Lord Simon, only during the last half hour, and I, too, should like time to think about this.

I would press the noble Viscount a little further. He said he found it rather difficult to re-write this subsection. It would be preferable if we could have this new draft for the Third Reading in this House, rather than leaving it to go to another place. We have discussed it twice here. I am not yet sure when the Third Reading is coming in your Lordships' House, but I should have thought, with the noble and learned Lord, Lord Simon, having taken the initiative in this, and with his having received support from all quarters of your Lordships' House, that it would be appropriate if we could have the re-draft to consider here. In this House we have the advice of the learned Law Lords, and I should have thought it would be most appropriate to have the re-draft here, rather than waiting for it in another place. If the noble Viscount could give us this assurance I would agree that it would be as well to leave this part of the Bill as it is at the moment.


My Lords, I must apologise to your Lordships—


If I may have leave, would the noble and learned Lord allow me to answer the noble Baroness before he speaks? My Lords, I should be very glad to give the noble Baroness that assurance on the basis that we left it at the Committee stage. At the moment somebody is actually typing these letters in my office preparatory to sending them to the noble and learned Lord and the noble Baroness, but the spanner which the noble learned Lord has now thrown into the works is that he wants the whole thing left out altogether. That means that I shall have to go back to my colleagues and my advisers and we shall have to start all over again. I would suggest that I still circulate the three versions of the Amendment of this subsection—that was the basis on which we left it last time—and that we should deal with the matter on Third Reading of the Bill. If I now have to start all over again we shall get nothing at Third Reading at all. Perhaps the noble and learned Lord and the noble Baroness would be content to leave the matter at the point reached on the Committee stage, and if we have to do even more as a result of what has been said to-day that that should be left to another place?


My Lords, I was about to apologise to your Lordships for having put this Amendment down so late, but I was waiting because I thought that the arguments in Committee were so convincing that the noble Viscount would himself put an Amendment down. It was only on Friday, when I found that that was not done, that I put this down so that the matter could be further discussed. Speaking for myself, I am quite content to leave the matter further in the noble Viscount's hands. I am grateful for his cooperative attitude, and I think it would be better to get our half-loaf on Third Reading and hope that we might get the whole bread perhaps in another place. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.14 p.m.

LORD SIMON OF GLAISDALE moved Amendment No. 1B:

Page 2, line 44, at end insert— ("(9) In the Guardianship of Minors Act 1971 in section 1 "or any right at common law possessed by the father" and section 2 are hereby repealed.")

The noble and learned Lord said: My Lords, this raises a point of which I am sorry to say I gave the noble Viscount no notice in Committee and therefore it is not surprising that he was taken by surprise. It really arises on Clause 10(8) which is a Scottish provision, and I asked the noble Viscount whether there was any English equivalent and, if not, why there was not. I have had a chance to look further, and so far as I can see there is no English equivalent, and I cannot see why not. The way the matter—


My Lords, before the noble and learned Lord makes a long speech on this Amendment, there is an English equivalent and I will show him where it is in a moment.


My Lords, then I shall not make a speech at all. I beg to move.


My Lords, the English equivalent is in the English Repeal Schedule, Schedule 3, page 17, lines 36, 37, 38 and 39. The reason why it is spelt out in the Scottish half of the Bill is that there is no Scottish Repeal Schedule.


My Lords, I am very grateful to the noble Viscount. I did go through the Schedules and missed it there. He is perfectly right. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10 [Equality of parental rights]:

LORD SIMON OF GLAISDALE had given Notice of his intention to move Amendment No. 1C: Page 10, line 5, leave out subsection (2).

The noble and learned Lord said: My Lords, this is the same point in relation to Scotland as was Amendment No. 1A which has already been discussed. I do not move the Amendment.


My Lords, I was a little surprised that my noble and learned friend Lord Simon of Glaisdale should have been taken in by this. It is a very old Parliamentary lesson that if ever a Government want to do something and not reveal it they do it in a Schedule.

Clause 11 [Jurisdiction and orders relating to care and custody of children]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1: Page 1, line 28, leave out from beginning to ("where").

The noble Viscount said: My Lords, on behalf of my noble friend I again venture into the troubled Scottish waters and I hope that I shall have the agreement of the noble Lord, Lord Hoy, in what I am about to say. It would be convenient to discuss Amendments Nos. 1 and 2 together. The situation really is that Amendment No. 1 is simply a reference. We leave out the reference to subsection (6) of Clause 11, which Amendment No. 2 would in fact remove from the Bill. The effect of subsection (6) at the moment is that no court order requiring payments by either parent to a local authority having care of a child committed to the authority under Clause 11(1) can be made in the case of an illegitimate child.

This subsection was put in originally because there is already provision under Section 1(3) of the Illegitimate Children (Scotland) Act 1930 for the ordering of maintenance payments by the father or mother or both to any person entitled to the custody of the child. The Government originally thought that a specific exclusion in respect of illegitimate children should be made in the Bill so as not to duplicate the provision, but it is clear that persons, among others, who are entitled to custody under the 1930 Act include a local authority. So it is, we think, preferable not to complicate the whole matter by having inconsistent provisions in the 1930 Act and in subsection (6) of this Bill which might give the impression that local authorities in Scotland were being prevented from recovering maintenance from parents relating to illegitimate children in their care because of subsection (6), whereas in fact they would still be able to do it under the 1930 Act. We want no doubt about this. Therefore, by Amendment No. 2 we leave out the provision in the Bill which might cause confusion and we shall make perfectly certain that the local authorities retain the right they have always had since 1930. In fact it will make no difference to the law at all except to make it a good deal clearer. I beg to move.


My Lords, I am grateful to the noble Viscount for what he has said. This is the first indication that I have had of any Amendment. I was in your Lordships' House last Thursday and no Amendments appeared then; and of course we do not meet on Fridays; and certainly never on Saturdays or Sundays. It is only to-day that these Amendments have become available to us. I am a little surprised that we did not have word from the Scottish Office about this, or even that they were putting down Amendments, because we have had a fair amount of correspondence and indeed conversations on this matter. I do not want to complain too much about it; but it is a little difficult when, having been absent since Thursday, you come back on Monday and, without any notification at all from the Scottish Office, find that Amendments have been put down. The noble Viscount will remember that when we were taking the Bill through the Committee stage I suggested that we ought not to push it too quickly forward; for when you are discussing the law of the land it is better to take a little time and get it correct rather than rush it through and make mistakes. In an earlier Amendment, the noble Viscount himself said, "Do not push me too hard."

Let us give it more time. If we had another week to think this matter over we should make better progress. I am grateful for what the noble Viscount has said. The local authorities in Scotland, like other local authorities, have a burden to carry in respect of illegitimate children. It causes them some concern and they wonder whether they are to be cut out or not. The noble Viscount has assured us that the action he has taken this afternoon is not to alter the law but to make it clearer to those concerned in it. But it still gives to the local authorities the right to reclaim from parents, erring or otherwise, some of the expenses entailed by the local authorities in maintaining these children—and rightly so, because the child is not guilty of any offence. But it is also right that the local authority should ask parents to face up to their responsibilities. The noble Viscount made that clear; and that is an advantage in the law itself.


My Lords, I am sorry about these last moment Amendments. I do not know what happened. The noble Lord was kind enough to send me the letter from the Scottish Law Society. That is being considered. Some of it, as I think I said last time, appears to go to the root of the Bill. I am not quite sure how far we can deal with that. I am not in day-to-day touch with this side of the question. It would be for my noble friend Lord Polwarth to say something about it. I think I ought now to exert a little pressure on the usual channels to try to slow matters down a little before the Third Reading. I am sorry about this; we have all been slightly caught by surprise, but at least I am glad that the noble Lord approves of the two Amendments I have been speaking to.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 2 formally.

Amendment moved— Pare 12, leave out subsection (6).—(Viscount Colville of Culross.)

On Question, Amendment agreed to.

Clause 12 [Provisions supplementary to section 11]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 3: Page 12, line 31, after ("1886") insert ("or under section 2(1) of the Illegitimate Children (Scotland) Act 1930 or for the variation or discharge of any order made under the said Acts or by virtue of section 11 of this Act").

The noble Viscount said: My Lords, the noble Lord, Lord Hoy, will have had no notice of this Amendment either, so I will explain what it is about. I hope he will then consider it to be an improvement. What this Amendment does is to extend the range of circumstances in which a court would be empowered to order investigations to be made into and a report made upon all the circumstances of a child and on the arangements proposed for his care and upbringing. As Clause 12(2)(a) is drafted at the moment, the situations where a court can order investigation and a report are restricted to applications under the existing guardianship legislation for the custody of legitimate children. That is the reference to Section 5 of the Guardianship of Infants Act 1886. But we think it is desirable and in keeping with the spirit and objective of this part of the Bill to extend this power of the court in two directions: first to applications for custody made under the same Act of 1930 to which I have referred, the Illegitimate Children (Scotland) Act, and also to applications for the variation or discharge of orders as to the custody, care or supervision of children made under existing legislation, under the 1930 Act or under Clause 11 of the Bill. So we have a considerable extension of the provisions in Clause 12(2)(a). I hope, therefore, that the noble Lord will agree that this extends the protection in the Bill to (potentially at any rate) a larger number of children, including illegitimate ones, who might not be covered at the moment and that these are improvements that we should make. I hope that I have explained that carefully so that the noble Lord has had a chance to follow it. I apologise in advance for springing it on him and I hope that he and the House will agree that this is a good Amendment.


My Lords, I am grateful to the noble Viscount for explaining this Amendment. I am sure that it is because of my lack of ability to assimilate that I do not quite understand all that happens. I gather that this will make it possible for the court to extend the range of circumstances into which it may inquire. Beyond that, I do not see that it goes very far. I am a little surprised that the Scottish Office were able to go into all these points. May I remind the noble Viscount that a specific point was raised, not only by me but in a further letter from the Scottish Law Society, regarding the jurisdiction of the mother or the father in connection with the child. I regard that as highly important. The Law Society would argue that, having given equal power to the mother as well as to the father with regard to children, court cases might ensue under Clauses 11 and 12 and the only power (if it be called a power) that the father would have would be to pay the whole expenses of the court—whether the father or the mother won. I thought that these were issues to be regarded as highly important ones, and the Scottish Law Society did so regard them.

Therefore, while I am prepared to accept the Amendment, may I give notice to the noble Viscount that these issues raised by the Scottish Law Society will have to be dealt with? I repeat what my noble friend Lady Bacon said: that it would be preferable for them to be dealt with in this House and not in another place, because the Bill has started in this House. I hope that when we send this measure to another place it will be as perfect as we can make it. If it is not, then when it goes to another place it will suffer a little mauling. It would be better to prevent that. The other place always looks to this House to provide legal opinion of the highest quality. They are going to be disappointed if in Clauses 10, 11 and 12, so far as Scotland is concerned, these things are not dealt with.


My Lords, I have already told the noble Lord that this memorandum is being considered in Scotland. I would say a word about this now without my being thought definitive. I would only repeat what I said on the Committee stage when this subject was first brought to my attention. As I see it at the moment—and this is subject to any review that may take place in Scotland—the difficulty that the Law Society in Scotland raised applies to the whole principle of Clause 10(1). If one is going to have equal rights of custody and care between mother and father, I argued at the previous stage of this Bill that it would be wrong not to provide the machinery for allowing disputes of this sort to be resolved.


My Lords, I, too, would not withdraw what I said on Second Reading. On the last stage I said that the whole principle was being raised by the Scottish Law Society; but they are the people who, with others, represent the law in Scotland. I felt it my duty to put their complaint before the House. It is better that we find a solution to it here than to remit it to another place.


I appreciate that, my Lords, but I have to go on, because if they challenge the whole question of there being any adjudication in these matters (and this is what they are doing when they say there may be cases in court; and if this occurs and the wife has no money the husband would have to pay the costs to both sides) the only way to meet this that I know of at the moment is to deprive them of any access to the court at all, because there is no alternative. If you deprive them of any access to the court and you provide in Clause 10(1) equal rights and no method of sorting out disputes, I am afraid it is only a short step from that to departing altogether from the principle in Clause 10(1), which the noble Lord and I agree would be wrong. We want this in the Bill for Scotland as for England. Although I say that this is being considered, I am not sure that the point there raised does not go so fundamentally to the root of everything that we are trying to do in this Bill that it may be there is no solution which would satisfy them at all. If that is so I am sorry. All I can say is that it is being considered, and I would have the initial reaction as I had on the previous stage of the Bill.

On Question, Amendment agreed to.