HL Deb 16 April 1973 vol 341 cc980-91

6.42 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.—(Viscount Colville of Culross.)

On Question, Motion agreed to.


My Lords, before I call the first Amendment may I acquaint the House with the fact, that if the first Amendment is agreed to the second Amendment cannot be called.

Clause 1 [Equality of parental rights]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1: Page 2, line 1. leave out from ("agreement") to ("be") in line 7, and insert ("for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) above shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs. provide for either of them to do so; but no such agreement between husband and wife shall").

The noble Viscount said: My Lords, I understood that it was for the convenience of noble Lords who have been so kind as to take a great interest in this Bill that its driver should trail behind a collection of bunched Orders for Affirmative Resolution.

I have now the added complication that I have put down on the Marshalled List two sets of Amendments, one for England and Wales and the other for Scotland, in the alternative, because on the knotty subject of Clause 1(2) and Clause 10(2) of the Bill, where we propose the same solution in either case, there has been a very great deal of thought devoted to the problem by the noble and learned Lord, Lord Simon of Glaisdale, and the noble Baroness, Lady Bacon. I think that the explanations that I have given to them, and to the noble Lord, Lord Hoy, about this, both in previous speeches and in private correspondence, will have enabled them to distinguish between the two sets of Amendments I have put down.

For myself I prefer Amendments Nos. 1 and 3, and I believe that these go furthest to meet the points that have been raised on both the Committee and Report stages of this Bill. They get rid of any specific, and indeed I think any implied, reference to ante-nuptial agreements, which was the main bone of contention. They do not, it is true, go so far as the noble and learned Lord, Lord Simon, would like, by way of leaving out Clause 1(2) altogether; but then, we had a compact between us that we would not try to do that in this House but rather attempt to perfect the wording and leave in some statutory provision to guide the courts. What may happen in another place remains to be seen. I hope that I have fulfilled my side of the compact and have provided the House with two alternative versions by way of improving subsection (2). I would hope that the House will agree to the first of them, but I am, of course, entirely open to listen to what any noble Lord would like to say. I beg to move Amendment No. 1.


My Lords, the noble Baroness, Lady Bacon, very kindly said that I might intervene at this stage. I owe the noble Viscount an apology. He wrote to me setting out the two alternatives and asked which I preferred. I did in fact reply to him on April 4, and I sent a copy to the noble Baroness. For some reason she got the copy, but the noble Viscount did not get the letter I sent to him. I very much prefer the first of these two Amendments. In the first place, it does explicitly what the second only does implicitly. In the second place, I still dislike this subsection, for reasons which I hope to be allowed quite shortly to lay before your Lordships. I dislike it in so far as it renders either unenforceable or invalid certain perfectly innocuous and in some cases beneficial sorts of agreement. The No. 1 Amendment merely makes them unenforceable. Number 2 actually makes them invalid, and that seems to me to be an additional reason for preferring Nos. 1 and 3 to Nos. 2 and 4.

The noble Viscount was quite right. He has performed completely what he said he would do. The main objection to this subsection was the reference to ante-nuptial agreement, and every Member of your Lordships' House who addressed the House on the matter found it objectionable that ante-nuptial agreements could be made derogating from the right that was properly given by Clause 1(1). Since I do not propose to address your Lordships on Third Reading, may I say that I welcome very much that provision in Clause 1(1), which is the main provision of the Bill, and which seems to me to be conferring no more than justice on mothers. The noble Viscount has now met the principal objection to Clause 1 in both of the Amendments that he has tabled to Clause 1, although, as I said, I prefer the first rather than the second.

My Lords, I know that there is important business still to come, but since I undertook to be content at this stage with half a loaf only on the understanding that I hoped I might get the whole bakery when the Bill went to another place, may I indicate quite shortly why I think that subsection (2) is still wrong? In the first place it is unnecessary. It largely reenacts Section 2 of the Custody of Infants Act 1873. That provision was necessary then; it is no longer necessary to-day. It was necessary then because by the middle of last century the courts had come round to acknowledging the validity of separation agreements, but the common law still said that a father had exclusive custody of his infant children and that it was therefore contrary to public policy for him to agree to give up those rights; so that any agreement, even in a separation deed, to give up his rights to custody was void as contrary to public policy.

Since it was desirable that if people were to make separation agreements they could make provision as to the custody of their infant children, it was necessary in 1873 specifically to validate such agreements, and that is what the 1873 Act did. It did not, however, invalidate any other similar agreement. It did not invalidate agreement as to custody contained in any other sort of agreement than a separation agreement; it did not do that because that was unnecessary, as such agreements were invalid in any event. But this subsection says either that such other agreements are invalid or else that they are unenforceable, both of which seem to me to be objectionable.

As to the last limb of the subsection, the words— shall not 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". that is an agreement as to custody. That, it seems to me, is unnecessary to-day. It was necessary in 1873 because of what the common law said about such agreements. It is unnecessary to-day because Section 1 of the Guardianship of Infants Act 1925 so far as Scotland is concerned, and Section 1 of the Guardianship of Minors Act 1971 so far as England is concerned, say precisely in effect what is said by the words that I read at the end of subsection (2). Those two provisions say that the court in making any order for custody, any order in relation to a child indeed, shall take as its first and paramount consideration the welfare of the child. It follows from that that the court will not in any event enforce any stipulation if it is of opinion that it will not be for the benefit of the child to give effect to it. The result is that the beginning of subsection (2) is no longer required at all because subsection (1) says, in effect, that custody can be perfectly validly given up to the mother, whereas it could not in 1873; and the last limb is unnecessary because there are two statutory provisions which go even further than that last limb, which was necessary in 1873.

My Lords, may I give some examples of agreements that are invalidated or unenforceable by this provision. When the Bill was originally drafted, referring to ante-nuptial agreements I surmised that what the Government had in mind was the sort of agreement that might be made as to the religious upbringing of the child or the name that a child should bear or where and how a child should be educated. The noble Viscount was good enough to indicate that that surmise was correct. The objection, though, was as to agreement in those matters being made ante-nuptially; but the noble Viscount has now gone to the opposite extreme and the clause as it will be amended will provide that all agreements as to the sort of matters I have referred to—religious upbringing, education, the name of the child and so on—shall be invalid, or alternatively unenforceable unless they are only to take effect while the parties are separated while married.

My Lords, I could give many examples of the sort of agreement that is perfectly innocuous and therefore ought not to be made invalid or unenforceable, but may I give one where it would be positively mischievous to make it unenforceable or invalid, and that is an agreement made in contemplation of divorce. All those of your Lordships who have been concerned with questions of the custody of infants will know that by far the best thing for the child is for the parents to agree as to custody. A solution imposed by a court may be necessary, but nobody who has adjudicated in these matters will have any doubt that it is the second best solution. Far better it is for the child if the parents can agree. But under subsection (2), as amended, an agreement made in contemplation of divorce will either be invalid under Amendment No. 2 or unenforceable under Amendment No. 1. That will be so because it is in contemplation and to be enforced—if it is enforceable at all—not while the parties are separated while married, but when they cease to be married through divorce. So I would ask the noble Viscount, before the matter goes to another place, whether he will consider, specifically, that point and, generally, whether this subsection could not far better be dropped altogether.

There is one final minor point to which I should like to refer. Under the 1873 Act, agreements as to custody to take effect on separation were validated if contained in a deed of separation. That, at least, had the advantage that neither parent would give up the right to custody unless under legal advice. That point was made by the noble and learned Lord, Lord Gardiner, in Committee. As the clause stands at the moment, the merest oral agreement is equally effective; and I ask the noble Viscount to consider that point, too, before the Bill goes through another place. But having said all that, it is only right to acknowledge, again, that the noble Viscount has done everything he said he would do and, speaking for myself at least, I am very grateful for that.

7.2 p.m.


My Lords, during the Report stage, I complained a little because I said that I had not been consulted after the Committee stage and that I had not received a copy of a letter which the noble Viscount, Lord Colville of Culross, sent to the noble and learned Lord, Lord Simon of Glaisdale. It appears that last week, while I was ill and unable to be in London, I was rather over-consulted, because not only did I have the letters and telephone calls from the noble Viscount's office but I also received a copy of the letter of April 4 sent by the noble and learned Lord, Lord Simon, to the noble Viscount. Seriously, I should like to thank the noble Viscount for the great care and trouble which he has taken to try to meet the wishes of the House and of the Committee.

First of all, he produced last week two alternatives to subsection (2) of Clause 1. I wrote to him and said that, while I preferred one to the other, I did not really like either of them, which I think is exactly what was said in the letter which the noble Viscount did not receive from the noble and learned Lord, Lord Simon. I am grateful to the noble Viscount, because he then produced a quite different Amendment, Amendment No. 1, which we are now discussing. That meets the points which were made by nearly everybody who spoke on the Committee and Report stages about pre-nuptial agreements. This matter was raised during the Committee stage by my noble friend Lord Gardiner, who thought, as I thought, that the Bill as it stood gave validity to ante-nuptial agreements which they had not had earlier. This Amendment meets the points which were raised on that occasion and, because of that, I am very much in favour of it. I know that it does not go as far as the noble and learned Lord, Lord Simon, would like to go, because he would like to see subsection (2) deleted altogether, since, he thinks that in some ways it is un- necessary. I am not so sure about that, but I must say, listening to him to-day—


My Lords, I wonder whether I may interrupt. It is partly that I consider it unnecessary; partly that I consider it positively mischievous. I have two objections.


Yes, my Lords, I understand that. But, listening to him to-day, I can see that he has a point about divorce which I did not realise when I first looked at this Amendment, though it may be that the noble Viscount can give us assurances about that. But I agree that this Amendment is very much preferable to subsection (2) of Clause 1 as it stands in the Bill, and goes a long way to meet the points which were raised by so many Members during the Committee and Report stages. I should like to thank the noble Viscount for that.

7.6 p.m.


My Lords, I am grateful that, even if my communications are still somewhat awry, I have gone some way to meet the points raised. I ought to say a word on the speech of the noble and learned Lord, Lord Simon, not because I wish to give a definitive answer now, but simply to try to put what I believe to be the alternative point of view, of whatever merit may subsequently be judged. I think I agree with the noble Baroness that there is a place for some sort of restatement of this matter in the Bill. It may very well be that the noble and learned Lord is right and that the courts would come to whatever decision it is without any guidance from us in Parliament, but in order to avoid litigation on this subject and to avoid a positive gap being created in the law by the repeal of the 1873 Act, there is something to be said for a restatement of the policy against which that Act was enacted before the law is finally clarified again by the courts. Everybody may then know where they are and some unfortunate test case will not have to be taken at somebody's expense rather a long way up the judicial tree.

But it is only right, notwithstanding the perfectly plain provisions in Section 1 of the 1971 Act for England and Wales and Section 1 of the 1925 Act for Scotland, to the effect that the welfare of the child overrides everything, to remind the courts in this context that this is still so, in exactly the same way as was done in 1873. It may not be strictly necessary. Really good lawyers like the noble and learned Lord would never need to be reminded of that, but a case may get in front of somebody who is not quite so learned and who may need to be reminded that there is still this overriding duty. That is the reason I give for this restatement and I hope it is not unacceptable, because we must want to have this reminder that, in every possible circumstance, the courts should put the children's welfare first.

As for the other agreements being unenforceable, the situation under this Amendment, as I understand it, would indeed be that they were unenforceable as agreements, but that does not mean to say that the courts would never look at them. I am bound to say that I shall never get a compromise between some Members of this House who wish all ante-nuptial agreements to be totally void and invalid, and the noble and learned Lord who, I think, still considers that a court may from time to time wish to look at them to see to what extent, if at all, it wishes to carry out the intentions of those who made the so-called agreement. I shall never resolve this matter if there are these two points of view, and no draftsman will ever do so. In the Bill we are saying that they are not enforceable as agreement, but that does not prevent the courts from looking at them to see whether there is any merit in what the parties have arranged.


My Lords, would the noble Viscount say why he draws such a distinction between such agreements when they relate to separation during marriage and when they relate to divorce? Why should the court be allowed to do no more than look at them in one case and not in the other?


I think because when it comes to the divorce hearings (I stand subject to correction) the court has complete jurisdiction to decide whether or not it approves any arrangements that are being made, which meets the very valid point made by the noble and learned Lord that it is better to try to resolve the matter beforehand, but subject to the approval of the court. If the court does not agree then in the course of exercising its divorce jurisdiction it can make such arrangements as it thinks fit. I must take this point away; it is a new matter, as it was to the noble Baroness. I hope I am right. but if not I shall tell the noble and learned Lord instantly and try to inform him of the correct situation.

As to deeds and the necessity for writing, this has not been overlooked, but I am advised that it is no longer necessary specifically to provide for this because although in the vast majority of cases these documents could be in writing and would still be subject to being overridden on the grounds of the welfare of the children, there may occasionally be an oral arrangement which would be subject to being overridden for the benfit of the children. If it is oral and has not been worked out very well or drafted and considered by legal advisers it is more likely to be overridden. Since the court has, under the provision which the noble and learned Lord mentioned, this overriding ability we did not think there was any longer any necessity, as there was in 1873. to specify a deed as being the only method of doing it validly. That is why we left it in that form and I hope that, with further consideration, we may now allow this Amendment to go into the Bill with the agreement of both those who have spoken.

On Question, Amendment agreed to.

Clause 10 [Equality of parental rights]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 3: Page 10, line 5, leave out from ("agreement") to ("be") in line 11, and insert ("for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) above shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs, provide for either of them to do so; but no such agreement between husband and wife shall").

The noble Viscount said: My Lords, on behalf of my noble friend Lord Polwarth, I have had this matter considered by the experts in Scots law. I am advised that there would be no objection to doing the same for this purpose in Scotland as that which we have been discussing for South of the Border. It is identical in purpose and effect.

On Question, Amendment agreed to.

An Amendment (Privilege) made.

7.14 p.m.


My Lords, I beg to move that this Bill do new pass. I owe the noble Lord, Lord Hoy (although he is temporarily away from this place) a word about the Scottish situation. I am glad that this Bill has reached this stage and I am immensely grateful to those who have taken the trouble to give it the scrupulous care which it has received. Clauses 1 and 10 stand apart in giving the two spouses equal rights and obligations over the guardianship of their children and I think everybody is agreed that this is overdue; it is the correct thing to do and it has been welcomed. However, in Scotland there has been voiced a certain suspicion, in the Memorandum produced by the noble Lord, Lord Hoy, from the Scottish Law Society, that all was not entirely well North of the Border. If there is an objection to the principle of Clause 10, which gives equal rights—and I think the noble Lord, Lord Hoy, and I agree that the objection is wrong —I think I should say one word on consultation. I do not think that the Scottish Law Society was consulted specifically on Clause 10. As Lord Hoy has now returned, may I say I was dealing with his point about the Scottish consultation. I do not think that the Scottish Law Society was specifically consulted on Clause 10 although earlier I was saying that the noble Lord, Lord Hoy, and I were entirely in agreement on the merits of Clause 10.

It was asked about Clauses 11 and 12, and it is not true that legal opinion in Scotland has had Clause 10 sprung on it altogether. There were approaches to the Scottish Law Commission to inform the members that we were proposing to legislate in this way and they took a neutral position because they were engaged, and still are engaged, on a much wider study on the guardianship of children in Scotland. They did not seek to put a view one way or the other, but it was disclosed to the Scottish Law Commission what we proposed to do. In my view, among the various shifts in legal position that we have made in this Bill between husband and wife in relation to their children's upbringing and property, we have at least taken this step forward, that it will no longer be the wife alone who has to go to court to challenge what the father chooses to say about the upbringing and property of the child. She will have equal say in the first place and it may be that the father will have to challenge her instead. What the result will be I do not know. The Government do not wish to encourage litigation on this matter; they believe that it would be unusual.

However, when looking at the point about the husband inevitably having to pay for the whole costs, which was another question raised by the Law Society in Scotland, where the wife qualifies financially, the legal aid scheme in Scotland would enable her to be aided in a case of this sort, quite apart from the earnings and financial situation of her husband, so the whole burden will not necessarily be put on to the husband's finances whatever the background situation. It is not quite what I told the House before; it is a little more encouraging.

I think there are overwhelming reasons why we should provide a remedy in the courts in Scotland for the cases that fall to be litigated. I have always been told—although I have never practised in Scotland—first that the Scots only go to law at the very last resort, and secondly that before it comes to that stage they are extremely well advised. I am told by my noble friend Lord Polwarth and his advisers that so far as the Government can see no contingencies are likely to arise out of Clause 10 which it will not ordinarily be possible to resolve by the good sense and advice of the legal profession in Scotland, and that we shall not have spates of litigation with immensely complicated documents requiring signatures; that there is a very simple solution to almost any theoretical question that can arise. Therefore in the end I hope it will be considered to be a beneficial change in Scotland that is not accompanied by any devastating difficulties of a technocal or legal nature. With those words, I commend the Bill to the House for the last time, and once again I extend my thanks to those who have helped it on its way.

Moved, That the Bill do now pass.—(Viscount Colville of Culross.)


My Lords, it would be less than courteous of me if I were not to rise to thank the noble Viscount, Lord Colville, for all the trouble he has taken with this Bill, certainly with this part affecting Scotland. I apologise for being out of the Chamber for two minutes, but it is four hours since I entered it and I felt I might go out for a short while, but business moved rather rapidly.

I drew this matter to the attention of the Scottish Law Society; they knew that the Second Reading was taking place and that we were discussing it here. Since then I have heard nothing from them. I can only take it that what we have been doing in your Lordships' House must at least have met with their approval because otherwise I am sure I should have heard from that Society. It was quite right to say that I do not dissent from the principle of the Bill, whatever else might flow from it. It is not true to say that the Scots are lax in going to court; they are a little canny with their cash; they will not waste it in the law courts if the matter can be settled out of court. Indeed, if we can follow that practice in this particular Bill then we shall be grateful to the noble Viscount for what he has done to help us in this respect.

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