HL Deb 20 February 1973 vol 339 cc19-48

3.26 p.m.


My Lords, the main purpose of the Guardianship Bill is to carry a stage further the Government's implementation of the recommendations made in the Conservative Party's report, Fair Shares for the Fair Sex. We have done a good deal already, and this is yet another stage in the process. This time we are providing for equality between husband and wife in the matter of the guardianship of their children. I am bound to say that if one looks at the terms of the Bill—and I am not unduly content with the immediate appearance of, for instance, Clause 2(1)—they look a little indigestible, but I hope that I can convince your Lordships that the Bill is good wholesome fare. I would also point out that there are no less than three Keeling Schedules at the end, which iron out a good deal of the textual difficulties which would otherwise arise; and this follows an admirable precedent that we have had for some time.

Perhaps it is worth while going back into history for a moment, in order to get the context of the Bill. At common law, a father had the custody of his legitimate children and the rights and powers that flowed from custody, such as the right to determine religious upbringing—which was a tremendous source of controversy in the last century, at least—or to appoint a guardian to act if he should die. Certainly this was so in England and I think the same applied in Scotland as well. In 1886, Parliament intervened to improve the mother's position. The Guardianship of Infants Act of that year, which was a United Kingdom measure and took in Scotland, too, provided for the mother to be a guardian on the father's death and also enabled her to apply to the court for custody, requiring the court to consider the conduct and wishes of the parents and the welfare of the child. But despite this reference to the child's welfare, it appears that at that time the courts tended to require the mother to establish some sort of misconduct on the part of the father in order to justify depriving him of custody.

In 1922 and 1923, when women were first elected to another place, a number of Bills were introduced which would have made the mother and father joint guardians of their children—I stress "joint" as opposed to "equal". These were referred to Joint Committees of both Houses and nobody succeeded in agreeing about anything. In 1924, a Bill was given a Second Reading in another place, despite the doubts of the Labour Government of that day about a requirement for the consent of two persons to all parental decisions—because that is the effect of a joint responsibility. After negotiations with the Promoters, the Government introduced their own Bill which provided for the equality of the mother and father in court proceedings, where the welfare of the child was to be the first and paramount consideration. It enabled proceedings to be brought in magistrates' courts and allowed the mother to be awarded maintenance as well as custody. But before the Bill could get through the Government fell and the Bill was then re-introduced by the Conservatives and became the Guardianship of Infants Act 1925 which is really the basic legislation from which most of what we shall be talking about stems.

This compromise did not satisfy the women's organisations at this time. It was not long before their demands for equality were renewed. It is perhaps surprising that it has taken nearly fifty years to get this reform. This is not for lack of trying, as the noble Baroness, Lady Phillips, might be suggesting. There was a Private Member's Bill introduced in 1965 by the honourable Member for Plymouth (Devonport) in another place. It got through the Standing Committee, but no further. Then we had the Conservative Party Committee under Mr. Anthony Cripps, of which my colleague the other Minister of State for the Home Office was a member. That recommended that both parents should be given equal rights of guardianship.

I mentioned just now the difficulties which were seen in the 1920s about the earlier proposal for joint guardianship; and there would be practical difficulties if day-to-day matters, perhaps something like an urgent operation, required the consent of both parents one of whom might not be readily available. It was for this reason that the Cripps Committee recommended what they called the "simple solution" of giving both parents equal rights so that either parent could take the decision. That is what Clause 1 of the Bill provides in relation to England and Wales and Clause 10 in relation to Scotland; and since the pattern of this Bill is followed very closely in England and Wales and in Scotland, perhaps I may be forgiven if I did not cross reference at every stage because the provisions are similar to each other although they have to be drafted differently.

What is to happen when the parents disagree? Where the parents are separated, it is possible under the existing law for either of them to apply for custody and the parent having custody is entitled to take decisions. But the new situation we envisage is one where there is a strong disagreement between the parents who are living together and one of them wishes to put the matter before a court. I do not suggest that this is likely to become a common situation, but it is one, I think, for which the law ought to provide. This is done in subsections (3) to (5) of Clause 1 and the equivalent Scottish provisions. Section 1 of the Guardianship of Minors Act 1971, which is the consolidation measure, which took most of the previous law into it, will apply to these proceedings so that the first and paramount consideration will be the child's welfare, as has been said in Statutes over time. The Court is prevented (this is subsection (4)) from making an order for custody and access, because this would not be appropriate if the parents were living together. As I have said, if the parents are separated, a custody application may be made under the existing law. Therefore, the first thing to realise in this Bill is that Clause 1 (and Clause 10 for Scotland) deals with a situation where the parents are living together and not where they are separated, where other provisions in the law already deal with it. Different matters apply to some of the other clauses in the Bill. If noble Lords have not absorbed this point, I apologise; but I agree that it is not immediately apparent.

Where the joint consent of both parents is already required by law, such as consent to marriage—that is in England only, because it is not required in Scotland—or adoption, I think in both countries, then, under subsection (7) of Clause 1 there is no change. The consent of both the mother and the father will still be necessary. These are not decisions which have to be taken at an hour's notice and one can get the consent of both parents, or can do something about it, if that cannot be done. This is the prime distinction I want to make. Clauses 1 and 10 deal with parents living together. This is a new situation with which the courts previously have not been given adequate power to deal. Clauses 2 to 9, and the equivalent provisions in Scotland, deal with rather a different situation and are tidying up provisions which make some amendments but which deal with the basic situation where the parents are separated and where we want to give the courts better powers to deal with the situation where that occurs.

First, equal rights should be matched by equal liabilities. Parliament has not been slow to grant equality to the sexes in this respect, and the Statutes which place on parents the liability to maintain their children, to see that they are educated, and which require them not to ill-treat or neglect them, already apply to mother and father alike. But the existing guardianship law, in the case of separation, while it enables the court to order the father to pay maintenance to the mother if she is given custody does not contain a provision the other way round. So one of the consequential amendments made to the 1971 Act (which is part of this awful Clause 2(1) and which is picked up in Schedule 2(1)) enable the court to give custody to the father and to order the mother to pay maintenance to him.

The Bill recognises at long last that the law should be based on the equal responsibilities of husband and wife in relation to their children and not on an assumption which, if valid in the Middle Ages or since, has long been become outdated. We all know that in practice the bringing up of children is a joint responsibility between husband and wife. Perhaps for this reason the practical effects of the Bill may not be unduly great. I do not think that there will be a rush to the courts to ask them to settle differences under Clause 1(3) or the Scottish provision.

Where a woman's husband has left her with the children and will not pay her maintenance voluntarily or by agreement it will still be necessary for her to bring proceedings in the courts. This is where we get to the separation point. So, if there is a dispute about custody or if the woman wishes to obtain an order giving her sole custody against the possibility of her husband returning and seeking to exercise his equal part of the parental rights, the courts will have to deal with it. But if the wife has no reason to fear the father's interference the Bill will entitle her, without the necessity of obtaining an order from the court, to take decisions herself about the upbringing of her children. This is where Clauses 1 and 10 really bite: where they are still living together and there may be disagreement between them.

Clause 2 (in the case of Scotland Clause 11) extends the powers of the court in guardianship proceedings where the parties are separated. Clause 2 enables the court, for instance, when adjourning a case for seven days or more, to make interim orders for custody and maintenance; it gives the court power when making an order for custody to order that the child shall be under the supervision of a local authority or a probation officer. In Scotland, the two services are combined. It also enables the court, in exceptional circumstances, to commit the child to the care of the local authority. These are powers which the courts really have in matrimonial proceedings and the Magistrates' Association have been pressing for their extension to guardianship proceedings. The reason is this. The great majority of applications to magistrates' courts under the Guardianship of Minors Act and the predecessors of that consolidation Act are brought in circumstances where the marriage has broken down. In those cases, the wife can apply to the court under the Matrimonial Proceedings (Magistrates Courts) Act 1960 for maintenance for herself, for the custody of her children and maintenance for them. But if she prefers to do so, she may apply under the Guardianship of Minors Acts for the custody of the children and maintenance for them. She cannot get maintenance for herself under that Act; but this disadvantage very often is more theoretical than real. If the sum which she is likely to get by way of maintenance for her children is as much as it is feasible for her husband to pay altogether for the whole of the family, there is no real advantage for her to proceed under the 1960 Act, the Matrimonial Proceedings Act, in the magistrates' court. She may prefer to go under the guardianship proceedings, particularly as she does not then have to show that her husband has committed a matrimonial offence, desertion or adultery, or has wilfully failed to maintain her.

Whether or not that is right in theory, it certainly happens in practice, because what really happens is that a good many cases are brought under the Guardianship of Minors Act rather than under the Matrimonial Proceedings Act in the magistrates' court; and in some cases a summons is taken out, in the alternative, under both Acts. So what we are really trying to do in this Part of this Bill, both in England and in Scotland, is to assimilate the powers that the courts have under whichever of the two sets of proceedings the woman or the husband chooses to go to the court. That is really what Clauses 2 to 5 do; and they are extraordinarily similar—and I hope exceptions to this will not be found—to the machinery and the remedies which are already available to the courts under the 1960 Act, where you have to go, not on the basis of the marriage having broken down but on the basis of a matrimonial offence. There is also provision in Clause 6, which is like one in the 1960 Act, for the court to obtain a social inquiry report from the probation officer or from the local authority before coming to a decision. So, again, that is assimilation. Then we have various technical matters about getting it in notwithstanding rules against hearsay, and all that sort of thing, in Clause 6(3).

Clause 7 is slightly the odd man out. It arose, I am sorry to say, from something that the Joint Consolidation Committee did when we were looking at the 1971 Bill, which is now the Act. There is a section in that Act which says: Every guardian under this Act shall have all the powers over the estate and person or over the estate (as the case may be) of a minor as any guardian appointed by will or otherwise has under the Tenures Abolition Act 1660 or otherwise". I happened to be chairman of that Committee at that time, and I think I was only reflecting the views of everybody else there when I said that this was not altogether very explicit and that to rely on the Act of 1660, which had something to do with the abolition of ancient feudal customs, and to set up rights which went back to the law of sockage, was not something which was immediately relevant to the 20th century. So we were rather critical about it. It was a form of feudal tenure which certainly did not happen in Scotland, so far as I know. My right honourable friend the Lord Chancellor said that we would do something about it when we had the chance, so we have attempted to redescribe what is left of the rights under the 1660 Act "or otherwise"; and it appears that, so far as we can make out, they really are only a matter of looking to see whether a guardian has the power to give a receipt for goods which are handed over to a minor, and small matters of property of that sort.

My Lords, Part II is the Scottish section. I have already said that this is very similar to what is provided for in England. Clause 10 deals with the equal rights of the husband and wife, and it amends the long-established practice under the Scottish common law whereby the father is the sole tutor of his pupil child or curator of a minor child. A girl is a pupil until she is 12 and a boy is a pupil until he is 14, after which they are minors and, instead of a tutor, the parent becomes a curator. Quite what happens in all the circumstances between 16 and 18 I have not altogether fathomed, and if noble Lords want to ask about this point I shall make certain that my noble friend Lord Polwarth is here at Committee stage. But he is not here to-day, so I must do my best.


My Lords, I do not want to interrupt the noble Viscount, but this is not an unimportant point, and even if the noble Lord, Lord Polwarth, is not here I am certain that the advisers from the Scottish Office are here, or ought to be, to explain it.


My Lords, they will, if there are points of detail under it. I take what the noble Lord, Lord Hoy, says, but the point about it is this—I am sorry if I was being slightly jocular; I did not mean to be. The Bill does not affect the legal concepts of tutory in relation to pupil children or curatory in relation to minor children; that is the point. It does not do anything to either of them. What it does, however, is to provide for the mother to be able to hold the office of either tutor or curator as the case may be, alongside the father, and to exercise her rights separately from him. So it does not change any of these well-established Scottish concepts, but gives both the parents equal rights, which the father previously had alone.

I do not think I need go over the history of the special provisions for equal rights in relation to Scotland, because this tends to have been dealt with on a United Kingdom basis throughout the course of legislation. As in Part I of the Bill, we have arrangements for bringing parental disagreement to the courts for adjudication, and other ancillary provisions, contained in Clause 10, which are very much like those in Clause 1; and by establishing equality of parental rights in relation to Scotland, we are recognising that in that country, as South of the Border nowadays, the attitudes to the position of women as equal partners in marriage apply to no less an extent and should be accommodated in dealing with the family law.

Clauses 11 to 13 confer on the Scottish courts hearing applications relating to the custody of children, powers to make supervision orders, to commit to local authority care and to obtain social inquiry reports, in very much the same way as I have described for England and Wales. But these are concerned with where there has been a dispute and where the parents are not living together, whereas Clause 10 applies where they are living together. In fact, these powers again are readily available to the courts in Scotland in matrimonial proceedings. The creation of equivalent powers under Part II of the Bill will achieve what I hope those who are familiar with the law of Scotland will accept as a desirable situation, whereby, for instance, the caring resources of a local authority can be brought to bear in exceptional circumstances where the welfare of a child, as the subject of a custody dispute, requires it. In these matters it is the needs of the child we have in mind, and these needs may be the same, whether or not the breakdown of his parents' marriage is recognised in any legal sense. I therefore think it is right to have it under the guardianship as well as the matrimonial side.

I do not think that I need go into the Schedules. Schedule 1 is merely a restatement of a part of the Sexual Offences Act which again provides for equality. Schedule 2 deals with amendments, which are again set out in Part II of the Schedule, in the Keeling Schedule. Schedule 3 is concerned with repeals; Schedule 4 does the same job as the Keeling Schedule on various other Acts; and there are some consequential amendments relating to Scotland which I think all flow very well from the text.


My Lords, I wonder whether the noble Viscount will permit me to ask a question which I am afraid arises mainly on Clause 1 and which probably comes from my own ignorance. Does the definition of "parent" include, for example, a stepmother who has brought a child up from infancy, or is she excluded from any opportunity of guardianship at all? It seemed to me that she was excluded.


I do not think so, my Lords. I do not know that she would have this power on her own, but if any dispute arose, the powers under this Bill, for England and indeed for Scotland, enable the courts to give other people the custody or the guardianship, even if it is not a direct parent. So, as I understand it, foster parents, step-parents or other people would not be excluded from the workings of this Bill.


But she is excluded from the procedure under Clause 1?


That is probably so, yes; but that does not prevent her from using the other machinery, and it is geared pretty flexibly so that other people, if they are thought to be the right person, may come into the powers under the Bill. I think it unlikely that this sort of problem would arise. I am grateful to the noble Lord, Lord Hale, for what he said, and if there is a point here I will look at it. Perhaps I could sum up by saying that the Bill has two objects. The first is to remove from the law the outdated assumption that it is the husband who takes the decisions about the children, and instead to base it on the concept of marriage as a joint venture. The second is to ensure that when, unhappily, that joint venture breaks down and it becomes the duty of the court to take what steps it can to look after the welfare of the child, the court should have all the necessary powers in guardianship proceedings as I believe it already has in a number of other branches of the law where it has to consider a situation of this sort. Therefore there are two separate sides to it. My Lords, I commend the Bill to the House and I hope that with that introduction it will be welcomed and given a Second Reading. I beg to move.

Moved, That the Bill be now read 2ª.—(Viscount Colville of Culross.)

3.50 p.m.


My Lords, I am sure that noble Lords on both sides of the House would wish to give this Bill a speedy passage. We are all most grateful to the noble Viscount, Lord Colville of Culross, for giving us an historical survey and also for explaining the Bill in such a lucid manner. I think he recognised that the Bill needed an explanation. It is amazing how in Acts of Parliament very simple matters may be wrapped up in such complicated language. This the noble Viscount recognised particularly in respect of Clause 2(1). He emphasised at the beginning of his speech that the Bill had arisen from a Report from the Conservative Party Central Office entitled Fair Shares for the Fair Sex; but, in order that there may be fair shares for all, I am sure that he will not mind my mentioning that this matter has also been advocated in a document entitled Discrimination against Women, which emanated from the Labour Party and was drawn up by Labour women.

My Lords, I agree with the principles of the Bill and with its main provisions, although there are a few questions which I should like to ask. As the noble Viscount said, this Bill puts right an anomaly and an injustice in that it now gives equal rights to both parents in respect of the guardianship of their children. Up to now the father has been regarded as the head of the family and as having an over-riding right to decide the many issues relating to the upbringing of children. But this Bill gives both parents equal rights. What I think most important is that not only does the Bill give equal rights to the mother but also it gives her equal responsibilities. Not only will a mother now having equal rights in respect of the upbringing, custody, administration of property, et cetera, but also her responsibilities are recognised as being equal in that she may be required to pay maintenance should the father obtain the custody of the child. I believe that in this Bill the full implications of sex equality are realised. Only when that is done can women withstand the criticism that their liberation means privileges at the expense of men. I hope that the Bill will help to overcome the criticism that women want equal rights without responsibility.

I wish to ask a few questions that, although not on the legal aspects of the Bill, the noble Viscount may be able to answer. My noble friend Lord Hale referred to the question of stepmothers. I should like to ask about illegitimate children. The provisions of this Bill apply only to legitimate children. Under the 1971 Act the father of an illegitimate child may apply for, and be granted, the custody of his child. If he has the custody, he has the right to appoint a guardian for the child in the event of his death. Under this Bill, however, none of the Amendments to the 1971 Act applies to a minor who is illegitimate. That means that when the natural father does not have the custody of the child he has no right or authority over his child. I grant that in some cases this may be quite reasonable because the father may contribute little or nothing and show no interest in the child. But I think a different situation exists where a natural father visits his child frequently or contributes a reasonable amount towards its upbringing or even, as occurs in so many cases, where the parents have a common law marriage. I do not believe it is right in such cases that the father should have no rights whatsoever in respect of the child. It may be difficult within the context of the Bill to produce an Amendment designed to differentiate between the father of an illegitimate child who hardly ever sees his child and pays nothing towards its upkeep, and one who may be living with the family and with the mother.

My Lords, I wish to refer to a point regarding interim orders. That matter was not raised by the noble Viscount. The Bill gives the court power to make an interim order. I believe that the provision for interim orders in respect of cases coming before the courts is of great advantage. In too many instances custody proceedings drag on and on, with increasing acrimony between the parents which affects the happiness and stability of the child. While, of course, they are not a complete answer, the making of interim orders will improve the situation. I think that we must do everything possible to speed up the proceedings in custody cases because the making of an interim order still leaves everyone in a state of rather unhappy suspense.

I wish to raise a point about reports for custody orders. The Bill indicates the possibility of the presentation of reports from local authorities, at the discretion of the court. Sometimes magistrates are not aware that they may ask for these reports from local authorities. I believe that there is a case for requiring such reports in all cases which come before the courts, and that the report should be compiled as a matter of course before each case comes before the magistrates.

The next matter to which I pass does not appear in the Bill but I should like to ask about the position concerning passports and taking children out of the country. Is that altered in any way by the provisions in the Bill? In many cases there is still difficulty about a mother taking her child out of the country if the child is included on the father's passport. This is a difficult problem. I should like a little more clarification about it, and also about whether in future this matter will come within the terms of Clause 1(7) of the Bill. Allied to this question there is, I think, a much wider question; namely, what progress is being made internationally, or at least among the E.E.C. countries, regarding the mutual recognition of the validity of court orders with respect to minors? We all know from a recent case what may happen because one country does not recognise the validity of a court order made in another country. I think that in regard to this matter the Government should press for some action by the E.E.C. countries.

My Lords, the noble Viscount referred to supervision and care orders. In this respect may I make a suggestion. This Bill gives power to the court to order a minor under the age of 16 to be placed under the supervision of a local authority or a probation officer. Also, the court is enabled to commit a minor under 16 to the care of the local authority in appropriate proceedings before a court. I believe it to be absolutely vital—I feel very strongly about this—that in respect of all minors under 16 where supervision is necessary there should be supervision by the Social Services Department of the local authority and not by the probation officer.

I make that suggestion for various reasons. First, because it is in line with the Report of the Seebohm Committee. Secondly, it is in line with the Children and Young Persons Act 1969, which said that all children under 14 who appear before the court and require supervision should be under the supervision of the local authority and not the Probation Service. I know it is true that the Government have not yet implemented that part of the 1969 Act, but I should like to quote from a speech made by a Minister at the Home Office, Mr. Mark Carlisle, in addressing the Association of Children's Officers on October 1, 1970. He put the case that I am making very well indeed. He said: I now turn to the position of the Probation and Aftercare Service. When the prosecution age is raised to 12 the Home Secretary intends to make an order which will have the effect that responsibility for supervising a child who is placed under supervision by a court when under the age of 12 will normally fall to the local authority and not the Probation Service. In the Parliamentary discussions last year my colleagues and I paid tribute to the work of the Probation Service with children of all ages. But I am also very conscious of the increasing burden which this Service is assuming in respect of adult offenders. All the indications are that this burden will increase. For this reason, I think it right that the Government should plan in due course to make use of the power in the 1969 Act to raise the dividing age to the fourteenth birthday, so that the supervision of most children under 14 and the provision of pre-trial inquiry reports from the courts on such children will be progressively handed over to the local authority. That is what Mr. Carlisle said at that time, and presumably it is still the view of the Government.

The reason why I should like the local authority to undertake this work is that the local authority have greater resources than the probation departments. The social service departments of the local authority have links with education and the schools. I remember that during the passage of the Local Government Bill I made the suggestion that in the metropolitan counties education should be the responsibility of the council, not the district, and the Government, in answering my proposed Amendment, said it was essential that for dealing with children, in particular, the same authority which dealt with education should also deal with the social services. Surely that is applicable here.

My Lords, I have great admiration for the Probation Service. Like many other services, it is overworked and, as Mr. Carlisle said, more responsibilities are being put upon it. But in England and Wales the probation officer serves the courts. Those who have seen at close quarters the work of the Probation Service know that that work is not confined to offenders; but I am afraid that in the minds of the general public the probation officer is associated with somebody being on probation; it is associated with offenders. Of course, if later the child has to go into care, it is to the care of the local authority. My noble friend Lord Hoy will be speaking later about the Scottish section; but in this respect Scotland is well in advance of England and Wales, because the Probation Service in Scotland is part of the social services of the local authority and is not a separate service serving the courts.

Mention is made in the Bill—and the noble Viscount referred to it, too—that maintenance grants would now perhaps have to be paid by the mother as well as the father. Maybe this Bill is not the appropriate place to make amendments about the payment of maintenance allowances, but the noble Viscount knows that the extraction of maintenance allowances is very difficult indeed, and I am wondering whether the Minister can give any hope that some new method will be evolved so that a parent can get a maintenance allowance without the unhappy position that we have at the present time. We all know what happens if the father defaults; and now, under this Bill, the mother can default, as well as the father. I am wondering whether or not the Supplementary Benefits Corn-mission could be responsible for taking defaulters to court rather than the aggrieved person.

As I said at the beginning, I welcome this Bill. I hope that the points I have raised will not be regarded as criticisms but as helpful suggestions, and we can probably come back to some of these matters during the Committee stage of the Bill. I support the Bill and hope that it will get an unopposed Second Reading.

4.6 p.m.


My Lords, I have waited 24 years for this Bill. In February, 1949, after the war, some of the women in politics on the Conservative side, under the chairmanship of our late colleague Lord McCorquodale, set up a committee to inquire into the disadvantages that women were still suffering at that time. I think that the magnificent contribution which women made during the war, when they had to substitute for men at short notice, inspired us in our task. The matter of domicile, now I hope passing through another place; of equal pay, which has been conceded, and of the guardianship of infants were among the recommendations in our booklet. Two members of that committee are sitting in this House; namely, the noble Baronesses, Viscountess Davidson and Lady Tweedsmuir, and I had the pleasure of being the vice-chairman. The noble Baroness, Lady Bacon, told us that the Labour Party equally on their side had written a booklet: I have mine here. Subsequently we had the Cripps Committee. So it has not been for want of trying by the women on both sides: we have always seen eye to eye about these problems. I believe the noble Lord, Lord Chorley, brought in a Bill in this House which was unsuccessful, though we appreciated his effort; and Joan Vickers has twice tried to get a Bill through another place without success. I took a powerful delegation to see a Home Secretary (who at the moment is absent from this House) and put our case, but I am afraid at that time without success.

My Lords, it always seemed odd to me that the mother of an illegitimate child was automatically considered to be the child's guardian, whereas what might be described as a legitimate mother was not considered fit to be so except by going to court. Now we have this dear little Bill which I hope will put all these matters right. I am sure that my first committee in February, 1949, exactly 24 years ago, the one mentioned by the noble Baroness, Lady Bacon, and the Cripps Committee have gathered so much momentum that they will howl over the Home Office and whatever Home Secretary may be there at the time. It is said that the greatest pleasure in life is anticipation. All I can say is that I have not been aware of this pleasure during the last 24 years; and the delight of the realisation at last by this Bill of one of the objects for which we have worked has far surpassed any possible pleasure in anticipation, of which I was not aware.

4.9 p.m.


My Lords, I should like to intervene quite shortly in this debate. I have always felt astonished at the gross impertinence of members of my sex who feel that they have the least claim in the world to be treated in any preferential sense as against the sex to which the two noble Baronesses who have spoken before me belong. I share passionately, and have always shared, the desire that both sexes should be precisely on the same footing. I am delighted with this Bill, which takes a step in that direction. I declare with pride and pleasure that not only do I belong to the Labour Party which was responsible for the publication to which my noble friend Lady Bacon referred, but Mr. Anthony Cripps was a member of my Chambers.

The noble Viscount, in introducing the Bill, described it as "indigestible". I spent a considerable portion of the weekend trying to take apart its various clauses and put them together again in order to make sure that I understood exactly how they operated. As I say, I am delighted with this Bill; but I wonder whether it would not be possible, in the course of the Committee stage, to make it a little more digestible than it is at the moment. I believe it is really rather difficult to understand. Much of the difficulty stems from the fact that one is dealing with, as it were, a dual jurisdiction: that which arises in this context from the fact that there is a matrimonial jurisdiction where a matrimonial offence has to be proved; and that which arises—which is the one we are precisely dealing with in this Bill—independently of that matrimonial jurisdiction. Those who prepared the Bill had, in a sense, to marry the two, if I am not using an inappropriate term in that context.

I suppose that when one looks at the Bill and at the all-important Clause 1, one is tempted to ask oneself: "What are the rights one is talking about?" They are, of course, many of them, centuries old. They depend partly on the common law; partly, I suppose, upon Statute, and partly also upon the jurisdiction of various courts over wards of court. So one is tempted to ask: what are the rights and what is their present form? If those questions are put, I greatly hope that the Minister will not answer them but, with his usual charm, will provide an excuse for not doing so. The reason why I say that is that views change considerably. Take, for instance, the right of chastisement. Most of us would probably think there is something repugnant in the idea of a father trying to administer physical punishment to, say, a young man of sixteen. In days gone by that might not have been the common view. But if one proceeds to investigate those matters, I should have thought that one might be making this sort of Bill almost impossible to pass.

This Bill makes a number of changes, as the result of the change in principle to which I have referred, in the consolidating Act of 1971. I very much hope therefore that much as, speaking for myself, I should like to investigate further what the rights are, one should bear clearly in mind the urgent necessity to make it possible for Governments of any complexion to put a Bill of this kind on the Statute Book—a Bill which deals with particular aspects of matters, the general view of which may change from decade to decade, and which is of a type that produces very great improvement in our legislative system. Therefore I do not ask the noble Viscount the sorts of questions I should like to ask him. If I did so, I would hope that he would slap me down very firmly and avoid being drawn into a discussion.

When I said that I found it somewhat difficult to take apart and put together the clauses of the Bill, the kind of questions I had in mind were these: Are they the common law rights which are being preserved by Clause 1? Are they statutory rights? Or are they the rights of a court over a ward of court? In asking such questions, I am really relating them to the drafting, and I hope I am not trenching upon the prohibition that I have just ventured to offer as a desirable one in a Bill of this kind.

I will not trouble your Lordships with the history of the various sections of earlier Acts which preceded Clause 1 and which require to be examined if one is trying to answer the question: are these common law rights, statutory rights or the rights of a court over a ward that are being preserved—or what rights are they? I did my best to go back, though perhaps not quite to the 1925 Act, because that is repealed; but one certainly has to examine with great care the Family Law Reform Act 1969, which I tried to do, and also the Guardianship of Minors Act 1971, together with this Act. One finds included in those Acts a number of sections which form part of a pattern, and the result of which I personally find not very easy to detail. During the Committee stage of this Bill I shall certainly, if I can discover them, seek to put forward proposals which might possibly introduce clarity where at the moment, to me at any rate, there seems to be unnecessary obscurity. Perhaps the noble Viscount will be able to give some thought to the matter between now and the Committee stage of the Bill.

Obviously, in a complex Bill of this kind there are a large number of points of a Committee-stage type about which one would like to ask and I will not ask such questions now. The only point of principle that I should like to deal with has already been dealt with to a large extent by my noble friend Lady Bacon. That concerns the position of illegitimate children. Again, it would be entirely outside the scope of this Bill to ask whether the time has not arrived when the putative father could formally recognise his illegitimate child. I should like to see that happen, but this is not the Bill for a proposal of that kind. That is a far-reaching proposal, needing great care and consideration, and I would not suggest that we should consider that in the context of this Bill. However, I wonder whether the Minister might not he able to say that he could reconsider this aspect of the Bill?

Under the terms of the Bill, if one reads it together with the 1971 consolidating Act, it still is the case that payments by a putative father in relation to an illegitimate child depend upon affiliation proceedings and orders made in affiliation proceedings. The view of society as to the status of an illegitimate child has changed very greatly in recent years, and I believe that everybody would feel that this was a step in the right direction. It is not regarded as a stigma to be illegitimate—and anyhow the unfortunate child, should there be a stigma, is in no sense responsible for it. It is immensely important, I should have thought, that if a child has been born under that slight disadvantage—and I hope I am right in saying that it is no more than a slight disadvantage—of illegitimacy, he should not have to grow up and read these pejorative terms about affiliation proceedings, and similar matters relating to him. There is something so gross and ugly about terms of that sort, and they must be wounding to persons of a sensitive spirit who grow up and read them. I would hope that some way could be found, in the case of illegitimate children, for arranging for maintenance payments without recourse to the ignominious affiliation proceedings which I suppose we so constantly associate in our minds with the kind of Victorian language about "getting a girl into trouble". That is the sort of language we should put away from us, and we should also try to put away the opprobrium and ignominy which in past years has attached to that sort of situation. That is the second proposal I should like to make to the noble Viscount in the hope that he might be able to give some thought to it between now and Committee. I agree that it is not easy, but I should have thought it was just within the scope of this Bill, and that it would be practical and possible to concoct measures for a change of that sort if the appropriate language and machinery can be devised.

Now, my Lords, I have some individual points to raise. Why, under Clause 2, must a supervision order come to an end when the minor reaches the age of 16, whereas an order for care can go on until the minor is 18? Why is the procedure regarding the reading out of statements so formally, elaborately and rather frighteningly set out? Have difficulties arisen? I quite understand that the object of the clause is to make material contained in a statement admissible in evidence when otherwise it would not be admissible. That is something which we would all think necessary and to be approved. But there seems something very formal about the elaborate machinery of the clause. Have difficulties arisen?

Apart from those matters I have nothing to add, except that I cordially reecho the wish expressed by my noble friend from the Front Bench that this Bill should get on to the Statute Book as soon as possible. I hope that in due course, at not too late a date from now, it will be found possible to consolidate this Bill with the 1971 Act so that in a consolidation Act one may have a compendium of the law relating to guardianship.

4.21 p.m.


My Lords, I owe a two-fold apology to your Lordships. First, I could not be here for the commencement of the debate; and secondly, I had not put my name down to speak. The noble Lord, Lord Hoy, has very kindly given way. I intervene only because for many years I sat as a judge in family jurisdiction. I should like to add my words of welcome to the Bill, though I should like to express two doubts about it—one of which merely echoes what has already been said by the noble Baroness from the Front Bench of the Opposition Party.

I welcome very much the main provisions of the Bill. It gives equality of parental rights; it enables disputes about children to be submitted to the courts without the necessity of the separation of the parents, or all the rigmarole of ward-ship proceedings. It is very much a flatter for consideration whether with this lead we should also consider maintenance disputes between spouses being submissible in that way. The third great advantage is unlikely to be used very much, but ought to be available in reserve. It is the matter to which the noble and learned Lord, Lord Stow Hill, referred; namely, the power of courts to make orders for supervision and custody in respect of local authorities. I doubt whether that power will be much used, except when the parents separate; but I think it ought to be available for use in the rare case.

The background to this Bill, as I see it, is that there is in the bearing and upbringing of children a necessary division of labour between men and women which we should accept, and not, as the noble Lord, Lord Stow Hill, suggested, try to put both sexes on the same footing. What we should do—and what this Bill does—is to see that the economic and other disadvantages which are inherent in that division of labour are mitigated so far as women are concerned. We have gone a long way to ensure that the economic proceeds of marriage are shared between spouses, but only after the marriage has broken up. It seems to me that we ought seriously to consider whether we have not put divorced wives in a much more favourable position—an unjustifiably favourable position, comparatively speaking—compared to a woman who stands by her marriage. I do not suggest that the progress, as I regard it, that has been made so far as divorced and separated wives are concerned should be withdrawn; but we ought to consider whether it should be extended to wives who maintain a state of cohabitation.

This Bill tackles a slightly different, albeit an analogous problem; namely, rights of custody, access, upbringing and so on, in the way that has been explained. I have only two doubts. The first one is the one to which the noble Baroness referred: whether in this Bill we could see that the rights of the father of an illegitimate child are improved. I understand the reasons why the draftsman has, as I gather, limited himself to dealing with legitimate children. I can see that there might be widespread repercussions on the general law of bastardy. But at the moment, with the improvement that we are making in this Bill, we are leaving an anomaly in the law still more glaring.

The only other point I have to raise—and it is a very serious doubt—concerns page 2, lines 5 and 6, of the Bill. Subsection (2) says: An agreement between a man and a woman for either of them to give up in whole or in part in relation to any child of theirs born or to be born, the rights and authority referred to in subsection (1) above shall be valid only if it forms part of an agreement made before and in contemplation of their marriage or of an agreement for their separation … There are strong reasons why parties in a separation agreement should be able to stipulate as to custody and access. It is in every way preferable that they should agree rather than have to take their disagreements to court. It seems inherently undesirable that the parties should stipulate before marriage that one or other should have exclusive custody or access. I apprehend that what the draftsman has in mind is the agreement that one sometimes has in mixed marriages as to the religious upbringing of the child. I can see why he should have wished to cover that case. On the other hand, by stipulating in the way that he has, it seems to me that he is writing any such agreement into the law as a rule of law. I think that is undesirable. It would be far better not to give any such agreement statutory recognition. Although given de facto recognition, the court, by the last words of that subsection, can disregard it, and I would have thought that they should be able to regard it with such weight as they think should attach to it. It seems to me undesirable in itself that that type of agreement which, though it may be very sensible, is inherently liable to be entered into and is sometimes regretted later, should be given the force of law.

4.30 p.m.


My Lords, I was delighted to give way to the noble and learned Lord, Lord Simon of Glaisdale, because he and I are old Parliamentary friends; indeed, I might go so far as to say very old personal friends. The points he raised will be for the noble Viscount to reply to, because, whatever the draftsmen express in this Bill, they must obviously be conveying the opinions of the Ministers concerned. Whether it means that parties in a separation agreement are to be included, or whatever differences there may be, I am certain that these provisions are in the Bill because the draftsmen have been instructed accordingly. I was interested, and am certain my noble friend Lady Bacon was, in the noble Lord's question with regard to wards of court. Speaking for myself, and I think for my noble friend, as we undersood it there was no application of this inside the Bill as it is drafted. Perhaps when the noble Viscount comes to reply he can explain whether this is so. At least that would clear our minds as well as dealing with the point raised by the noble and learned Lord, Lord Simon of Glaisdale.

It would be quite discourteous of me if I did not say "Thank you" to the noble Viscount for explaining the Scottish provisions of this Bill. When I had the temerity to interrupt for two or three seconds I was not attempting to make a complaint about the noble Lord, Lord Polwarth. I have since learnt that he had conveyed his apologies to my noble friend Lord Hughes for his absence yesterday when we were not meeting and, as we decided not to meet, for his absence when we were meeting, which was to-day. I was not attempting to be smart about it. I also appreciate the difficulties of the Scottish Office in covering all these debates and all these departments. But on the other hand, the very fact that we have a Secretary of State can simplify matters considerably, because, within the Secretary of State's ambit, he controls all departments.

One of the great troubles with our partners South of the Border is that when changes come to be made in legislation of this kind, or concerning the care of the young, there is always the difficulty of some Minister's having to give up some responsibility; he never wants to give it to one of his colleagues. In the Scottish Office the Secretary of State for Scotland is responsible for every one of them. When the point about the Probation Service in Scotland was raised I was grateful that my noble friend, Lady Bacon, pointed out the difference between Scottish and English law or practice in this respect. In Scotland, the Probation Service is not a servant of the court as such but part of the social service department. Its duty is rather wider. In this respect we are a little ahead of the South. For this we are indebted in no small measure to one of the colleagues of the noble and learned Lord, Lord Simon of Glaisdale, Lord Kilbrandon, because Lord Kilbrandon's Report made this possible. To that extent we are different—in the best possible way—and I can only hope that, when other reports are taken into consideration regarding the South, this change will be made.

The content of the Bill, as we see it, gives to the wife not very much, but equal power to that which has been given to the husband so far. That sums it up very shortly and sharply. That is the intention and that it what the Bill will do. To that extent, and indeed in every other way, we give our wholehearted support to it. We do not think that in this respect there is any great differentiation between Scottish law and law South of the Border. When we are taking measures of this kind it is good that we should make a law which is applicable to the country as a whole. So my noble friends, like all who have spoken in this debate, will certainly do nothing to prevent the passing, indeed the speedy passing, of this particular piece of legislation.

4.35 p.m.


My Lords, I have been asked many questions and I will try quickly to answer as many as I can. If noble Lords and Baronesses wish to take the others up on the Committee stage, of course we can discuss them more fully then. The noble Lord, Lord Hale, asked me about step-parents. The answer is that they do not have the rights under Clause 1. Adoptive parents would, but we think that step-parents are outside the proper range here, where it is a matter of choice, but that is the way the Bill is drafted at the moment. The noble Baroness, Lady Bacon, mentioned illegitimate children, as did the noble and learned Lord, Lord Simon of Glaisdale. We are in some difficulty about this matter. I have the greatest sympathy because, for ten years, I was President of the National Council for the Unmarried Mother and her Child, and if anybody is pushing at an open door when it comes to illegitimate children he is pushing at me.

One has to realise that the basis of Clause 1 and Clause 10 is that the parents are married and they are given equal rights because they are married. Ex hypothesi where it is an illegitimate child, they are not married, although I appreciate the point that they may be living together and it may be a stable union. One is going a substantial way beyond equal rights for husbands and wives when one starts contemplating equal rights for putative fathers as well as mothers of illegitimate children. It gets into the realm—this is a wide and difficult problem—of recognition or acknowledgment, possibly, on the Scandinavian system, for which we have no provision in the law at the moment; and it also gets into the very curious situation where I suppose one could have a man who had fathered children by a number of women and who was claiming to have rights in relation to those children over a number of different households. I do not want to be dramatic about this, but when one starts to think out the practicalities of giving the putative father equal rights with the real mother one is going to run into certain difficulties which could complicate this Bill very considerably. I have sympathy with this point, but am not sure that we can take it on board in this particular measure.


My Lords, I was merely wanting to point out that in the Guardianship of Minors Act 1971 the whole of Section 14 deals with illegitimate children and gives the father certain rights.


This is the point of the distinction I was trying to make. What is being complained about is the provision in Clause 1 and in Clause 10. That is where the parents are married. The provision in the Guardianship of Minors Act 1971 may take account, and usually does take account, of situations where the marriage is in trouble; and in that context it is right that provision should be made for guardianship cases to be disputed or claims made by fathers of illegitimate children. Similarly, in the midst of this Bill, where we are dealing with the same kind of proceedings, I see no reason why the fathers of illegitimate children should not come into it. Where one is dealing with equal rights inside marriage, then it is rather more difficult, and it is in Clause 1 and Clause 10 where we hit the trouble in this Bill.

A number of other questions were asked. The noble Baroness asked about interim orders and about supervision as between local authorities and the Probation Service. The noble Lord, Lord Hoy, and others recognised, as Clause 11 does, that this is not a distinction made in Scotland. The noble and learned Lord, Lord Stow Hill, asked about Clause 6(3) and the hearsay provisions. The answer to all these points is that we have simply tried to reproduce for guardianship proceedings what is the existing law in relation to matrimonial proceedings in the magistrates' courts. In the case of interim orders, if one looks at Section 6(1)(b) of the 1960 Act one finds it is just the same. In the case of probation it is Section 3 of the 1960 Act, and as long as we have this in England and Wales I think we must keep the guardianship and matrimonial causes machinery in the magistrates' courts on a similar footing. It does not follow that it will necessarily be the same, but so far as there is this distinction I think it should apply in both fields. As to hearsay, I may say to the noble and learned Lord, Lord Stow Hill, that that is dealt with in Section 4(4) of the 1960 Act, and here again we are simply repeating what has happened before.

The noble Baroness, Lady Bacon, asked whether there should be, as it were, compulsory reports—local authority reports. That is certainly something for which the courts should be encouraged to ask and there is no reason why they should not have them, but I do not think they should necessarily be made compulsory. In proceedings of this kind the parents may be in agreement as to whom custody should be given and there is no reason to doubt what they propose in the interests of the welfare of the child, so the local authority's report on that side of it may not be necessary. If the noble Baroness can think of particular types of cases where at the moment there are not welfare reports and where there should be, I shall be glad to think about the point again, but I am always hesitant, as I was when we were dealing with the Criminal Justice Bill last year, to make compulsory the reporting to courts, partly for staff reasons and partly because on some occasions where courts know perfectly well what the situation is and do not need to have it set out in a report it is a complete waste of time. I should need to be persuaded on the merits of the matter before going far along the compulsory road in that respect.

The question of passports is a complicated one. I have already asked my right honourable friend the Foreign and Commonwealth Secretary to look at this problem but I have not yet got to the bottom of the matter. I wonder whether I may take it back for the moment and see whether I can get a better answer later on. As for the reciprocal enforcement of agreements on the E.E.C. side, the current situation is that my noble and learned friend the Lord Chancellor raised this question at a meeting of the European Ministers of Justice last year, and it is being referred to the committee of the Council of Europe which considers judicial problems. The Government have also asked that the English and Scottish Law Commissions should consider the problem. It is difficult, but we are moving ahead on this issue and trying to get the agreement of other European Governments as well. As to the payment of maintenance, this question is really outside this Bill. Am I not right in thinking that it is one of the matters upon which the Finer Committee will be reporting? I strongly suspect so, and I think that it would complicate matters unduly if we went into this aspect. I thank my noble friend Lady Emmet very much for her welcome. I am sorry that it has taken such a very long time to bring this measure in, but it is marvellous to know that she supports it now it is here.

I take it that I indeed forestalled the noble and learned Lord, Lord Stow Hill, on the question of ease of legibility and the complexity of drafting. It is not easy, when one is assimilating this type of Statute law so as to bring it into line with a number of other Acts, to make it simple, but at any rate I hope that the Keeling Schedules help, because they cover at least the most important of the main amended sections of the old law. The noble and learned Lord asked about the rights, particularly those under Clause 1 and Clause 10. He is quite right in thinking that this Bill takes into account the Common Law rights and the statutory rights, which actually are very few, I have no doubt, in both England and Scotland, and these would be shared. I do not think he is right in suggesting that wardship comes into this matter, because supposing there had been wardship proceedings, these are entirely outside the scope of this Bill. Therefore it is probable that the Family Division would have superimposed some other obligations or rights which would have taken the place of some or all of the common law or statutory rights which exist otherwise. Those would override any rights that would otherwise be shared under Clause 1 and also under Clause 10, if indeed this sort of thing happens in Scotland.

It is very important to realise that this Bill does not impinge upon wardship proceedings at all. This is almost entirely a matter of the inherent equitable jurisdiction of the Family Division in this country, reinforced a little by Section 7 of the Family Law Reform Act 1969. None of that is affected by the Bill, except in so far as we are assimilating even some of that machinery, where it is appropriate, into the guardianship proceedings covered by this Bill. There is a little part of the 1969 Act which can be adopted to give all courts common powers when these matters come before them. Otherwise wardship is not affected.

The noble and learned Lord asked about affiliation proceedings. I suppose they are one better than bastardy Acts, but whether one can simply go on creating euphemisms which do not, in their turn, get tainted with some sort of opprobrious phraseology or meaning I do not know. I doubt whether it would be possible to do away with the process because, unpleasant though it may be, when sums of money have to be paid week by week by a man and he disputes that he is the father of the child it may well be a matter that has to be adjudicated upon. I am not at all certain that, apart from cases where the father admits parentage, I see at the moment how one can get away from some sort of judicial decision where there is a dispute. The noble and learned Lord also asked about the supervision orders ending at 16 and care orders at 18. The reason for this is that supervision orders in matrimonial cases do end at 16, but in the case of care orders the local authority may have to go on paying for education and other matters, and this again is in accordance with the general law relating to these matters.

Finally, the noble and learned Lord asked about consolidation. I think we have almost got beyond the stage of consolidation. We are doing an exercise in assimilation, as I have said several times, but whether one can put all these things together—not just guardianship—is another matter. We are trying to get into the realms of matrimonial causes in the county court and High Court. We are trying to get matrimonial proceedings in the magistrates' courts. We have guardianship and we have wardship proceedings. To what extent one can get a common code from all this legislation is one thing, but whether one could actually consolidate the whole works is another matter altogether. I am as keen on consolidation as the noble and learned Lord and I would certainly hasten on their way any good ideas in that direction.

The noble and learned Lord, Lord Simon of Glaisdale, was rather critical about part, at any rate, of Clause 1(2). The story that he gave was perfectly right, but he said that we should not have any statutory recognition of the agreement before the child was born. All that we have done is to reproduce Section 2 of the Custody of Infants Act 1873. It may have been more important then than it is now in respect of children who are anticipated by the couple about to get married but I wonder whether it is right to deny the possibility of these agreements being valid at all.


My Lords, is the noble Viscount quite right about that? It seems to me that Section 2 of the Custody of Infants Act only refers to the separation agreement and not to the pre-marital agreement.


My Lords, without ploughing through an absolute mountain of paper I am afraid I cannot deal with that point at the moment. I wonder whether I may leave it and take it up in the quiet of my room. It may be that the noble and learned Lord is right, but I think there is a provision somewhere in the existing law which deals with this matter. If I have given the wrong reference, I am sorry. At any rate, perhaps this is a Committee point which we may deal with later on.

The noble Lord, Lord Hoy, was generous, too, in his welcome to this Bill. One of the points that has impressed me when I have been reading my briefing material is the way that not only have we tried to bring the law of England and Scotland together but we have tried also, by various very difficult and technical pieces of drafting, to enable people who move about between the various parts of the British Isles (including Northern Ireland) to take advantage of the provisions of the law. Even if they start in Scotland and want to apply in England or in Northern Ireland they are not debarred. They can—and with a flexible society such as we have now it is important that they should—get these matters before the courts in the right place; and if they do not live there they can do so as a respondent when the matter comes up. We have attempted to cover this matter in the case of guardianship, as in other cases as well. I take the noble Lord's point about trying to get the law to work together in the various parts of the British Isles. I believe that we have gone a long way towards doing so. I thank noble Lords and noble Baronesses who have taken part in this debate. We may have an interesting Committee stage, but on Second Reading at any rate we have universal acclaim.

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