DOMESTIC PROCEEDINGS AND MAGISTRATES' COURTS BILL [H.L.]

HL Deb 14 February 1978 vol 388 cc1250-336

2.57 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 [Grounds of application for financial provision]:

Viscount HANWORTH moved Amendment No. 1A: Page 2, line 5, at end insert ("and there appears to be no likelihood of reconciliation in the near future".)

The noble Viscount said: First, may apologise for tabling the two Amendments which appear on the first page at the very last moment. This was due to circumstances not entirely within my control. Both these Amendments concern the grounds on which a magistrates' court can make orders with regard to financial provision for the parties to a marriage and children of the family. There are, in fact, four grounds. The first two can simply be stated as a failure to maintain of either the spouse or the children. The third one, with which my first Amendment is concerned, says: …has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; The fourth one is: …has deserted the applicant".

The third one, with which I am dealing in this Amendment, is a matrimonial offence. Finer and others have considered that, now we have got away from this in the High Court for divorce proceedings, there is no reason why we should have it in the magistrates' court. It is undesirable for a number of reasons. A behaviour claim, which is what this involves, inevitably leads to the airing of domestic quarrels in court. This, in turn, leads to bitterness, impedes conciliation or reconciliation, and can harm the children by jeopardising the achievement of satisfactory arrangements about access through the bitterness and hostility resulting from the recital of past incidents.

I propose, instead of the existing wording, to say simply: …and there appears to be no likelihood of reconciliation in the near future". One cannot, of course, say that the marriage has irrevocably broken down because the magistrates would be taking on a judgment which is reserved to the High Court in divorce proceedings. But my Amendment will to a great extent avoid dragging these domestic quarrels into court.

We have to consider, with this and the other Amendment which I shall move, that magistrates' courts and the High Court are not strictly alternatives. Many poorer people do not see their way even today to taking proceedings in the High Court. That being so, I do not think that we ought to have one set of rules for the rich and another for the poor. I see no reason why, in the magistrates' court, one should drag in a great deal more on behaviour than one would in claiming, or asking for, a divorce in the High Court. That really is the purpose of this Amendment. As I have only just put down these Amendments, whatever support I might get in the Committee today I would not press either of them. However, if the Committee feel there is something in what I say, I would reserve the right to put them down again in more or less the same form at Report stage. I beg to move.

Lord HARRIS of GREENWICH

This Amendment requires an applicant to a magistrates' court, whose application is based on the respondent's unreasonable behaviour, to establish also that there is no likelihood of reconciliation between the two parties in the near future. This, in effect, would require the court in this type of case, and this type of case alone, to establish that there is no likelihood of reconciliation before the court can grant an order. The Bill already provides, in Clause 22, that the court must consider whether there is any possibility of reconciliation before making, an order.

I think that this is the right way in which to deal with reconciliation and not to place the onus on an applicant to establish it as part of the ground for the order. There is no corresponding requirement in divorce law, and I think it would be wrong to deal with it in this way in magistrates' court proceedings. The present ground in paragraph (c) of Clause 1 in fact corresponds precisely with one of the grounds for a petition for divorce, and it would be somewhat anomalous if the applicant to the magistrates' court had to go further in this respect than the applicant for divorce.

Moreover, the Amendment applies only where the application is based on unreasonable conduct. A person applying for an order on grounds (a) or (b) in Clause 1, that is failure to provide reasonable maintenance, would not have to establish that there was no prospect of reconciliation, whilst an applicant seeking an order on the basis of unreasonable conduct would. This seems to us again to be an anomalous result. There is a further point which I should make on this Amendment, and I shall have to come back to it at a later stage because there is another Amendment which raises a similar issue.

The Amendment which has been proposed by the noble Viscount would require the court, in every case based on unreasonable conduct, to satisfy itself fully on the matter of reconciliation. This, in practice, would mean calling for a report from a probation officer in virtually every such case. As I indicated, I shall be referring to this again later when the issue is raised on another Amendment on Clause 22. All I must say at this stage is that the Probation Service in this country is already fully stretched, and it would be undesirable to call on these scarce resources in cases where the likelihood of reconciliation is remote. Therefore, on grounds of substance so far as the Amendment is concerned, and also in relation to the point about the resources of the Probation Service, I very much hope that the noble Viscount will not press this particular Amendment because, in our view, it would be undesirable to add this to the Bill.

Lord SOMERS

While realising the difficulties which the noble Lord has mentioned, may I ask whether he is going a little far in saying that a probation officer would have to be called in in each case? Is the magistrate incapable of judging for himself?

Lord HARRIS of GREENWICH

I think that the position is that the Amendment would require the court in every case based on unreasonable conduct to satisfy itself fully on this matter of reconciliation; in my view that would in virtually all such cases mean involving the Probation Service. I do not think there would be any way of avoiding that particular problem.

Viscount HANWORTH

I shall study what the Minister has said. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The CHAIRMAN of COMMITTEES

I should point out that, if Amendment No. 1 is agreed to, I cannot call Amendment No. 1B.

3.8 p.m.

Lord PONSONBY of SHULBREDE moved Amendment No. 1: Leave out lines 6 and 7.

The noble Lord said: I beg to move the Amendment standing in my name. The purpose of this Amendment is to remove desertion as a ground of application. My reason for asking that desertion be removed as a ground of application is that it comes within the ambit of unreasonble behaviour. The Law Commission report, at paragraph 2.9, says: On whether desertion should be retained as a separate ground opinion was more evenly divided. Those commentators who were opposed to the retention of desertion as a ground advanced a variety of reasons for their views. Some argued that desertion was simply a specific form of unreasonable behaviour which, like adultery, would already be covered by the general ground. Others contended that desertion was a highly technical offence, difficult to prove, and thus not appropriate to the magistrates' matrimonial jurisdiction". The report goes on to say: We do not think that a deserted wife for whom her husband is providing reasonable maintenance should be required to wait until that maintenance has ceased before making an application".

As the Law Commission said, desertion is a highly complicated legal concept on which there is a mass of case law. I am no lawyer, but it seems clear that where separation is consensual there is no desertion. The main reason why the Law Commission were moved to include this particular ground was enumerated in paragraph 2.7: Inclusion of desertion as a ground was proposed principally to deal with the situation where the parties are living apart but the husband is financially supporting the wife". The fact is that if the husband is financially supporting the wife at that particular time, then that is not desertion because it is consensual; the wife or husband being in receipt of maintenance means that there has been an agreement to live apart, and for that and the other reasons I have advanced I urge that this ground of application be deleted.

Baroness WOOTTON of ABINGER

I support my noble friend Lord Ponsonby primarily on a matter of principle which seems to run through the Bill on a number of issues; namely, that this word seems to maintain the principle of the matrimonial offence, something which has been removed from divorce law and which, in my view, should be removed from proceedings in magistrates' courts.

Viscount HANWORTH

I oppose the Amendment. I agree entirely, however, that desertion is a most unsatisfactory ground because of its legal complications, and the next Amendment which I shall move will propose to substitute "separation" for "desertion". If "desertion" were deleted and my Amendment were not accepted we could be faced with the situation where a couple separate and maintenance is still being paid, but the wife wants security and would therefore like to go to the court for a maintenance order, surely a reasonable thing to wish to do. In the circumstances, with only the other grounds left, she would find it hard to do that. She might be tempted to dredge up many of the difficulties that they have had together. Much the cleaner way would be, if they separate—and this is often done without much rancour—for the spouse to be able to obtain the relief and the maintenance simply on these grounds.

Lord LEATHERLAND

I oppose the Amendment. We have heard something about separation in cases where money is being paid and where it is not being paid, but the word "desertion" implies something specific; in many cases it means that the husband has told his wife, "I'm leaving you. I'm going to live with Elsie". That is surely specific enough to justify the wife asking the court for an order of separation and maintenance. As I say, the word "desertion" is specific, far more so than the provision which my noble friend suggested covered the point, namely, that the party behaved in such a way that the applicant cannot reasonably be expected to continue living with him. Desertion is specific; the husband or the wife walks out, and in my view the spouse concerned should have a right of remedy.

Lord HALE

Desertion is not by any means as specific as one may think. A course of conduct may drive a spouse from the home and constitute desertion on the part of the person who commits the course of conduct, but I would still like the Minister to explain the point in a little more detail. We are discussing law reform again, but let us remember that all the Amendments now before the Committee were printed this morning, at a time when getting to your Lordships' House presented some problems. Because of the courtesy of those in the Public Bill Office, people who are always helpful, my attention was drawn to Amendments which had not been printed but which had been tabled that day and which were being increasingly tabled last Thursday, which in Parliamentary terms for most of us was yesterday.

Now we are trying to find out what this mass of Amendments means, and it seems to me that it may mean this. A husband employed by, say, an American company which makes careful inquiries about wives, attitudes towards the FBI and matters of that sort may, if threatened by a spouse leaving him, say, "Let us live apart for a time. I do not want to litigate and I do not want to go to court. I will pay you a generous allowance for the time being and we will live apart and perhaps after a time get together again". For the lady then to say, "I would like to have this registered in court under an order"—I may be wrong about this but this is my understanding of what is proposed—seems to me to be encouraging somewhat outrageous conduct. On the other hand, if it were said that an agreement had been wantonly broken, that would be a different matter. But, so long as an agreement is going on, I do not see the point of having this sort of elaborate Amendment which, in any event, would add considerable complexity to an already complex problem.

Lord HARRIS of GREENWICH

As my noble friend Lord Ponsonby pointed out, this Amendment would remove desertion as a ground for seeking a matrimonial order in the magistrates' court, leaving failure to provide reasonable maintenance and unreasonable conduct as the only grounds for obtaining an order. The Law Commission in their review of this matter said frankly that opinion was about equally divided among those who commented on their Working Paper between those who favoured retaining desertion as a separate ground and those who did not. I must make it clear at the outset that I share the Law Commission's view on this matter, which is that on the whole the balance of advantage lies with retaining desertion as a separate ground.

The case which I think they had particularly in mind when they looked at this question was of a spouse who had been deserted and who was for the time being receiving adequate support from the other parry, but with no guarantee of support continuing. I think it is right to allow a spouse who is in this position to obtain the security of a court order without having to wait until that financial support has stopped. I expect that in practice desertion will not be relied on in a great many cases, but I think it is right that it should continue to be available.

I take my noble friend's point that desertion can be a highly technical offence; I accept that there are complexities which arise in establishing desertion which do not arise when one is attempting to establish the other grounds provided in Clause 1. However, I do not think that this in itself justifies not leaving it as a ground for an order. Desertion is at present available as a ground for an order, and while courts certainly find that technical difficulties can arise, I do not think it has given rise to any substantial problems in practice. I repeat, therefore, that this is a difficult question of balance. The view of the Government is the same as that of the Law Commission; namely, that it is right to retain desertion as a separate ground, and it is our view that if it were not retained as a ground the deserted wife's interest could be damaged.

Lord PONSONBY of SHULBREDE

I thank my noble friend Lord Harris for his reply. I shall withdraw the Amendment at the present time, consider what he has said, and possibly return to it at a later stage.

Amendment, by leave, withdrawn.

3.20 p.m.

Viscount HANWORTH moved Amendment No. 1B: Page 2, line 7, leave out ("deserted") and insert ("has separated from".)

The noble Viscount said: I have already partially spoken to this Amendment, and I think that the noble Lord on the Front Bench has also made some arguments dealing with it. To state the case briefly, in my opinion there is nothing wrong with desertion as a ground if you take it as having its common-sense meaning, but it has a lot of legal pitfalls and it is in fact very difficult to prove desertion or to refrain from some act, such as going back to the home for a night or so, which invalidates it. I believe that separation is a much better ground from a commonsense point of view; and I do not see why, if a couple have decided to separate, they should not formalise the financial arrangements by going to the magistrates' court.

Today, divorce is relatively easy. This is asking far less: it is simply ensuring maintenance. I do not see why we should force the applicant back on paragraph (c) of this clause, which is a behavioral provision. That is dredging up all sorts of imagined or forgotten matrimonial offences and dragging them through the courts when they have perfectly sensibly agreed to part for the moment. I myself feel extremely strongly on this Amendment. So far, I have not been satisfied by what has been said from the Front Bench. So, whereas I shall probably not return to my previous Amendment, this one, I think, needs considerably more careful thought by the Government. I beg to move.

Lord HARRIS of GREENWICH

If the noble Viscount wishes to return to this matter at a later stage, that is of course a matter for him, but I hope I shall be able to persuade him that this Amendment does not have a great deal of merit. The noble Viscount, in proposing his Amendment, has made the point that, if this particular form of words were used, some of the technicalities which are involved in establishing desertion would in fact be removed. But, unhappily, the situation is that the replacement of "desertion" by the word "separation" really does not help.

Separation is a matter of fact and it may arise in quite a substantial number of ways. Let me take just one fairly obvious example. One of the partners may be in the Services or working abroad on business for quite a substantial number of months. The separation of the parties does not of itself imply that the marriage is in difficulties, and I do not think that the mere fact of separation should be a sufficient basis for obtaining a magistrates' court order in maintenance proceedings. For the court to grant an order there must be some indication that the marriage is in difficulties. This, of course, is present in the concept of desertion, which requires the applicant to establish that the separation has been imposed by the respondent against the applicant's wishes. Certainly I shall consider anything else the noble Viscount wishes to put to us on this particular Amendment, but for the reasons have given we do not believe that the use of the word "separation", as proposed by this particular Amendment, would in any way improve the situation.

Viscount HANWORTH

I think it possible that the further objections which the Minister has raised might be met by a small Amendment qualifying what is meant by "separation". I shall consider this point. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Powers of court to make orders for financial provision]:

Lord PONSONBY of SHULBREDE moved Amendment No. 2: Page 2, line 33, leave out ("£500") and insert ("£100").

The noble Lord said: This Amendment, which I beg to move, is a probing Amendment. It is to reduce the amount of the lump sum payment from £500 to £100, but what I am trying to elicit from my noble friend is how in fact he sees this particular clause working in practice. The Law Commission, in looking at the question of the single lump sum payment, first of all said that they were in general agreement that it would be unsuitable for magistrates' courts to make orders for the transfer or settlement of property". They then went on to say: The majority of those who commented agreed that such a provision should be made, but differing views were expressed as to how it should be framed. Some thought that there should be no upper limit to the amount of the lump sum: others took the view that the upper limit for the lump sum should be as little as £25". They then said: We think that what the working party had in mind when making the proposal was that the magistrates, in addition to any periodical payments they order, should be able to award an applicant some comparatively modest sum to cover expenses such as outstanding hire-purchase debts, gas or electricity bills or removal expenses. The power to award a lump sum will also in many cases be a useful means of dealing with maintenance expenses incurred before the date of the order". They continued: We have reached the conclusion that the Act should empower the court to order payment of a lump sum not exceeding £500".

One gets the feeling, on reading the Law Commission's Report on this matter, that the figure of £500 was plucked out of the air and that there was no very real justification for that or any other figure. However, I think that this afternoon we should ask ourselves the basis on which the magistrates' court will come to a decision on how much, and on whether or not they should make an order for a lump sum payment. In coming to this decision, Clause 3 of the Bill enumerates various matters to which the court should have regard, and, of course, these matters refer both to maintenance and to the payment of the single lump sum. In general terms, these seem to be very commendable grounds on which the magistrates should make their decision; but the question is what will in fact be the evidence which is put before the court to enable that court to come to a particular decision on this matter.

Here I think it is instructive, perhaps, to refer to the Finer Report, which, in paragraph 4.108, first of all quoted from the report of the committee presided over by Judge Jean Graham Hall, which says this: 'It is of the utmost importance that the decisions reached by magistrates about maintenance should be based on adequate and reliable information about the needs of the parties and their resources and liabilities'". Finer went on to say: Yet there is no obligation placed on magistrates, and hardly any means available to them, to obtain information about the needs and means of persons affected by their orders other than what they manage to elicit from the witnesses who appear before them. The magistrates do have power to require a probation officer to investigate and report, but the High Court has ruled that they are not bound to resort to this procedure, and that they should be slow to do so. The power is rarely exercised, and its more frequent employment would embarrass an already over-stretched probation service. Understandably also, magistrates are often loth to adjourn for further investigation, particularly as there may be difficulties in reconstituting the same bench for the next hearing". I think that is an important point: that if in fact any matter under this heading has to be adjourned, a Bench comprised of the same people should hear the adjourned application. Finer continues: …commonly the magistrates base their decision on little more than the production of a pay slip, which may easily be untypical of the husband's earnings. It may, for example, give a false impression of his normal overtime. The evidence may be supplemented by information as to the husband's means supplied by the complainant herself, but she is often ignorant of what he earns".

The Finer Report makes it clear that in fact the magistrates often have to make their decisions as to maintenance and as to the lump sum payment on inadequate information. If the result is to make an order for too high an amount it can lead to arrears and hardship. To make an order for payment of a lump sum the magistrates would need to have more knowledge that they have at the present time of the respondent's assets. The Bill as it stands makes no provision for the court to obtain this additional information.

I think it is true to say that unrealistic orders, whether they are too large or too small, can give rise to considerable distress and worry. If they are too large the effect will be that the court will subsequently order the amount to be paid by instalments. If it is an amount to be paid by instalments it will no longer meet the needs of the moment—the crisis conditions which the Bill envisages the lump sum payment has to meet. If it is too small, undoubtedly the appellant will be upset. The court needs to be assured that the respondent will be able to pay the amount soon, and in order to have the knowledge to do that they need more information than they have at present.

With regard to the lump sum payment, it is envisaged that the court has no power to remit the amount; once the amount is ordered it is fixed. They have power only to vary the amount of the instalment. The fact is that the respondent will be saddled with the order and if he does not pay he could eventually go to prison. The inclusion of the figure of £500 raises false hopes in the bosom of the applicant.

Might I refer briefly to the Domestic Violence and Matrimonial Proceedings Act 1976 which raised the hope that for violent conduct an unmarried woman would be able to put the man with whom she were living out of the home. This part of the Act has not worked out and courts have been very reluctant to put it into effect. This is now a matter of appeal to your Lordships' House. Undoubtedly, the putting in of something which held out false hopes has led to an embittered attitude to the law because of the feeling by social welfare groups and so on that they were going to achieve more under the new law than they had achieved in the past. Under the Bill as it is now framed, it is likely that if the courts do not have the additional information before them they will not make the order, and this also will lead to an embittered attitude. My purpose in moving this Amendment is to find out exactly how my noble friend Lord Harris sees it working in practice. I beg to move.

3.34 p.m.

Baroness WARD of NORTH TYNESIDE

Perhaps I may make one observation on this matter. I do not want to enter into it in detail, but sometimes when one is talking in general terms one forgets to point out that magistrates at one court often take quite a different view from magistrates at another court. This is a very difficult matter indeed to surmount. I was a magistrate for very many years until I retired, and when I sat on the Bench I knew about the cases that were to come up. As your Lordships know, we always try to have, as everybody thought necessary, three magistrates sitting in court. I would look at my co-magistrates, and generally I knew what view they would take. In a matter of this kind I think it is important to remember that magistrates have quite different views on desertion or separation or on what has been done by the party who has been brought to trial. I mention this matter because I think it ought to be considered in conjunction with any Amendment.

3.35 p.m.

Viscount COLVILLE of CULROSS

This raises a point to which I was going to draw attention on the Question, That the clause stand part of the Bill. I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his Amendment in these terms. It occurs to me—and perhaps the parallel to the Domestic Violence and Matrimonial Proceedings Act 1976 is not altogether inept—that the magistrates, and indeed, what the noble Lord did not mention, the parties, are going to be in some difficulty in the proceedings, not only in relation to the lump sum but altogether because of the way in which magistrates' courts proceedings are presented. As a rule, the documentation is very sparse, and whereas, however informally, in the county court there is something in the way of pleadings, in the magistrates' courts there is nothing of the kind.

Unless something is done about the question as to the means from which a lump sum could be awarded, and how big it should be, and also, I should have thought, as to quite a number of things listed in Clause 3(1), I do not see how the magistrate is to cope, nor do I see how the other party to the marriage is to know what to do. Whether it is the husband or the wife makes no difference; neither will know what case they have to meet and what demands their spouse is asking the magistrate to impose upon them. I do not know whether necessarily we ought to write something into the Bill—I would think not. Rather like the £500, which I think is to be experimental, I strongly suspect that we need to be experimental in the provisions that enable the magistrate adequately to carry out his functions under the Bill.

With that in mind I immediately think of rules which do not have to be brought before Parliament except as a Statutory Instrument. When applications are made under Part I of this Bill I would hope that the Home Office will require rather more than a simple complaint for an order or something of that sort, perhaps some statement of the alleged reasons. If under Clause I we are going to cut down the number of grounds upon which a person is entitled to go to the magistrates' court, so that, for instance, all he has to say is, "She behaved in a way in which it was not reasonable to expect me to live with her," the wife, or alternatively, the husband, might be entitled to know what is the basis of the complaint. Under the old Act there was a list which, although it has been so much criticised, at least was specific. But that is not the position under this Bill.

I hope that the noble Lord will be able to tell us more about this, for I am sure that it has been thought out with some care. I go wider than the noble Lord, Lord Ponsonby: I support the reasons that underlie his Amendment. I should think, if the Law Commission say £500, that that is as good a starting point as any; but I agree with him that it will only be a successful starting point if this matter and, I think, the other things as well, are capable of being properly assessed at the time of the hearing. I hope that the noble Lord, Lord Harris, will be able to help us, for it will be of some relief to practitioners who appear in these matters.

Lord HARRIS of GREENWICH

As my noble friend Lord Ponsonby has pointed out, this Amendment would fix a maximum limit of £100 for a lump sum awarded by magistrates' courts in matrimonial proceedings instead of the limit of £500 which is at present provided in the Bill. However, both the present maximum and the new maximum proposed in the Amendment are without prejudice to the power conferred on the Secretary of State to fix a larger maximum by order made under Statutory Instrument. This is provided for in subsection (3) of this clause; and that is obviously intended to take account of the effects of inflation in future years.

I am afraid that I am not convinced—but it is only fair to say that I do not think my noble friend made too much of this—that it is necessary to limit the magistrates' powers to order a lump sum to a maximum of £100. I think that the £500 figure is reasonable. My noble friend asked whether it was plucked out of the air. Inevitably, almost any figure that one chooses to decide upon is plucked out of the air. The Law Commission certainly consulted pretty widely on this matter, and I understand that opinions varied from the view that there should be no limit at all on the amount of the lump sum to the view that it should be something in the region of £25. That being so, it seems to me that £500 is not an unreasonable figure. Certainly, as my noble friend Lord Ponsonby conceded, magistrates will have the power to order the sum to be paid in instalments. Again, he said that the Law Commission had suggested that the lump sum might be used for one of a number of purposes—for instance, outstanding hire-purchase debts, gas or electricity bills, removal expenses or maintenance expenses incurred before the making of the order.

My noble friend then mentioned the point about Finer. Certainly, it is true that magistrates do rely on evidence to find out what are the means of people appearing before them. Finer thought that the Supplementary Benefits Commission should be required to report in every case; but, unhappily, we have not been able to accept this particular recommendation because it would not be possible for the Supplementary Benefits Commission to take on this additional burden.

Of course, it is the case that the summary procedure of magistrates' courts is intended to enable the courts to deal quickly and simply with fairly straightforward cases. The cases in which the courts will award a lump sum are unlikely to require a major inquiry into the details of each party's financial assets. It would be neither desirable, nor, I think, necessary, to introduce a complicated procedure into magistrates' courts for obtaining information on the full structure of the parties' financial resources. If the financial affairs are very complicated, the person seeking an order can proceed in the county court, where the power of discovery is available.

The Law Commission considered the question of whether there should be a means questionnaire and came to the conclusion that the aim of providing the court promptly with information as to the parties' finances would not be achieved by a compulsory scheme which would have to include penalties or warnings of penalties. Such a scheme would, it was thought— engender timidity and reticence rather than confidence and candour". That is what the Law Commission said in Paragraph 4.28. The Commission instead recommended the introduction of a scheme for the voluntary completion of a means questionnaire; and the Government accepted this suggestion.

The applicant, on making the complaint, should be invited to answer a simple questionnaire which would be served on the respondent with the summons and he also would be invited to complete a questionnaire about his means. The Commission suggested that provision for such a scheme should be embodied—and this is to take account of the point made by the noble Viscount—in magistrates' courts rules; and, again, we agree with this recommendation. It would have a measure of success, in our view—probably more so than any other type of alternative which might be put forward.

I should add that, in the Law Commissions' consultations, both the Law Society and the Justices' Clerks' Society also favoured the introduction of lump sum payments. We are moving into what is undoubtedly something of an experimental field, as the noble Viscount pointed out. I think, broadly, that this is the right approach, and it is one that I would recommend to the Committee.

Viscount COLVILLE of CULROSS

Will the noble Lord, Lord Ponsonby, give me one moment? I am glad to hear what the noble Lord, Lord Harris, has said. Of course, as to the voluntary questionnaire, the sanction is that, if you do not fill it in and you are the applicant, you probably will not get your order; and, if you do not fill it in and you are the respondent, a very unpleasant order may be made against you. And it will be your own fault in either case.

Can the noble Lord say a little more? Will it go beyond means? Will the rules also provide for a few more details? For instance, will the—I cannot use the word "charge"—allegation which is the basis of the whole application under Clause 1 be spelled out in a little more detail or will the respondent have to wait until he or she gets to court before hearing what dreadful sin he or she is supposed to have committed? I should have thought that there was room in the rules for both, and that it should not be confined only to means.

Lord HARRIS of GREENWICH

I shall gladly take note of that point.

Lord PONSONBY of SHULBREDE

I thank my noble friend Lord Harris for his reply which I shall read and study with interest. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 5 agreed to.

Clause 6 [Orders for payments which have been agreed by the parties]:

On Question, Whether Clause 6 shall stand part of the Bill?

Viscount COLVILLE of CULROSS

Arising immediately out of what has just been debated, in Clause 6 there is, of course, no maximum on the lump sum. I suppose that it is intentional that the parties, if they do it by consent, as in this case, may exceed that. I imagine it is proposed that this should be allowed, but I have no doubt that the court will look carefully again at the lump sum, based on any means questionnaire, to see that somebody has not overstretched himself and put in an unreasonable amount which cannot be paid.

Lord HARRIS of GREENWICH

I am grateful for that point. It is an interesting one and I should like to look into it.

Clause 6 agreed to.

Clause 7 [Orders for the custody of children]:

3.48 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 3: Page 7, line 44, at end insert— ( ) Where the court has it in mind to make an order under subsection (3) above, it may—

1. (a) adjourn its decision;
2. (b) require that notice be given to the person who would, if the order were made, be treated as if he had made an application under Part II of the Children Act 1975;
3. (c) refrain from making any such order unless the provisions referred to in section 11(2) below have been fulfilled in respect of that person; and subsections (3) to (9) of section 11 shall apply in respect of that person as if he had been an original party to the proceedings."

The noble Viscount said: It is at this point of the Bill that we start to get into difficulties because of the plethora of legislation on children. I do not know whether I have here a good point or not because it is beyond the wit of man to understand what Parliament has been doing over the last period of years. In the Children Act 1975—and your Lordships' guess is as good as mine as to whether it is all in force yet or whether Section 33 is in force; although I think it is and there is no doubt that it will be before this Bill comes into force—there is a provision whereby a custodianship order can be applied for by people neither of whom are the parent of children but who fall into certain specified categories. The provision in Section 33 requires that the relative, step-parent or parent must apply with the consent of a person having legal custody.

This provision is adopted—or perhaps "adapted" is the right word—by subsection (3) of Clause 7. We now have a provision whereby the magistrates can give legal custody to somebody who is not a party to the marriage—that is, a parent or step-parent—or the other parent. If they think that such a person is the right one, they can treat that person as if he or she had applied under Section 33 and was qualified to do so. What occurred to me is, how do you get that person before the court? There is no prerequisite under Clause 7(3) that that third party should have made an application. They have to under Section 33 of the Children Act, but not under this provision.

It may be very sensible that the magistrates should decide that the grandmother or some other close relative—indeed, there are reported cases where they or the equivalent division of the High Court have done so—should have the custody of the child. But it would be necessary for the magistrates to look at the person concerned and, if necessary, question them in the witness box or at any rate know something about them. But how do they do it? I do not think that there is anything in the Children Act 1975 because there is no necessity. The person has to have applied with the consent of the person who already has the legal custody of the child, but not under this Bill. There are, therefore, procedural difficulties which I envisage, to which I have not been able to find the answer.

A parent in front of magistrates may have some very good reason why he or she should not be able to have legal custody of the child but have the most virulent views about the unsuitability of the other party. Perhaps there is a perfectly reasonable compromise in a grandparent or some other relative whom the magistrates would like to call into use. What we want under this legislation is the maximum flexibility. We want to be able to give the magistrates the power to do whatever they think best not only for the parties but particularly the child. I shall come back a little later to what are the proper criteria. They are going to be hindered and hampered by the narrowness of this drafting and, if I may respectfully say so to whoever drafted the Bill, to a slight incompleteness in the adaptation of the other legislation. It is a technical point, but it has some substance in it. If the noble Lord, Lord Harris of Greenwich, did not understand what it was when he saw my drafting, he may be easily forgiven for that.

Another point appears in paragraph (c) of my proposed new subsection. I am attempting again to be constructive, and one looks forward to Clause 11 where the court, thinking it has not sufficient information, can go ahead and get some reports from the probation officer. I hear what the noble Lord says about probation officers and I am not suggesting that this should be an automatic requirement. But I think that they would like to have this. I cannot find out whether or not they have it under the Children Act because I cannot follow the implications of the Act. But they should have this power if they are looking at a third party who is not before the court. Whether or not I have the right solution, I have a problem which requires attention. I beg to move.

3.55 p.m.

Lord HARRIS of GREENWICH

Though the noble Viscount did not refer to his Amendment No. 10, perhaps I may deal with this at the same time, as it raises not dissimilar issues. I am much obliged to the noble Viscount as apparently he is content that we should proceed on that basis. It is common ground between us that this is a technical matter.

As the noble Viscount has pointed out, these Amendments refer to an order made under Clause 7(3) of the Bill. Perhaps I may say a few words about the situation as it stands in the Bill. Where the court thinks legal custody should be given to a person who is not a party to the marriage or a parent, Clause 7(3) empowers the court to direct that that person shall be treated as if he had applied for a custodianship order under Section 33 of the Children Act 1975. It also provides that in such a case the person in question shall be treated as if he were qualified to apply under Section 33. The court does not in fact make a custody order under Clause 7(3).

This provision is the same as a corresponding provision already in the Children Act in respect of guardianship proceedings. Section 37 of the 1975 Act provides that if on an application in guardianship proceedings the court thinks it should make an order giving custody to a person other than the mother or father it may direct that the application be treated as if it had been made under Section 33 of that Act.

The effect of these provisions is that the case is treated as an application under the Children Act 1975. The persons who are to be made defendants to such an application are provided by rules under the 1975 Act and the usual requirements to serve notice of the proceedings will apply. It is not necessary therefore to make any provision of the kind made in the Amendment to Clause 7. A magistrates' court has power to adjourn the case without a specific provision to that effect.

Dealing with Amendment No. 10, the order made by the court in these cases will be a custodianship order made under the 1975 Act and the proceedings will be custodianship proceedings under that Act. All the provisions in the Children Act 1975 relating to the variation and revocation of custodianship orders will apply and it is therefore not necessary to make any provision of the kind envisaged in the Amendment to Clause 16. That is the situation. It is admittedly a fairly technical field, as the noble Viscount has pointed out. If, having considered what I have said, there is any other point that he would like to raise, I will gladly consider the matter. The situation as I have described it is the situation as it will be in the Bill.

Viscount COLVILLE of CULROSS

I am obliged to the noble Lord. There is already at least one point. Is there a power under the Children Act or the rules which is the equivalent of the provisions of Clause 11(2) to (9) of this Bill? If there is, then that is admirable. If there is not, there ought to be. I know that it would not be in this Bill; we would have to write it into the Children Act as a result of what the noble Lord has said. I was not able to find it. It may be that I have not looked hard enough.

If there are rules under the 1975 Act which require notice to be served, and so on, when does that happen? It is just that I do not have the rules. The noble Lord may not be able to tell me now; perhaps he will write in due course. Is this something susceptible of being dealt with at the court itself? The whole procedure under the Children Act envisages—it may not be so under Section 37, but it certainly is under Section 33—that this would have been something which was proposed beforehand. I envisage that it would come up in the course of the hearing. I hope that, if the rules are not wide enough already, they will be made wide enough to deal with this matter, because I consider it to be a proper flexibility to give the magistrates. I do not expect the noble Lord to answer now; but those are my immediate thoughts and perhaps I shall have some more later.

Lord HARRIS of GREENWICH

I am much obliged to the noble Viscount. One additional point in answer to something he said in moving his Amendment is that Clause 33 is not yet in force. It is held up with, I fear, all the other custodianship order provisions for the day when there will be enough social workers.

Viscount COLVILLE of CULROSS

I hope, therefore, this discussion has not been wholly academic and that one day it may have some effect. In view of that, would the noble Lord consider and perhaps write and let me know whether there ought to be some interim arrangement? I do not know whether this Bill will have to be held up until there are enough social workers; I would hope not. If that is so, and if we shall not be able to use Clause 7(3) until there are enough social workers, because it is assimilated into the 1975 Act, since there are other transitional provisions in this Bill to deal with other legislation might it not be wise to have one for this as well? I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.0 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 4: Page 8, line 32, leave out subsection (8) and insert— ("(8) Notwithstanding anything in the proviso to section 60(1) of the Magistrates' Courts Act 1952, the court may, in any proceedings in which the powers conferred by subsection (2) above are or may be exercisable, at any time direct a probation officer to make to the court under that section a report on the means of the parties.").

The noble Viscount said: This is really a comparison in elegance, and I wish your Lordships to give heed to what I say. Clause 7(8) of the Bill says: In any proceedings in which the powers conferred on the court by subsection (2) above are or may be exercisable, the question whether, and if so in what manner, those powers should be exercised shall be excepted from the issues arising in the proceedings which, under the proviso to Section 60(1) of the Magistrates' Courts Act 1952, must be determined by the court before the court may direct a probation officer to make to the court under that section a report on the means of the parties". It is not immediately clear from that subsection what one is talking about. I think I have written my Amendment in English, and I beg to move.

Lord HARRIS of GREENWICH

I will gladly look at the request which the noble Viscount has made—that is, to consider the language on the face of the Bill. He will be glad to know that, because of the characteristically interesting Amendment that was tabled and our uncertainty as to the particular point he was after, a good deal of research was done into the case of Higgs v. Higgs in 1941. As the noble Viscount will recall, that was the case in which Lord Merriman delivered a particularly interesting judgment—but in fact it was on a rather different point, because we had assumed that the noble Viscount was interested in the substance of the proposal rather than the language. I will gladly look at this particular point to see whether something can be done to improve the flow.

Viscount COLVILLE of CULROSS

I am very grateful. I have, with regret, to reject Higgs. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 agreed to.

Clause 9 [Powers of court to commit children to care of local authority]:

4.3 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 5: Page 10, leave out lines 22 to 24.

The noble Viscount said: This is about a child over the age of 17 but under the age of 18 being committed to the care of a local authority. It appears to be engraved upon the tablets of stone that such children do not get put into the care of the local authority. They can be if they are 16 but not 17: they cannot be if they are 17 but not 18, and I do not understand why. I know it is so in other legislation but, if a child leaves school at 16 and does not become adult until 18, what difference does it make if he happens to be half-way between?

It would seem to me that, if there are cases for putting into care children who are over the age of 16, when perhaps such things are normally considered, the provision might as well go straight on up to the age of 18. I seek an explanation from the Government. This is something of comparatively long standing and perhaps it is time it was looked at again. I do not like strange rules which have age limits that do not correspond to anything else. I should like an explanation from the noble Lord, Lord Wells-Pestell, if he can give me one, and I shall listen to it with the greatest interest. I beg to move.

Lord WELLS-PESTELL

Clause 9 (1) states: Where a court has power by virtue of section 7(2)", and we are dealing there with a custody order. As I understand the situation, in Clause 9(6) we are dealing with a court and its powers to make a care order to the local authority. The Law Commission recommended that the provision in Section 3(4) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 should be brought into line with the corresponding provisions of Section 43 of the Matrimonial Causes Act 1973 by raising the age at which a child may be placed in the care of a local authority from under 16 to under 17. This is for the purposes of making a care order. The omission from page 10 of the Bill of lines 22–24 which the noble Lord is moving would leave magistrates' courts with a power to commit a 17-year-old child to the care of the local authority; but that power would cease on his 18th birthday. So this is presumably an attempt by the Law Commission to bring the provision into line with other practices.

Perhaps I should first emphasise that this provision in the Bill is a re-enactment of the substance of Section 2(1)(e) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 and that it is parallel with the Matrimonial Causes Act 1973, Section 43. It does not mean that the Law Commission's recommendation to re-enact it was taken without consultation and consideration. I have some interest in this in another connection and was at some pains to find out whether consultation and consideration had taken place. I am sure, from what I am told, that it has.

In addition to recommending that the wording of the provision of the 1960 Act should be brought into line with the Matrimonial Causes Act 1973, the Law Commission considered whether some change should be made in the provision in Clause 9(1), to which I made reference at the beginning, that a court should only commit a child to the care of the local authority if it is satisfied that there are exceptional circumstances justifying such a course. The Law Commission concluded that the power to commit to care should be exercisable in any proper case, but had no evidence that the terms in which the power is at present conferred are unduly restrictive in practice, and they thought that—and here I quote— the power should be regarded as a power of last resort [and that it was] right in principle that the magistrates' courts' powers, like those of the divorce court, to commit to care should be exercisable only in exceptional circumstances". If I may make one other point, I think it is clear that the provisions of this Bill as a whole, in so far as they refer to matrimonial and guardianship law, are governed by the general provision in Section 1 of the Guardianship of Minors Act 1971, re-enacting the Guardianship of Infants Act 1925, requiring all courts in proceedings of any description in deciding any question relating to the custody, upbringing or property of a child, to regard the welfare of the child as the first and paramount consideration.

The noble Lord will remember the discussion we had upon that not so very long ago. I think I am fortified in that view by the observations of the Law Commission itself in paragraphs 5(1) and 5(3) of their report. It follows that they saw no inconsistency with this principle in the wording of Clause 9 of the Bill, which they considered with some care; and I suggest that probably there is none. Rather, the reference to "exceptional circumstances" is an indication to the court that it can only be in exceptional circumstances that it would be in a child's interests, where his legal custody is in issue as a result of matrimonial proceedings, to place him in the legal custody of a local authority rather than that of either parent or of some other person. I should have thought, on reflection, that that was the right thing to do. The Government are anxious not to accept the Amendment of the noble Viscount because they feel that, quite apart from the fact that the Law Commission went into this matter very carefully, it would seem right in the circumstances to do as provided: otherwise what does one do in the case of a child who is over 17 and who is the subject of these proceedings?

Viscount COLVILLE of CULROSS

That was the question that I asked the noble Lord, and he has not answered it. Exceptional circumstances or no exceptional circumstances is another argument, and it is one to which I shall come when we discuss the criteria on clause stand part. But what nobody has done—neither the Law Commission nor the noble Lord—is to explain why there is the limit of 17. I entirely understand that it is consonant with the other legislation. I entirely understand that it is the same as in the Matrimonial Causes Act. I entirely understand that it goes back to the legislation of 1960. That is why I say that it is engraved upon the tablets of stone. But why must we stick to it? If under this Bill magistrates can make a custody order for a child up to 18, why can they not commit him to the care of the local authority? It may be that only exceptional circumstances would require that to be done, but why are they debarred from doing it? What is the magic in 17?

The noble Lord said that the Law Commission had consulted. I have no doubt that they have, and I am grateful to him for checking up that they have done so. I should have expected them to make the widest consultations. But they have not given us any reasons, and neither has the noble Lord. Why is there this limit of 17? What is the reason for it? Is it just history? Are we stuck, or has nobody ever thought to look at it again and rationalise it and bring it into line? I am not trying to be difficult. I simply do not understand, and if the noble Lord can enlighten me any more I shall be very pleased indeed.

Lord WELLS-PESTELL

I take the noble Viscount's point, because my own mind went along those channels. I wondered why this was so, and whether it was just one of those things that one had to accept or not accept. For my own part—and I am sure that I also speak for my noble friend—I should like to take this back, if the noble Viscount will allow me, have a look at it afresh and see whether there is some good reason for adhering to this.

Viscount COLVILLE of CULROSS

That is more than generous of the noble Lord. What I feel has happened is that in 1960 when the precedessor of this Bill was passed, the age of majority was 21 and the age of 18 had no magic one way or the other. Then, along came the legislation under the previous Socialist Administration, the Family Law Reform Act, which brought in adult status at 18, and all the things that flowed from that were not necessarily followed through. Why should they be? It was a very complicated Act, and I remember it very clearly. But this may be one of the things that has remained as an anomaly, and perhaps nobody has thought to ask. Therefore, I very happily take up the noble Lord's offer and, if he will tell me the result of his deliberations, not only I but a number of people in local authorities who have to deal with custody proceedings, and who are equally puzzled, will be grateful, too. So that if the noble Lord can find out before the next stage of the proceedings, he will have done a lot of good to everybody. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.14 p.m.

Baroness MACLEOD of BORVE moved Amendment No. 6: Page 10, line 38, leave out ("£10") and insert ("£100").

The noble Baroness said: This is a financial A mendment, which seeks to increase the fine for a parent who has relinquished all responsibility for a child who is in the care of a local authority, and who does not notify the local authority as the Bill demands. The Bill demands that the parent shall notify the local authority of a change of address, and if he or she does not do that there shall be a fine of £10. As it would cost a very great deal more than £10 to enforce a fine of £10, I have proposed in this Amendment to increase the fine from £10 to £100. I should like the noble Lord's views on this. I beg to move.

Lord HARRIS of GREENWICH

Let me begin with a point of agreement with the noble Baroness. On reflection, I think I would agree with her that the figure of £10 is rather on the low side. Certainly, I make it absolutely clear at the beginning that I do not think that this offence, which is a failure by a parent or guardian to notify a change of address, can be regarded as a particularly serious one, and I should therefore be very hesitant about moving to £100, which is what the noble Baroness has suggested. What I have in mind, it the noble Baroness finds this acceptable, is to replace the existing penalty of £10 with a maximum of £50.

There is a reason for this. I am not trying to find a halfway house between zero and £100. I am doing it because of the provisions of the Criminal Law Act 1977, in which we have sought to introduce some measure of standardisation in fines. The scale of fines which was introduced in that Act, and which we hope in due course to apply right across the board, does not include the figure of either £10 or £100. There is, however, a figure of £50. The next figure on the scale is £200 which, as I have made absolutely clear, would be excessive. Therefore, if the noble Baroness would like to withdraw her Amendment, I will put down Amendments at Report stage to deal with this point, and there will have to be a number of consequential Amendments to other provisions in the Bill.

Baroness MACLEOD of BORVE

I thank the noble Lord for what he has said. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 9 shall stand part of the Bill?

Viscount COLVILLE of CULROSS

I hope that the noble Lord, Lord Wells-Pestell, has a copy of the letter that I sent to his noble friend Lord Harris about the criteria, because it is a complicated matter. But perhaps the noble Lord, Lord Harris, will be dealing with it. It is a question that arises under subsection (1), which covers putting a child into the care of a local authority. As the noble Lord, Lord Wells-Pestell, has said, there has been written into the Bill, as it now stands, the criterion of exceptional circumstances. For all I know, that is absolutely right and I am not criticising that. But what I find a little disturbing is the way that Parliament puts different criteria in practically every Bill that it passes.

I do not want to go too far back, but the noble Lord, Lord Wells-Pestell, has just said, if I heard him aright, that the whole of the proceedings under this Bill—in relation, at least, to care proceedings—will be governed by those fine words in Section 1 of the Guardianship of Minors Act 1971: … the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration various other things. First, if that is what Parliament means in this Bill, then, for Heaven's sake!, let us say so. The Bill does not say so at the moment. This is supposed to be a self-contained clause, and I do not understand that Clause 9 is assimilated into the ambit of the Guardianship of Minors Act. Therefore, the very first thing that we should have written into the Bill is that criterion.

Although magistrates have perhaps managed to deal with this very satisfactorily—but I should not, if I were a magistrate—they have some cause for complaint. It is not for them to deal with matters under Section 1 of the Children and Young Persons Act, but it certainly is for local authorities. They have powers and duties under that Act to decide whether or not to seek to put children into care. In order to do so they have to satisfy themselves that there is one of a given list of circumstances applicable to the child, and, in addition, that the child is in need of care and control, which he will not get without a care order committing him to the care of the local authority.

Then there is Section 57 of the Children Act, which rewrites Section 2 of the Children Act 1948. It is, in fact, a resolution by local authorities and, again, I do not think that it comes before the magistrates. But it is something which can be challenged by the parents, and sometimes is. No criteria are set out in that section as to whether they are to act, or whether anybody is to act with the welfare of the child in mind. Now we have this Bill which contains no criteria, either.

The result is that officers who are in charge of the children's part of the social services division of local authorities are sometimes very perplexed. They do not know what court they can go to; they do not know which Act they should use, because every Act lays down different criteria and if they get it wrong they will not obtain the care order, however much the child may need it.

As good an example as any is a recent decision in the Family Division by Mr. Justice Dunn called In re D, a minor. Having despaired under the Children and Young Persons Act, because of the criteria, the local authority concerned went for yet another way of getting a child dealt with; namely, under Section 7 of the Family Law Reform Act 1969, and applied for wardship proceedings. This is a further alternative method of looking after a child where, beyond any question, the welfare and the best care and consideration for the child are paramount. The learned judge said this: Far from local authorities being discouraged from applying to t he court in wardship, in my judgment they should be encouraged to do so because in very many of these cases it is the only way in which orders can be made in the interests of the child untrammelled by the statutory provisions of the Children and Young Persons Act 1969". I know that that is not this case, but in this case we do not have, first, "best interests" as a criterion; it is not written into the Bill. Secondly, we do have "exceptional circumstances". The local authority child officer will look at Clause 9 and say, "Are there exceptional circumstances or are there not? I don't think that I can risk it. This child undoubtedly, in my view, needs to be taken into care. I'm not going to use this Bill, which contains an even newer criterion that I have never had before. I'm going for wardship proceedings". If the criterion of "exceptional circumstances" is interpreted strictly by magistrates—and experience shows, as my noble friend has said, that some magistrates have a restrictive approach—then local authorities will proceed under wardship proceedings, as they have had to do under the Children and Young Persons Act 1969.

I find this, upon examination, to be a very confusing and, frankly, a very disturbing state of affairs. Within a matter of about nine years we have passed a variety of Acts—and we are now in the process of passing a Bill—not one of which contains the same criterion. We find that there is a very real problem and a very real differentiation to be made between the kind of courts—whether it is the Family Division or the magistrates' court, or by resolution of the local authority—in which a particular child should be dealt with. I do not say that the problem can be resolved in this Bill, although I think that improvements may be able to be made to its wording. However, it certainly looks to me as though the time is fast approaching when the Government ought to apply their mind to a code for children, even if it is only part of a code, relating to taking into care by local authorities, because I would suggest to the Committee that we cannot go on in this way.

I hope that the noble Lord will forgive me for taking a little time on this matter, but my researches into the Bill led to these extraordinary anomalies. They are all recent; they are all our fault for letting this legislation go piecemeal through Parliament, and I hope that soon we shall take the opportunity to put the matter right.

Lord HARRIS of GREENWICH

As the noble Viscount, Lord Colville of Culross, said when he opened his speech, he wrote to me on this matter—and I am grateful to him for doing so—pointing out what he believes to be inconsistencies between the varying statutory criteria upon which the magistrates' courts may act when considering whether to put a child into care. This is certainly a very wide area which, as the noble Viscount has pointed out, affects a number of Acts. It affects Section 1(2) of the Children and Young Persons Act 1969, Section 57 of the Children Act 1975 and, indeed, many totally different situations.

I do not wish to speak at length about all aspects of this wide field, in particular because, as I believe the noble Viscount reminded us, lengthy debates have taken place in this House on the subject, in particular on Section 3 of the Children Act 1975, which relates to the criteria to be applied when adoption is in question. I think also that the issues arising under Section 1 of the Children and Young Persons Act 1969 are rather different from those which arise under the present Bill. Under that provision, a child may have to be placed in the care of a local authority, not merely in his own interest but for the protection of other people. As I think the noble Viscount will agree, this raises rather different questions.

Viscount COLVILLE of CULROSS

Sometimes.

Lord HARRIS of GREENWICH

Yes, indeed. I should like to study with some care what the noble Viscount has said. A number of Government Departments are involved, and many of these issues are matters for the Department of Health and Social Security. I should like to look at this point with my right honourable friend before the next stage of the Bill. It is only fair to say that I cannot hold out any hope that we can resolve these problems in this piece of legislation. I believe that the noble Viscount suggested as much. Nevertheless, it is worth looking at the matter which the noble Viscount has raised in his speech. I shall gladly do so and if I have any news, be it good or ill, I shall communicate with the noble Viscount before the next stage of the Bill.

Viscount COLVILLE of CULROSS

Before the Question is put, I should like to thank the noble Lord very much for what he has said. May I respectfully suggest one thing which could be done in this Bill. It seems to me that "exceptional circumstances" and "welfare of the child" are not inconsistent concepts. If the noble Lord, Lord Wells-Pestell, was right in what he said a little while ago, that the theme of Section 1 of the Guardianship of Minors Act 1971 is supposed to inspire this part of the legislation, then I think that it would be helpful to make that clear, so that two Acts dealing with magistrates' courts are going along the same lines—and also going along the same lines as the undoubted jurisdiction in the Family Division when dealing with ward-ship, because they use the same criterion. For the sake of a few words, I should have thought that that might very well be worth writing into the Bill.

Clause 9 agreed to.

Clauses 10 to 12 agreed to.

Clause 13 [Powers of court to make orders for the protection of a party to a marriage or a child of the family]:

The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)

I have to call the attention of the Committee to the fact that, if Amendment No. 7 is agreed to, I shall not be able to call Amendments Nos. 8 or 9.

4.29 p.m.

Baroness ROBSON of KIDDINGTON moved Amendment No. 7: Page 15, line 8, leave out subsection (3) and insert— ("(3) Where on an application for an order under this section the court is satisfied that owing to the behaviour of the respondent it is not reasonable to expect the applicant or any child of the family to continue to live with the respondent, and that it is in all the circumstances desirable that the respondent vacates the matrimonial home, the court may make the following orders, that is to say—

1. (i) an order requiring the respondent to leave the matrimonial home;
2. (ii) an order prohibiting the respondent from entering the matrimonial home.").

The noble Baroness said: I beg to move Amendment No. 7 which stands in my name. It was very obvious during the Second Reading debate that Clause 13 in particular was generally welcomed by this House because, for the first time, it enables magistrates' courts to make orders for the occupation of the matrimonial home. If the Bill becomes law, it means that there will be three ways in which a spouse can obtain exclusive occupation of the home. It can be done under Clause 13(3) of the present Bill, or by applying for an injunction in the county court or the High Court, or by applying to the county court for an order under the Matrimonial Homes Act. However, in order to obtain an order excluding the respondent from the home under Clause 13(3) of this Bill, it has to be proved that there was actual or threatened physical violence.

We all welcome this clause because it will help enormously to protect battered wives, but it seems to me that it places too great a limitation upon the powers of the magistrates' court. I think the wording I have suggested widens the powers without weakening the Bill itself, because it would enable the magistrates' courts to take mental cruelty and mental violence into consideration when adjudicating in a domestic case. It occurs to me that, unless we rephrase this particular clause, the magistrates could find themselves in great difficulties where it could be proved that physical violence had been occasioned by a long period of mental cruelty on the part of the other person.

By re-phrasing this clause we would enable the magistrates to make a fairer judgment in the case in front of them on which particular spouse was at fault. I should very much like to hear what the noble Lord, Lord Harris, feels about this, because I am acutely aware that we want the proceedings in the magistrates' domestic courts to be as similar as possible to the other courts dealing with matrimonial cases. I would be very grateful if the noble Lord would accept my Amendment. I beg to move.

Viscount COLVILLE of CULROSS

would the noble Lord say whether or not he is going to accept the Amendment, because, if he is, it is very unfair; I would have to move manuscript Amendments to include Amendments Nos. 8 and 9.

Lord HARRIS of GREENWICH

I fear that I am not going to recommend the Committee to accept this Amendment. The noble Baroness has pointed out that this Amendment would very substantially widen the powers of the court. We take the view that it would widen those powers to an undesirable degree. We believe that the powers would, quite bluntly, be too draconian. Partly, also, we do not think that the effect would necessarily be what is intended.

In the Bill, as introduced, the issuing of a domestic exclusion order is linked with violence and threats of violence. Those are the criteria, plus, of course, a danger of physical assault. The Amendment of the noble Baroness would remove this restriction and replace it by a much lesser requirement to show unreasonable conduct by the respondent. This would be a greater power than the High Court possesses under the Domestic Violence Act, and, I suggest, a greater power than should be given to magistrates' courts. I suggest that problems of this kind, where violence is not involved, should be left to the High Court or county courts to be dealt with under the Matrimonial Homes Act.

As I indicated when I began my speech, we do not think that the provision recommended by the noble Baroness would always produce the right result, or the one that she would favour. It sometimes happens that the spouse who has behaved unreasonably is nevertheless the one who is better fitted to look after the children, and should, therefore, be left with them in the matrimonial home. For those reasons we are not convinced that the Amendment, well intentioned though it is, would improve the Bill. I very much hope the noble Baroness will agree not to press the Amendment.

Baroness ROBSON of KIDDINGTON

I am grateful to the noble Lord for his reply. I will read carefully what he has said and consider how to proceed at the next stage of the Bill. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.34 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 8: Page 15, line 22, leave out ("both") and insert ("more").

The noble Viscount said: Perhaps I may, with the leave of the Committee, speak to Amendments Nos. 8 and 9 together because No. 8 is only a paving Amendment. I look at this provision and have in mind the sort of circumstances with which the courts would be confronted. They would have a frightened wife and a violent and angry husband, or, I suppose, a terrified husband and a most terrible virago of a wife, and the person who is the unpleasant character in either case seems to me, if I may use a phrase that perhaps has not normally appeared in Hansard, to have picked nits.

If the magistrates say, "Right, out you go", or "Right, you are not going back", that is going to be taken literally. If "Right, out you go" means that you shut the door, having first changed the locks, what good does it do to the other party? I do not see how the person in whose interests the exclusion order has been granted is going to get into the matrimonial home. My Amendment simply enables the court to be quite explicit about it; not only shall the respondent get out but he shall let the applicant get in and stay in. I would have thought that in the circumstances it was worth spelling this out. I beg to move.

Lord HARRIS of GREENWICH

Let me begin by saying that I have some sympathy with the Amendment, before saying that I fear that I cannot recommend the Committee to accept it. This is a difficult matter and the noble Viscount has, as always, made a moderate and considered statement. The basic argument in favour of these Amendments is that the powers given to magistrates' courts for the protection of wives and children should approximate as closely as possible to those given to the High Court and county courts by the Domestic Violence and Domestic Proceedings Act 1976.

However, we must recognise, as the Law Commission did, that magistrates' courts are different in both constitution and procedure. It is true, certainly, that the Law Commission do not refer in their report to the 1976 Act, but they did expressly consider the matter in relation to the power in Section 1 of the Matrimonial Homes Act 1967, and they also referred to the comment of the Select Committee on Violence in Marriage, in another place, that they did not believe that magistrates' courts should have power to order the transfer of any interest in the matrimonial home". They recognised that in one situation, namely, where a wife has fled from home because of her husband's violence, it might be thought that magistrates could usefully be given power to help the wife to get back into it, but they concluded that this jurisdiction was better left to the High Court and the county court.

Of course, it may be said that merely restoring the wife or children to the matrimonial home does not of itself constitute a property right, and theoretically, of course, this is true. But if a person is turned out of a house or flat and another one is put into it, this really does amount to a decision as to property; and I think, with the Law Commission, that there is a difference between doing this and ordering one spouse to leave the matrimonial home and leaving the other spouse there. The Domestic Violence Act has given, and I am bound to say is continuing to give, a fairly substantial amount of trouble in the courts, and I think it would be going too far to impose on the magistrates the burden of coping with these very difficult cases in addition to those they will already have to deal with under the clause as it currently stands. For that reason I do not think I can recommend the noble Viscount's Amendment to the Committee.

Viscount COLVILLE of CULROSS

I am sorry about that, because I think in part the reasoning that underlies that rejection is in itself mistaken, and I will explain to the noble Lord why. The property implications were one of the things I wanted to ask about anyway. The noble Baroness in the Chair may note that I do not need to raise this on the Question, That the clause shall stand part?, because I will do it now. I understood that one of the restrictions being imposed on the magistrates was that they were not to go into property matters. But it is already inherent in the wording of this clause.

I will explain to the noble Lord what my fears are. There is no provision in the clause which limits the period of the order. It may, therefore, run for years and years. If it were to do so, let us take the example of a council flat. The respondent fortunately had gone and therefore the order was made under Clause 13(3)(c)(ii), prohibiting him from going back in again, leaving the wife and children in the flat. I am led to believe that, after a certain length of time, at any rate some housing authorities would, in those circumstances, be prepared to transfer the tenancy of that flat to the wife. That would not, of course, be anything directly to do with what the magistrates had said, but it would be the necessary implication, at any rate in some areas, of what they had done. Therefore, if that were so—and I am told that I am right about this—we already have property implications built into the Bill. I wonder whether the noble Lord, Lord Harris of Greenwich, will look at that matter?

When discussing these sort of provisions in Committee, we are always faced with the fact that there is at least one other Act containing similar provisions, and one must not destroy the comity of legislation by inserting an extra provision in this Bill which is not in the others, particularly when all the others are on appeal to the House of Lords, and so on. If we do not take our opportunities when we have legislation before us and for some reason it is discovered that there is something wrong with the other Acts, the other Acts may be amended; but then it will not be suitable to put in an Amendment about magistrates. So it goes on untidily year after year, and we never get the matter properly assimilated.

The noble Lord sees the point of what I am doing and if there is really something in this, could we not insert something specific about property, that the effect of this order shall not be in any way to tinker with property rights; or specify in some way so as to guard against the fear of both the Law Commission and the Government on this matter? We want practical legislation and we want legislation which will deal with the problem. I entirely accept that not only should the magistrates not deal with property, but they should—and this is my other point—know what they are doing and make sure that they do not, in fact, by way of their order, have any effect on property rights. It would be a positive advantage to write into the Bill something to the effect that any order under this clause would not affect property rights, and then they would at any rate be safeguarded and we might be able to deal with the true merits of the situation.

I hope that that is a constructive way of looking at the matter. If the noble Lord would look at it again I should be very grateful. In the meanwhile, I beg leave to withdraw Amendment No. 8.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

4.45 p.m.

Lord PONSONBY of SHULBREDE

I should like to move the deletion of both this clause and Clause 14. Disquiet about this clause has already been expressed by the noble Baroness, Lady Robson of Kiddington, who sought a particular way to try to remedy the faults which she saw in it. I am adopting a different line from that adopted by the noble Baroness because I believe that as in fact the clause is unsatisfactory, it would be better if it did not stand part of the Bill.

From reading the Law Commission Report relating to Clauses 13 and 14 one gets the impression that while the Commission was seized of the problem of enabling protection of the home to be given quickly and by a simple and inexpensive procedure, it was doubtful about the desirability of giving magistrates the necessary power. For example in Paragraph 3.22 it refers to the drastic nature of this order from the husband's point of view". At Paragraph 3.30 it says: The need for safeguards is especially evident in the case of the exclusion order, in view of its far reaching effects". Indeed, when the noble Baroness moved her earlier Amendment, my noble friend Lord Harris of Greenwich, said, in reply, that he was very doubtful about the wisdom of extending the powers of magistrates in the way in which the noble Baroness had asked in order to bring this particular clause into line with the procedure in the county courts. At the time that the Law Commission prepared its report, the Domestic Violence and Matrimonial Proceedings Act 1976 had only recently been introduced as a Bill in the other place.

The fact is that, despite what has been said, the Bill provides a remedy. It enables an applicant to go speedily to any county court without filing a divorce petition—in fact not just to the county courts with divorce jurisdiction, as referred to in Paragraph 3.15 of the Law Commission Report, but to any county court. Therefore, the availability of this particular remedy is very much wider than in fact is referred to in the Law Commission Report.

My noble friend Lord Harris of Greenwich referred to some of the difficulties which had been encountered in the administration of the Domestic Violence and Matrimonial Proceedings Act, but those difficulties really relate to the problem of a man and a woman who are living together and not to the problem of a husband and wife. The position at present is that injunctions are being granted to the spouse who most needs the home—generally the spouse who is caring for the children—once it has been shown that the husband and wife cannot be expected to live together.

For those reasons and in view of the fact that the remedies which the Law Commission was not able to consider are working satisfactorily, I believe that it is unnecessary to include these two clauses. Also, as has been pointed out by the noble Baroness, Lady Robson of Kiddington, the remedies proposed are inferior to the situation and more difficult to obtain than in the county courts. Moreover, I would have doubts—indeed the noble Lord, Lord Harris of Greenwich, referred to them—as to whether it is altogether wise to give these additional powers to the magistrates' courts. For those reasons, it might be more satisfactory in the long run if these powers remained in the county courts. I beg to move.

Lord HARRIS of GREENWICH

I hope that my noble friend Lord Ponsonby of Shulbrede will, on reflection and after hearing what I have to say, agree not to press his objection to this clause and the next one. He began by saying, and undoubtedly wholly accurately, that the noble Baroness, Lady Robson of Kiddington, had expressed disquiet about these provisions. Of course, her disquiet was that they did not go further—not that they existed at all. The noble Baroness made it clear—as she did on Second Reading—that she is a firm supporter of this provision.

As my noble friend has said, the situation is that Clause 13 introduces two new and undoubtedly most important powers for the protection of battered wives and children: powers, first, to grant personal protection orders to prevent violence or the threat of violence and, secondly, domestic exclusion orders to exclude a violent man from the matrimonial home. I accept at once that these are new and far-reaching powers for magistrates' courts. However, the Government think that they are needed, and they are supported in this opinion by the Law Commission and virtually every other organisation which we have consulted. We all read with distressing frequency in the Press of the plight of battered wives and their children. This Bill offers us an opportunity to mitigate in some measure their fears and anxieties. I accept, of course, that the Domestic Violence and Matrimonial Proceedings Act 1976 provides a remedy by way of injunction, but I suggest that we should reinforce this by the present provisions, bearing in mind the greater accessibility—frankly, the far greater accessibility—of the magistrates' court.

As I mentioned earlier, there has been much publicity and favourable comment on it in the Press and elsewhere, and a general welcome was extended to it by a formidable array of organisations which we consulted on this subject. I have a full list of them here, but perhaps I might mention in particular the Law Society, the Magistrates' Association, the Trades Union Congress, the Justices' Clerks' Society, the National Council for One Parent Families, the National Marriage Guidance Council, the Methodist Church (Division of Social Responsibility) and many other organisations of that character. Indeed, as I have already pointed out, the one debate that we have so far had on this particular matter was on a proposal to extend the powers rather than in any way to limit them.

My noble friend Lord Ponsonby of Shulbrede perfectly rightly drew attention to the relationship between the Law Commission's consideration of this matter and the passage of the Domestic Violence and Matrimonial Proceedings Act 1976. But, of course, as I am sure my noble friend would agree—and, indeed, I think he accepted this point when he spoke a few moments ago—the Law Commission was able to, and did, take account, of the domestic violence legislation, although, as he rightly said, it was not then on the Statute Book but at the stage of being a Bill on its way through Parliament. He will no doubt have seen a reference at paragraph 3.17 on page 26 of the Commission's Report which says: we do not think that the case for the reforms which we are proposing in this Part of our report would be in any way diminished. The Bill [the Domestic Violence and Matrimonial Proceedings Bill] provides some means of dealing with domestic violence; we are concerned with others". That was the opinion of the Law Commission; it took account of that particular piece of legislation.

As I indicated a moment or two ago, I believe that these proposals are right in themselves. We have here a major problem in our society of increasing violence both against wives and sometimes against the children. I think that these powers have been widely welcomed by a very large number of representative organisations, and I believe that they deserve the support of the Committee.

Clause 13 agreed to.

Clause 14 [Supplementary provisions with respect to orders under s. 13]:

On Question, Whether Clause 14 shall stand part of the Bill?

Lord PONSONBY of SHULBREDE

I made on the previous clause the remarks that I wished to make on this clause.

On Question, Clause 14 agreed to.

Clause 15 agreed to.

Clause 16 [Variation and revocation of orders for financial provision]:

[Amendment No. 10 not moved.]

Clauses 17 and 18 agreed to.

Clause 19 [Supplementary provisions with respect to variation and revocation of orders]:

4.54 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 11: Page 23, line 8, leave out ("defendants") and insert ("respondents").

The noble Viscount said: This and Amendment No. 12 go together. So far as I can see, everywhere else in the Bill the respondent is a respondent except in Clause 19, where he is a defendant. I should have thought there was no reason for this, and I think we should put it right. I beg to move.

Lord HARRIS of GREENWICH

We agree with the noble Viscount.

On Question, Amendment agreed to.

Viscount COLVILLE of CULROSS moved Amendment No. 12: Page 23, line 10, leave out ("defendants") and insert ("respondents").

On Question, Amendment agreed to.

Clause 19, as amended, agreed to.

Clauses 20 and 21 agreed to.

Clause 22 [Reconciliation]:

Viscount COLVILLE of CULROSS moved Amendment No. 13: Page 24, line 43, after ("2") insert ("or 6").

The noble Viscount said: I personally did not want to enter into a large discussion about reconcilation. Indeed, we have already had one debate on it earlier when the noble Viscount, Lord Hanworth, moved the first Amendment. I have only one small point to make. Under Clause 22 the court is required, where it has what I might describe as a contested application under Clause 2, to consider whether there is any possibility of reconciliation. It occurred to me that we should try to encourage by Statute attempts to reconcile so far as we can, particularly where this time we have the agreement of the Government that the Probation Service can help, because under this clause as it stands, it can.

I should think it would be extremely rare that under a consent procedure under Clause 6 of the Bill reconciliation might arise, but it is not inconceivable. If we require the court to consider, in perhaps 99 cases out of 100 they will consider the matter and dismiss it as being irrelevant, but why deprive them of the opportunity in that hundredth case to see whether there is some spark left in the marriage or in the cohabitation, and of getting a report if they think fit? At the moment they will be debarred. I do not suppose that the power will be used very often, but it seemed to me that it was just worth asking the noble Lord whether the Government could not stretch the probation resources to just that little further extent I beg to move.

Lord HARRIS of GREENWICH

The noble Viscount is a persuasive advocate, but I am afraid that with my responsibilities for the Probation Service—and I cannot recall whether he had those responsibilities when he was Minister at the Home Office—

Viscount COLVILLE of CULROSS

No.

Lord HARRIS of GREENWICH

That is, no doubt, why he is proposing this Amendment. However, I fear that I must resist this Amendment. The Amendment would require the court to consider the possibility of a reconciliation even if the application for an order was made with the consent of both parties. I certainly listened with care to what the noble Viscount suggested and noted the arguments which he put forward. However, I must point out to the Committee that the Law Commission did in fact consider this particular possibility, and expressly rejected it. The relevant paragraph—paragraph 4.12—appears on page 37 of their report, where they expressed the view that: To oblige the court to consider the possibility of reconciliation would clearly be inappropriate in an application for a maintenance order by consent". It seems from their other comments that they formed this view because a couple who have agreed to apply for a consent order must already have considered calmly and rationally whether they should part, and that an attempt at reconciliation would therefore rarely, if ever, succeed; and secondly, the attempt would merely delay the making of the order they both wanted.

I think that I should add a few words on the resources of the Probation Service. As the noble Viscount may be aware, and as many in the Committee will certainly be aware, the size of the Probation Service has been pegged at the level it attained in September 1976. At that time it was under a substantial amount of pressure to meet the various existing demands which then confronted it. That being so, I am afraid that I do not think it would be reasonable to ask that service to take on yet another responsibility.

One of the problems which we are facing at a time of increasing crime is that inevitably the responsibilities of the Probation Service for work in the criminal area are, of course, increasing, and increasing significantly; at the same time, the amount of civil work also is increasing. I must make it clear that it is the view of the Government that the principal responsibility—the first priority of the Probation Service—must necessarily lie with its responsibility for its work for offenders in the criminal courts.

That is not to under-estimate the value of some of the work which the Service does in other respects. But, at a time when the pressure of rising crime is a matter of which we are all well aware, I do not think it would be right to accept an additional burden on the Probation Service. For that reason, though I know the motivation of the noble Viscount is, as always, benevolent, I fear I could not recommend the Committee to accept this Amendment, and I therefore very much hope that he will not press it.

5.1 p.m.

Viscount COLVILLE of CULROSS

I accept that the Committee would accept the judgment of the noble Lord about what the Probation Service can take on. I put down this Amendment because, with the greatest diffidence, I did not think I agreed with what the Law Commission said. People are infinitely varied and sometimes very fallible, and, if the parties get to the court with what they think is a consent order and one of them looks as though he or she is really not quite sure about it, are the magistrates bound to confirm that order that day? If the noble Lord could tell me this it would help: if a consent order is brought to them under Clause 6, can they, as I suppose, adjourn? Is it the case that they do not have to give the order that day, but can adjourn with a friendly word to the person concerned? If that is possible, it may be that there is no necessity to write it into the Statute. Can the noble Lord answer that, as it would be useful to have it on the record?

Lord HARRIS of GREENWICH

I think the answer is undoubtedly, yes, but I shall certainly confirm that point. If I am wrong in my assumption, I shall let the noble Viscount know, but my assumption is that the situation is as described.

Viscount COLVILLE of CULROSS

I am grateful to the noble Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The DEPUTY CHAIRMAN of COMMITTEES

I think I did not put the Question, That Clause 16 stand part of the Bill? I shall put that now.

Clause 16 agreed to.

Clause 22 agreed to.

Clause 23 [Refusal of order in case more suitable for the High Court]:

5.3 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 14: Page 25, line 19, after ("refusal") insert ("or may adjourn the application;").

The noble Viscount said: The noble Lord is going to tell me that this Amendment is unnecessary because they can adjourn anyway, but I wanted to make sure that this rather strange proceeding—and I know that it is the same as what we have already—is explicable to those looking at the Bill. I imagine that, at any rate on some occasions, the object of the exercise is that the magistrates should adjourn the order to see what the High Court does. If there are concomitant proceedings going on in both the magistrates' court and the High Court, I should have thought that it would be wrong, and indeed irresponsible, of the magistrates' court to come to a conclusion when the Family Division was also dealing with the matter. Therefore, I had it in mind that the magistrates might want to adjourn the proceedings in their court to see what the High Court would do, and that it might be unnecessary for them to do any more; or alternatively the High Court, as it can, could say that it considered it better that the magistrates should proceed and then the adjourned hearing could resume later. I am not sure that I have got the point of Clause 23. If the noble Lord can clarify this, so much the better.

There is also a minor point on hearsay, to which I am coming later on. Suppose the clerk of the magistrates' court says to the justices, "No, you cannot have that report in evidence before you because it is hearsay", and there are proceedings going on in the High Court where the report is admissible. The magistrates might say, "All right, Mr. Clerk, if that is what you say, we are going to adjourn these proceedings and let the High Court have jurisdiction because then it can have all the evidence before it that you are denying us." It occurred to me those two points were worth raising. I beg to move.

5.6 p.m.

Lord HARRIS of GREENWICH

Clause 23 of the Bill re-enacts the existing provision in Section 5 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 which enables a magistrates' court, where it thinks a case would be more conveniently dealt with by the High Court, to refuse to make an order. The clause makes a slight change in the wording of this provision, in that under the 1960 Act the court is given a discretion to refuse an order where it is of the opinion that the case would be better dealt with by the High Court, whereas under this Bill it is required to refuse an order. The reason for the change is to bring the drafting into line with a corresponding provision in guardianship legislation. It makes little difference in practice, since if the court has formed the opinion that the case would be better dealt with by the High Court it is unlikely that it would want to deal with it itself, as the noble Viscount made clear when he proposed his Amendment.

The Amendment made to Clause 23 would introduce a power enabling the court to adjourn. I do not think that this power is necessary, and I am not sure whether any object would be served by putting this into the Bill. A magistrates' court has power at any stage in matrimonial proceedings to adjourn if it thinks fit, without any specific provision being made in the Bill to that effect. If, however (after adjournments or indeed otherwise) it forms the opinion—to quote Clause 23— that any of the matters in question between the parties would be more conveniently dealt with by the High Court", then I would suggest that that is an appropriate juncture for the court to refuse to make an order, and that the court having formed that opinion no purpose is served by an adjournment at that stage. It would form the view that the thing could more satisfactorily be dealt with in the High Court. If the court considers that a case may fall into this category but feels that it requires further information, then the case is not one falling within the terms of the clause. If the court has a doubt as to what it should do, it may adjourn anyway and then at the adjourned hearing make up its mind finally as to what appropriate course of action to take. If it then concludes that any of the matters in question would be more conveniently dealt with by the High Court, then Clause 23 would apply. In that particular situation I do not see why the court should not say so forthwith, and just say that it is better for the High Court to deal with this matter. I hope that this answers the point which I know the noble Viscount has expressed and is the thought behind this Amendment, and explains why we believe it to be unnecessary.

There is one additional point in order to forestall any queries on this particular matter; that is, the sort of case where the power in Clause 23 is most likely to be useful is a case where the parties' assets are pretty considerable. That is the most likely type of case to arise. I think I would carry the noble Viscount with me on that point. In such a case the magistrates' court might well think that the more extensive powers of the High Court to order financial provisions should be allowed to operate. I think that that is the most appropriate way of handling that matter.

Viscount COLVILLE of CULROSS

I do not know whether anybody ever reads our proceedings, but if they do and they happen to be magistrates faced with a decision to be made under Clause 23, I have a feeling that the noble Lord's speech may be very helpful to them. I am grateful to the noble Lord and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 [Powers of High Court and county court in relation to orders under ss. 2, 6 and 15]:

Lord HARRIS of GREENWICH moved Amendment No. 15: Page 25, line 26, leave out from ("Act") to ("an") in line 27 and insert ("for the making of periodical payments, (c) an order under section 10(1)(a) of this Act, or (d)").

The noble Lord said: This is a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Enforcement etc. of orders for payment of money]:

5.10 p.m.

Baroness ROBSON of KIDDINGTON moved Amendment No. 16: Page 27, line 27, at end insert ("but the jurisdiction given by section 5 of the Debtors' Act 1869 to commit to prison a person who makes default in payment of a debt or instalment of a debt due from him in pursuance of an order or judgment shall not be exercisable by the Magistrates' Court in respect of any maintenance order enforceable through the Magistrates' Court.").

The noble Baroness said: I sincerely hope the noble Lord, Lord Harris of Greenwich, will be able to receive this Amendment rather more happily than my previous one. This Amendment brings the procedure for the enforcement of maintenance debts in magistrates' courts into line with the procedure in force for civil debts. Noble Lords will remember that in 1970 imprisonment was abolished for all civil debts, except tax and maintenance. The Finer Committee was united in recommending that imprisonment should be abolished for maintenance debts as well.

As a magistrate myself, I am aware of the enormous amount of work that devolves on the clerks of magistrates' courts as a result of the imprisonment clause. It is both expensive and futile, and in my view benefits neither the family nor the community.

No doubt the Committee is familiar with the form which is sent to a defaulter who has a suspended sentence over his head for the non-payment of maintenance. He returns the complaint form that is attached to the warrant of commitment, and in the result there must be a second sitting of the magistrates' court, where the defendant claims he is no longer able to pay the sum he had originally contracted to pay. We listen, we probably reduce the weekly sum and he goes away. For three weeks probably he pays; then he stops paying and the same procedure is gone through all over again, and this is costly in time and money for magistrates' courts.

I do not know, but I have a feeling that the incidence of civil indebtedness has not increased enormously since the abolition of imprisonment, and this is something we should consider most seriously as relating to maintenance orders. A man who has been in prison is very unlikely easily to get a job, when he comes out, particularly in present circumstances, so his chances of paying his normal maintenance are even less once he is released from prison. The cost of imprisoning a man is about £96 a week; and although we go through this costly procedure of giving the defendant chance after chance to put his life in order, we still imprison—I believe this is the Home Office figure for 1976–3,252 men for the non-payment of maintenance.

We are spending a lot of money in that way, and noble Lords will notice that my Amendment does not deprive magistrates' courts of other means of enforcement, such as the detachment of earnings; it is purely the prison sentence which I believe does not benefit either the recipient or the community as a whole. In the really hard cases, of persistent defaulters of payment of maintenance, a prison sentence is no atterrent whatever; the man is quite happy to go to prison to have his maintenance order wiped off the slate. I therefore hope that Lord Harris will receive this Amendment with some sympathy.

5.14 p.m.

Lord HALE

I listened to what the noble Baroness, Lady Robson of Kiddington, said with a much lighter heart than I have listened to anything else that has been said today. She referred to the Debtors' Act 1869 and correctly referred to the Amendments made in 1970. The 1869 Act was of course the great bulwark of the constitution; it was the climax of John Howard's campaign and the work done by all those noble people who worked in the prisons. "We are not going to lock people up purely for debt", they said. It was a remarkable measure because it actually said that. Of course there were exceptions, no doubt quite a lot, but the opening legislation and the final Act contained this declaration of human rights: "You can imprison people for fraudulent debt, but you cannot imprison them for debt qua debt".

That had an effect on the world. I was taught as a law student—indeed, I was taught it as a politician—that we in this country do not imprison people for debt, but that we do imprison them for not complying with an order to pay a debt; and a very great number of people were at that time going to prison. As the noble Baroness said, it was always a futile procedure in maintenance cases. The bad husband—it might have been the bad wife, but it was nearly always the bad husband in those days; it was nearly always the husband who was being sued—just moonlighted and probation officers and policemen were employed for long periods trying to find such men.

Among other things that happened, the then Lord Chancellor in 1964 set up a committee to look into the question of county court debt and brought in this question in our terms of reference. At a very early stage of the proceedings it was suggested to us that Her Majesty's Government would like to know whether we could come to a provisional conclusion on the subject of imprisonment for debt. Having made our inquiries, we decided—it was a silly thing to do of course, and we would not have done it had we not had a silly question from the Government—that we were in favour of abolishing imprisonment for debt.

I will not trouble my noble friend Lord Harris of Greenwich today about the figures; if he will permit me, I will table a Question seeking the figures in the form I want them, to try to find out what is happening today. Nevertheless, I beg leave to raise one point with him. While the committee of which I spoke was considering the matter—remember, it was a strong committee and an extremely experienced one, including among its membership a very fine High Court judge with previous county court experience, a registrar and people of that calibre—we checked up for ourselves, and I went to Strangeways prison to try to find out exactly what was happening in Oldham. I was told, "They do not imprison people for debt in Oldham", and I replied, "They have damn well got to in certain circumstances". I was assured that with a bit of advice, a bit of encouragement and a bit of pointing out the futility of it all, it was not necessary. Indeed, in our report we said, in effect, "While people do not sue for debt in Oldham, unfortunately if somebody comes along with a cheque book and says, 'I will buy your old debts from you for four bob in the pound', then of course it is a different matter."

Perhaps I am digressing from the strict terms of the Amendment. I mention these points, however, to express my worry. I sometimes worry a lot about the able gift of my noble friend Lord Harris to expound mysteries with such clarity that one imagines everything will work out in the end. I listened to him talking about orders regarding property and I wondered what would happen if he had a house like mine, with a few years to run on a 99-year leasehold, with goodness knows how many thousands of pounds needing to be spent if it is ever to be got into condition again to prevent it falling down, and which, if I ever get it into good condition again, will, under the Crossman legislation, have a burden of repair of £3,000 or £4,000 a year. What is that going to do for a battered wife, and how do you deal with that? There are problems. One does not like to produce the odd problem. This is not the odd problem: this is a problem which applies throughout the district in which I live, which is a pretty considerable part of London, and in many other parts.

So I hope we are going to hear what the clear intention is about this. I do not want to sound like a reactionary, although I am inclined to think I am a little. Bernard Shaw wrote an entertaining play about a husband and wife who read a pamphlet on the legal dangers of getting married, including actions for tort, libel and so on. The burden then fell on the husband, although some of this has now been altered; but I am inclined to think it might be beneficial to everything except, perhaps, the Stationery Office's balance sheet if a copy of this Bill, when it is an Act, were to be given to everyone who calls to publish the banns, and if an up-to-date book on property law and leasehold law could be placed in the vestry.

Lord HARRIS of GREENWICH

Let me begin by saying that I am looking forward to the occasion when I shall be able to say to the noble Baroness that I can accept one of her Amendments, because she has been a formidable ally on this Bill, as I was saying when she was out of the Chamber a few moments ago, when we were discussing Clause 13 of this Bill; but I am afraid I can go only a very limited way to meet her. She asked whether I would receive the Amendment with sympathy. I can certainly do it with sympathy, but, I fear, in no other more meaningful way. I say that with great regret, because if there was any way in which one could improve the most unsatisfactory situation in our local prisons, where many of these people inevitably have to go, I would be firmly in favour of doing so. But I wish to explain to the noble Baroness why, in our view, this Amendment would not in fact be an improvement as far as this Bill is concerned.

Our advice is that the threat of imprisonment—not imprisonment itself, but the threat of imprisonment—is in many cases the only way of enforcing payment, and that, unhappily, it would not be realistic to abolish this particular power. I should emphasise at the outset that a maintenance defaulter is committed to prison only as a last resort. The magistrates must first have inquired, in the defaulter's presence, into whether the default was due to his wilful refusal or culpable neglect, and may not commit him to prison if it is of the opinion that the default was not so due. The court is also required to consider, before imposing imprisonment, whether an attachment of earnings order should be made. That is the 1952 Magistrates' Courts Act. The maximum term of imprisonment which may be imposed, as the noble Baroness is no doubt aware, is six weeks.

It is true, certainly, as the noble Baroness said, that the Finer Committee on One-Parent Families recommended that imprisonment should be abolished. That is perfectly true; but the Government, unhappily, are unable to accept this conclusion. The result of an informal survey carried out by the Home Office three years ago showed that, contrary to what the Finer Committee thought, the threat of imprisonment is highly effective as a means of enforcement. The survey, which was carried out in six magistrates' courts, showed that in nearly 90 per cent. of the cases in which a suspended committal warrant was issued—that is, a warrant for committal to prison unless the default is remedied or good cause is shown—the defaulter did not actually go to prison. It is safe to say that in most cases this was simply because he paid up. What we say to the Committee, quite bluntly, is that without this power we do not believe that, in many cases, the defaulter would pay up. Therefore, one would start to have very substantial sums of money owing to wives who have the responsibility of bringing up small children, who would in fact receive no money at all—because, unhappily, there are men who take a very light view of their responsibilities, as we all know.

If imprisonment were to be abolished, the only remaining sanctions available to magistrates' courts would be attachment of earnings and distress on goods. Attachment of earnings is certainly a useful sanction against a man who is in regular employment—that is a very important qualification—but it is not available against men who are self-employed, and it is highly ineffective against men who frequently change their jobs (many of them, I may say, doing so entirely in order to avoid paying this money to their wives) or who are unemployed or in part-time work of one sort or another. The remedy of distress on goods is not always available to magistrates' courts because, quite bluntly, they do not have the staff to operate the procedure themselves. If imprisonment were abolished for maintenance default there would be no real sanction left in many cases, and it seems likely that, in that situation, very little money would be recovered, with consequent substantial hardship to the wives and to the children involved.

For that reason, I would ask the noble Baroness not to press her Amendment. I very much agree with her intentions in this matter, but, for the reasons I have given, I believe that an Amendment of this character would in fact, quite unintentionally, cause a great deal of distress to people who are in fact some of the more under-privileged of our fellow citizens.

Lord JACQUES

As a magistrate of long-standing, now retired, I should like to confirm wholly what the Minister has said. The threat of imprisonment is very effective in the courts, and it leads to the courts receiving a lot of money which they would not receive if they did not have this power to imprison. Attachment orders are all right, but, in so many cases, immediately there is an attachment of earnings order the individual changes his employment, especially in periods of full employment, in order to avoid it, and he has to be chased round to see where he is then working. The threat of imprisonment brings in a great deal of money, and we would be disarming magistrates in a very serious way if we took away from them the power to imprison.

Baroness WARD of NORTH TYNESIDE

Perhaps unusually, I think, I should like to support the Minister this afternoon in the statement which he has made in favour of giving to magistrates the power to imprison. I have seen some terrible cases in which men have refused to pay maintenance to their wives, and it can really distress wives enormously. I certainly should not like to accept an Amendment of this kind without having much more knowledge than I already have. I have not obtained my knowledge as a magistrate but from being 38½ years in another place dealing with the problems of constituents. So I am grateful to the noble Lord this afternoon for refusing to accept this Amendment. I noticed, of course, that he said, as always, that he did it with sympathy. I do not know that I have all that sympathy. If the noble Baroness who moved this Amendment had had as much experience as I have had of the difficulties which arise for women whose husbands refuse to pay maintenance and then pop off and cannot be found, I doubt whether she would have had the courage, perhaps, to move the Amendment. Therefore, today, I happen to be supporting the Government.

Baroness FAITHFULL

Very briefly, as a social worker I should like to support the noble Baroness, Lady Robson. My experience is that no good comes from sending men to prison for debt; and, despite what various magistrates have said, I have not found that it has been a deterrent. I was going to speak at a later stage, but perhaps I could speak now instead. Looking at figures for various places throughout the country, I am interested to see that courts vary in their use of the Attachment of Earnings Act 1971. I know that these orders apply to possibly only one third of the men. Although they apply to a considerable number of men, if a man is out of work or moving his job, they do not apply. I wonder whether the Minister could let us know why some courts use the attachment of earnings orders to a great extent and others do not, and whether, if these were used more, there would be less imprisonment. I wish to support the noble Baroness, Lady Robson.

5.30 p.m.

Lord HARRIS of GREENWICH

May I deal with the point which the noble Baroness has just raised, and in doing so correct her, though on this occasion with a great deal of caution because I note that I have the noble Baroness, Lady Ward, on my side on this issue, which I think is the first occasion in nearly four years in this House that that happy situation has arisen. I did not say that I had sympathy with the effect of this Amendment; though I had sympathy—a very obvious point which the noble Baroness pointed out—with the extremely overcrowded state of our local prisons. Anyone who has responsibility for the Prison Service, as the noble Viscount, Lord Colville of Culross and I have, is anxious to take any steps possible to reduce the grossly overcrowded conditions in our prisons, particularly in local prisons where these people go. Anybody in that situation would express sympathy with the noble Baroness. I did so earlier and I do so again. Unhappily, for the reasons I have given, I cannot recommend the Committee to accept the Amendment.

On the point raised by the noble Baroness, Lady Faithfull, an attachment of earnings order is undoubtedly a useful means of extracting money from sonic maintenance defaulters, but again the emphasis is on "some". It is used quite extensively by the courts, but inevitably different courts apply the law in different ways. It is difficult for a Minister, or indeed a lawyer or even, no doubt, a magistrate, to be absolutely certain why some courts are more likely to use a particular power in a particular way. I cannot enlighten her on that aspect of her question.

In 1976, which is the last year for which figures are available, magistrates' courts made 1,734 attachment orders to enforce payments under the matrimonial orders. In the same year magistrates' courts granted 6,895 matrimonial orders. It is fair to say that some of the attachment orders may have been made in respect of maintenance orders made by higher courts which were registered for enforcement in magistrates' courts. I think that is the answer to the question put by the noble Baroness. As I say, I do not want to repeat the argument I have already put to the Committee, but unhappily we are not in a position to recommend the Committee to accept the Amendment.

Baroness ROBSON of KIDDINGTON

I am grateful to the noble Lord, Lord Harris of Greenwich, for his sympathy and also to the noble Baroness, Lady Faithfull, for her support of my Amendment. I still find it difficult to accept that this Amendment is not correct. As has been pointed out by the noble Baroness, Lady Faithfull, the attachment of earnings order, if properly used, is a powerful weapon in the hands of magistrates. It is my personal experience that the imprisonment threat or the suspended sentence is used by magistrates' courts basically on the persistent defaulter, the particular person who, I believe, does not mind going to prison in order to have his debts wiped out.

The argument is brought out that we do collect some money by having the prison sentence as a threat. I think it is quite a small sum of money because they are likely to pay for three or four weeks and then default again. It is quite a small sum of money compared with the cost to the community and, in many cases, the destruction of a person who goes to prison, so far as his capacity to earn a living is concerned. I am conscious of the fact that there is not at the moment enough support in this House for my Amendment. I shall read carefully what has been said and reserve my right to bring it back at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clauses 28 to 47 agreed to.

Baroness MACLEOD of BORVE moved Amendment No. 17: After Clause 47, insert the following new clause—

"Appeals against affiliation orders to lie to Family Division

" . In section 8(1) of the Affiliation Proceedings Act 1957 as amended by section 56 of the Courts Act 1971 (which provides for appeals against affiliation orders to lie to the Crown Court) for the words "the Crown Court" there shall be substituted the words "the Family Division of the High Court".".

The noble Baroness said: I beg to move this Amendment. It seems to me and to several of my colleagues, including my learned clerk with whom I have been in contact, that in the rare exceptions—and they are very rare so far as my figures are available—of affiliation proceedings in a magistrates' court being taken to appeal, now that we have an excellent Family Division of the High Court, it would be right for that Division to hear the appeal rather than the Crown Court. The Crown Courts are full of wise and expert men, but I would suggest that they do not have the expertise of the Family Division of the High Court. The noble Lord, Lord Harris of Greenwich, will quickly tell me whether this is in order. There are so many laws, in this country today, about children and the problems affecting children that may be I have put this out of order. I am certain that the noble Lord will enlighten me.

Viscount COLVILLE of CULROSS

I do not want to spoil my noble friend's Amendment, but if this is the inroad in appeals from the civil jurisdiction of the magistrates, then I can think of lots of other jurisdictions of a civil kind which the Crown Court hates to have to deal with and complains bitterly when they come before it. I suspect that this is only the tip of a very large iceberg.

Lord HARRIS of GREENWICH

One if the pleasures of listening to the noble Viscount is that, although it is four years since he left the Home Office, he makes very good Home Office points, and he anticipated one of the points of substance which I was going to put to the noble Baroness, Lady Macleod of Borve. In fact, the effect of the Amendment would allow appeals in affiliation cases to go to the Family Division of the High Court instead of, as at present, to the Crown Court. I accept that there are arguments for saying that affiliation appeals should be heard by the High Court. Certainly, also, there are arguments the other way, and I would not regard it as self-evident that the present avenue of appeal to the Crown Court is unsatisfactory, though no doubt the Crown Court would find it quite attractive to lose their jurisdiction, in some of these matters. In particular it affords an appeal by way of re-hearing with lay justices involved, which I think is valuable particularly in cases of this sort.

However, there are two reasons why it is undesirable to attempt to deal with these matters in the present Bill. The Law Commission are currently reviewing the law relating to illegitimacy. Their review will cover, among other things, the affiliation law contained in the Affiliation Proceedings Act 1957. There is no doubt that the present affiliation law is archaic in a number of respects and we can expect the Law Commission to recommend reforms. In the meantime, we think it is undesirable in this Bill to attempt to deal with this important matter in advance of the Law Commission review. The second point is the one made on my behalf by the noble Viscount, Lord Colville of Culross, which I think there is also a great deal to be said for. As a result of that, I very much hope that the noble Baroness will consider the matter and agree to withdraw her Amendment.

Baroness MACLEOD of BORVE

I thank the noble Lord for his explanation and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Clause 49 [Interpretation of Part 1 of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland.]:

The CHAIRMAN of COMMITTEES

As regards Amendment No. 18, I must point out to the Committee that if this Amendment is agreed to I shall not be able to call Amendment No. 19.

5.39 p.m.

The SOLICITOR GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 18:

Page 47, leave out lines 4 to 15 and insert— ("(a) in subsection (1)—

1. (i) the definition of "maintenance" shall cease to have effect; and
2. (ii) after the words "liable to maintain;" in paragraph (a) of the definition of "maintenance order" there shall be inserted the following paragraph—

"(aa) an order which has been made in Scotland, on or after the granting of a decree of divorce, for the payment of a periodical allowance by one party to the marriage to the other party;"; and

(b) in subsection (2), after the words "subsection (1) above" there shall be inserted the words, "to the payment of a periodical allowance as mentioned in paragraph (aa) of that definition,"").

The noble and learned Lord said: I apprehend that the Committee would wish to make rapid progress and would certainly not like to be detained with Scottish business having regard to the likely future for us all, so I shall deal with these matters as shortly as I can. Clause 49 was intended to make it clear that foreign orders for periodic payments by divorced persons in favour of their former spouses could be enforced in Scotland under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 and vice versa. However, two doubts about the wording of Section 21 of the 1972 Act came to light. One of them concerned the meaning of the word "maintenance", which was defined in the 1972 Act as regards Scotland as meaning "aliment". It is thought that that definition is too restrictive, and accordingly one purpose of the Amendment is to put that right. The second doubt related to the definition of "maintenance order". Again, as your Lordships will see, the Amendment is designed to clarify that matter. I hope that in these circumstances noble Lords will agree to accept this Amendment. I beg to move.

Viscount COLVILLE of CULROSS

I thought that I had better put down a token Scottish Amendment. The noble and learned Lord, Lord McCluskey, has now answered my query. I am very happy to hear what he has said. As far as I am concerned, if his Amendments in Clause 54 are in the form of tidying up and drafting, as I think they are, I would have no objection to their being moved en bloc. I do not know what the rest of the Committee might think.

On Question, Amendment agreed to.

Clause 49, as amended, agreed to.

Clauses 50 to 53, agreed to.

Clause 54 [Further amendments of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland]:

5.42 p.m.

Lord McCLUSKEY moved Amendments Nos. 20 to 35.

Page 52, line 12, at beginning insert ("In any proceedings arising out of such an application as aforesaid the sheriff may")

leave out ("the sheriff may") and insert ("make")

Page 52,line 14, leave out ("make")

Page 52,line 20, leave out ("or where the application has been remitted under subsection (4)(a) below") and insert (", or (on appeal or remit)")

[In substitution for Amendments Nos. 24 and 25.]

leave out from beginning of line 23 to ("and") in line 26 and insert ("(ii) for the words "the sheriff clerk or sheriff clerk depute shall register the order in the prescribed manner in the court" there shall be substituted the words" the order shall be registered forthwith in the prescribed manner in the appropriate sheriff court by the sheriff clerk or sheriff clerk depute of that sheriff court; and where an order of the Court of Session varies or revokes a registered order of the sheriff, the said sheriff clerk or sheriff clerk depute shall amend the register accordingly". ( ) after subsection (2) there shall be inserted the following subsection—

"(2A) In subsection (2) above "the appropriate sheriff court" means the sheriff court making the order or (where the order is an order of the Court of Session) from which the remit or appeal has come.";")

leave out lines 32 to 35.

Page 52,line 38, after ("made") insert ("in respect of that application")

Page 53, line 3, leave out ("or a child of the marriage")

Page 53 line 12, leave out ("subparagraph") and insert ("paragraph")

Page 53 line 17, leave out ("under subsection (1A)") and insert ("with respect to an application under subsection (1)")

Page 53 line 20, leave out ("the said section 5, relating to the payment of a periodical allowance") and insert ("section 5 of the said Act of 1976.

(6) Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (which relates to the variation and recall by the sheriff of certain orders made by the Court of Session) shall not apply to an order of the Court of Session registered under subsection (2) above.")

line 24, leave out ("words" sheriff court"") and insert ("word" Scotland"")

leave out (""or the Court of Session"") and insert—

1. (""(a) the words "and no court other than the registering court shall have power to vary or revoke a registered order" in subsection (1) above are subject to any power of the Court of Session on appeal; and
2. (b)".")

page 58 line 28, leave out (""sheriff' court"") and insert (""magistrates' court or"")

leave out (""or in the Court of Session"") and insert (""in, or remitted from, a"").

The noble and learned Lord said: Responding to that generous invitation and having regard to the fact that anyone NA ho is familiar with Scottish legislation will see that these Amendments are of a technical character, with the leave of the Committee, I beg to move en bloc Amendments Nos. 20 to 24, 24A, and Amendments 26 to 35 inclusive.

On question, Amendments Nos. 20 to 35 agreed to.

Clause 54, as amended, agreed to.

Clause 55 [Amendment of s. 4 of Matrimonial Causes Act 1973]:

Lord HARRIS of GREENWICH moved Amendment No. 36: Page 54, line 4, leave out from ("treat") to end of line 11 and insert ("as a period during which the respondent has deserted the petitioner any of the following periods, that is to say—

1. (a) any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home;
2. (b) any period during which there is in force an order made by the High Court or a county court under —
1. (i) section 1 of the Matrimonial Homes Act 1967, or
2. (ii) section 4 of the Domestic Violence and Matrimonial Proceedings Act 1976, which prohibits the exercise by the respondent of the right to occupy a dwelling-house in which the applicant and the respondent have or at any time have had a matrimonial home;
3. (c) any period during which there is in force an order made by a magistrates' court under section 13(3) of the Domestic Proceedings and Magistrates' Courts Act 1978 which requires the respondent to leave the matrimonial home or prohibits the respondent from entering the matrimonial home.")

The noble Lord said: Clause 55 will ensure that a woman who obtains an exclusion order under Clause 13 of the Bill does not find in subsequent divorce proceedings that she is in difficulties in proving desertion during the period that the exclusion order was in force. If the clause is confined to exclusion orders alone, it will throw into doubt whether a period during which there is in force an injunction or other order of the High Court or a county court excluding a spouse from the matrimonial home can be treated as a period of desertion. It would give rise to obvious anomalies if High Court and county court orders were treated differently from magistrates' court orders in this respect. The purpose of the Amendment is to enable a divorce court to treat a period during which the High Court or a country court has excluded a spouse from the matrimonial home, or prohibited a spouse from exercising his right to occupy the matrimonial home, as a period of desertion. I beg to move.

Viscount COLVILLE of CULROSS

It is a beautiful point. I am only envious that I had not thought of it myself.

On Question, Amendment agreed to.

Clause 55, as amended, agreed to.

Clause 56 agreed to.

Clause 57 [Extension of powers of court to make orders for maintenance under s. 34 of Children Act 1975.]:

Viscount COLVILLE of CULROSS moved Amendment No. 37: Leave out Clause 57 and insert the following new Clause:

Access and maintenance

(" . For section 34 of the Children Act 1975 there shall be substituted the following section— 34.—(1) An authorised court may, on making a custodianship order or while a custodianship order is in force, by order—

1. (a) on the application of the child's mother or father make such provision as it thinks fit requiring access to the child to be given to the applicant;
2. (b) on the application of the custodian require the child's mother or father (or both) to make to the applicant for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
• (bb) on the application of the custodian, require the child's mother or father (or both) to pay to the applicant for the benefit of the child or to the child such lump sum as may be so specified;
1313
3. (c) on the application of the child's mother or father revoke an order requiring the applicant to contribute to the child's maintenance made (otherwise than under this section) by any court;
4. (d) on the application of the child's mother or father or the custodian vary an order made (otherwise than under this section) by any court requiring the mother or father to contribute towards the child's maintenance—
1. (i) by altering the amount of the contributions;
2. (ii) by substituting the custodian for the person to whom the contributions were ordered to be made.

(2) References in subsection (1) to the child's mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the Matrimonial Causes Act 1973).

(3) No order shall be made under subsection (1)(b) or (bb) requiring the father of an illegitimate child to make any payments to the child's custodian or to the child.

(4) Subsections (2), (3), (3A), (3B). (4), (5A), (5B), (5C), (SD), (5E) and (6) (orders as to the supervision, local authority care, maintenance etc. of children) of section 2 of the Guardianship Act 1973 and sections 3 and 4 of that Act (supplementary provisions) shall apply to an application for a custodianship order as they apply to an application under section 9 of the Guardianship of Minors Act 1971 subject to the following modifications, that is to say—

1. (a) in section 2(2)(b) and (4)(a) of the Guardianship Act 1973 any reference to a parent of a minor to whom the order relates shall be construed as including a reference to any other individual;
2. (b) section 3(3) of that Act shall have effect as if the words "or the custodian" were inserted after the words "application of either parent".

(5) A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child."")

The noble Viscount said: I thought that it would be better to write out the new Section 34 of the Children Act since it is so recent and, indeed, since I now discover that it is not even yet in force, so that at least one can see the whole text, as one can of the other amended sections of that Act in the Bill. I hope I have got it right. I beg to move.

Lord HARRIS of GREENWICH

I think the noble Viscount has got it right. I believe that the Amendment improves the Bill and I suggest that we agree to it.

On Question, Amendment agreed to.

Clause 58 agreed to.

Clause 59 [Revocation and variation of orders for periodical payments.]:

Viscount COLVILLE of CULROSS moved Amendment No. 38: Page 59, line 18, leave out ("or (b)") and nsert ("(b) or (d)").

The noble Viscount said: I think that I have got this point right. I believe we need a reference to orders that have been varied which will also cease in the circumstances referred to in Section 35 of the Children Act. As this has not been referred to, I think there might have been some doubt about it. A little bird told me that I had put down the Amendment in the wrong place. If I have, then the noble Lord must have thought I was putting down a different Amendment; therefore, we may be at cross-purposes. I thought that (d) ought to come in here; and I think I have put it in the right place. I beg to move.

Lord HARRIS of GREENWICH

I think we had better have another talk with the little birds. If the noble Viscount will withdraw his Amendment, we will go into that point.

Viscount COLVILLE of CULROSS

I agree and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Clause 60 agreed to.

Clause 61 [Amendment of section 36 of Children Act 1975]:

Viscount COLVILLE of CULROSS moved Amendment No. 39. Page 61, line 21, after ("parent") insert ("(or both)").

The noble Viscount said: This, again, is a drafting Amendment. We are putting in a new bit of Section 36 of the Children Act and we are referring to the parents. It is plainly intended that the court should have powers to make them both pay. In the existing Section 34(1)(b) there is a reference to requiring a child's mother or father or both to pay. If we do not have comity between the two sections I think that Parliament will be supposed to have made some distinction. For that reason, I beg to move.

Lord HARRIS of GREENWICH

This Amendment relates to the provision in Section 36 of the Children Act 1975 which enables a court, on revoking a custodianship order, to commit the care of the child to the local authority. Subsection (5) of Section 36 provides that in such a case the court may make an order requiring either parent to make periodical payments to the local authority.

Clause 61, which we are now dealing with, amends these provisions in certain respects so as to bring the powers to order financial provision under Section 36 into line with corresponding provision made by the Bill for matrimonial and other guardianship provisions. The words in Clause 61 which are the subject of the noble Viscount's Amendment are the same words as are used in Section 36(5) as it stands; namely, that an order may be made against either parent. The Amendment adds words to enable the court to make an order against both parents. In our view this is unnecessary. The expression "either parent" which is used in this subsection allows a court to make an order against both parents. There is here no point of substance, as the noble Viscount has recognised in the speech that he made this evening.

The same wording occurs in a number of other places, both in the present Bill and in existing legislation; for example, in Clause 38, page 37, line 18, where there is a corresponding provision in respect of guardianship provisions. Again this follows the existing words in the Guardianship of Minors Act 1973 in so far as it refers to either parent. While there is some attraction in being explicit on this point, such a change in our view is probably not necessary and might cast doubt—and we have referred to this problem earlier today—on the effect of other provisions in the Bill and in existing legislation where the words "either parent" occur. That is our view of the matter. There is no point of substance between us; it really is a question of drafting.

Viscount COLVILLE of CULROSS

I am grateful to the noble Lord. I think we have "or both" elsewhere in this Bill. I cannot now find it. Therefore there are inconsistencies both in this Bill and in the Children Act. So long as both parents can be required to pay, I am quite content. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 61 agreed to.

Clauses 62 to 66 agreed to.

5.52 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 40: After Clause 66, insert the following new clause—

Provisions relating to Convention adoption orders

(" .—(1) In section 24 of the Children Act 1975 (which relates to Convention adoption orders) after subsection (8) there shall be inserted the following subsection— (8A) Section 6(1) of the Adoption Act 1968 (which relates to the annulment of Convention adoptions) shall apply in relation to an adoption effected by a Convention adoption order as it applies in relation to a Convention adoption except that an adoption effected by a Convention adoption order may be annulled only by the court which made that order; and section 7(1), (2) and (4) of that Act shall apply accordingly".

(2) In section 53(1) of the Adoption Act 1976 (which relates to the annulment of regulated adoptions) after the words "regulated adoption" there shall be inserted the words" or an adoption effected by a Convention adoption order".

(3) In Schedule 3 to the Children Act 1975 paragraph 26 (which excludes Convention adoption orders from the provisions of the Adoption Act 1958 relating to notification of the revocation of an adoption order) shall be omitted.

(4) In Schedule 1 to the Adoption Act 1976 in paragraph 6 (which relates to the notification to the Registrar General of the revocation of an adoption order) the words "other than a Convention adoption order" shall be omitted.

(5) In section 6(1) of the Adoption (Hague Convention) Act (Northern Ireland) 1969 after the word "annul" there shall be inserted the words an adoption effected by a Convention adoption order or"; and in section 7(2) of that Act the words "in respect of a foreign Convention adoption" shall be omitted.")

The noble Lord said: The purpose of this Amendment is to correct two errors in the existing adoption legislation relating to Convention adoption orders. I beg to move.

On Question, Amendment agreed to.

Clause 67 agreed to

Clause 68 agreed to.

Clause 69 [Provisions as to payments required to be made to a child etc.]:

Lord HARRIS of GREENWICH moved Amendment No 41: Page 65, line 13, after ("under") insert ("Part II of the Maintenance Orders Act 1950 or")

The noble Lord said: I suggest that we take Amendments Nos. 41 and 50 at the same time. These are both drafting Amendments. I beg to move.

On Question, Amendment agreed to.

Clause 69, as amended, agreed to.

Clause 70 (Penalties for disobeying orders other than for the payments of money]:

Viscount COLVILLE of CULROSS moved Amendment No. 42: Page 65, line 26, at end insert ("whichever is the shorter").

The noble Viscount said: I do not think there is anything in this. The way that paragraph (b) of subsection (1) is drafted led me to wonder what happened if the person defaulted and he had been given a specific sentence of, say, six weeks which had been calculated on the basis of the amount that he would have had to pay. He then pays the money in respect of which he is in default. Is he immediately let out, notwithstanding there having been a fixed period of six weeks for which he had been committed? I think that it is all right because I am sure that the intention is that he should be let out the moment he pays the money. But I am wondering whether the phraseology is such that it might cause some difficulty of interpretation. I merely ask the noble Lord to look at it again; there may be a more felicitous way of putting it. I beg to move.

Lord HARRIS of GREENWICH

Clause 70(1)(b) gives the court flexibility in the matter of committal to custody. If the court considers that a particular period in custody is appropriate, it can say so, but if it wishes the person concerned to be released when a default is remedied—the noble Viscount has referred to this—it can also say so. This would enable the court to impose a specified period of imprisonment where there was no default to be remedied, so as to be able to deal with single or repeated acts of infringement.

Viscount COLVILLE of CULROSS

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 70 agreed to.

Clause 71 agreed to.

Clause 72 [Domestic courts]:

Baroness FAITHFULL moved Amendmend No. 43: Page 68, line 8, after second ("a") insert ("specially trained").

The noble Baroness said: I move this Amendment in order to ensure that adequate time and money is allocated to the training of magistrates in the administration of this extraordinarily difficult Bill. I would say to the noble Lord, Lord Harris of Greenwich—and I am sure that he would agree with me—that, in some areas, the training of magistrates is excellent. But it is not excellent throughout the whole country, and it varies from place to place. In the administration of a Bill such as this we should have a high standard throughout the whole country. Therefore I move this Amendment to ensure that note is taken of this point.

I have already referred to training and there should also be a probationary period. There are some magistrates who, finding themselves on the Bench, find it difficult to withdraw. There are some Benches which find that they have magistrates who are not suitable for the work that they are doing. I wonder whether the noble Lord, Lord Harris of Greenwich, would consider looking into the matter of probationary periods on both sides. Regarding the appointment of magistrates, I wonder, particularly with a Bill like this, whether magistrates should be interviewed and appointed by other magistrates before they are finally accepted. I beg to move.

Viscount COLVILLE of CULROSS

This gives me an opportunity to deal with Amendment No. 44 because it is on the same point. I noticed that there was some dispute on Second Reading as to whether it was right that the noble and learned Lord should appoint the panel or whether it was something that the magistrates themselves, on a county or some other basis, ought to be able to decide, since, presumably, they will know each other rather better than will the noble and learned Lord.

I see that the noble and learned Lord the Lord Chancellor is now in his place. I hope that he will remain for Amendment No. 51 because he will like that. I was saying that, wise, omnipotent and universally knowledgeable as the noble and learned Lord is, it was suggested by some Members of the House on Second Reading that the choice in each area of magistrates to sit on domestic panels might be at least as well made by the other magistrates as by the noble and learned Lord. It does not seem to me inconceivable that the rules which the noble and learned Lord is to make under subsections (5) and (6) might provide in some or all circumstances for that, or at least for the magistrates in the area to be consulted about those whom the noble and learned Lord chooses. A little more clarification of what is intended would be appreciated. My understanding is that Benches of magistrates find that they are able fairly accurately to judge the abilities of their colleagues to serve, and probably they will at least like to have a say on these points. Therefore, if we could have a little more explanation, the Committee would be grateful.

The LORD CHANCELLOR (Lord Elwyn-Jones)

I can give the assurance that the intention is that local benches should, in effect, make the selections. We have in mind the same procedure as already exists in the Children and Young Persons Act 1969 in respect of juvenile court panels. It is of some value that the final ministerial responsibility for the appointment of magistrates and for the exercise of their various jurisdictions should lie in the Lord Chancellor. I do not think it would be suitable to take the reserve powers which remain for the appointment of magistrates to the new domestic panels, and, indeed, for the rarely necessary exercise of the power to remove them. But I hope that, on the strength of that assurance, the distinguished members of the magistracy who have spoken on this point before will be reasonably reassured.

Viscount COLVILLE of CULROSS

That reply has not dealt with special training, which was the point of the Amendment before the House.

Baroness WARD of NORTH TYNESIDE

In view of what he said, may I ask the noble and learned Lord the Lord Chancellor whether he goes into the training which is given to magistrates in each region? I fully support the Amendment moved by the noble Baroness, Lady Faithfull. In other words, if the noble and learned Lord will forgive me, I am trying to find out how much work he does to ascertain whether magistrates have a sufficiently good training in every area, because that is very important. If he will forgive me, I should like to know how much work he does so that he can establish in his own mind how the training of magistrates is carried out in each area.

Baroness PHILLIPS

Before the noble and learned Lord tells us of all his exercises throughout the countryside. I should like to take up the point about the probationary period which was mentioned by the noble Baroness. I must say I found it rather astonishing. As I understood it, she said there were magistrates who could not withdraw: in other words having been appointed, they did not like to come off the Bench. I find that very strange and I also find it strange that she should suggest a probationary period for magistrates. After all, we elect Members of Parliament without any probationary period at all, and they are not going to administer the law but actually make it. Nobody has ever suggested that there should be a probationary period for Members of the other place—half of them would probably be rejected at the end of six months!

As a magistrate myself, and moving around the countryside and meeting groups and Benches of magistrates, I am impressed by their quality at this time. I think that what the noble Baroness said might well have been relevant a few years ago when the regional appointments were rather made because "old Joe had worked hard for a political Party"; but that is not true any more. The nominations have to go through a sieve and when people get on to the Bench they are people who have already made a service to the community.

Baroness MACLEOD of BORVE

May I, as one who spoke on this particular point during Second Reading, thank the noble and learned Lord very sincerely for the assurance he has given to magistrates this afternoon? We had been slightly perturbed by the idea that he was going to draft people from inside. In my Bench, which is, as the noble and learned Lord knows, very extensive, there is a first period of training before anybody is allowed to adjudicate. Then they have to serve for two years before being allowed to go on to the juvenile panel. Then they are invited by other members of the Bench to be members of a juvenile panel by virtue of various qualifications and personal attributes that they may possess. I hope I can infer from what the noble and learned Lord has said not only that the domestic court magistrates will have training but also that they will have a period of two years adjudicating in an adult court before being allowed to adjudicate in a domestic court after that training. Is that correct?

The LORD CHANCELLOR

I have precisely those ideas in mind. It is a very responsible job, the selection of this special panel, and, certainly, I contemplate that these people would have to be experienced in the ordinary work of the court before being nominated or selected for the panel. Of course, it is not contemplated that they would do nothing else but work for the panel. I think there is a certain danger in over-specialisation, and it is a useful thing for a magistrate to have overall experience of the work. I am happy to say that my thinking is on exactly the same lines as the noble Baroness has indicated.

I do assure my old friend—if I may so call her—Lady Ward, that I have been working jolly hard, particularly in the matter of training arrangements for the magistracy up and down the country. These are in the hands of extremely expert and competent people, and I am very glad to have the assurance from the noble Baroness, Lady Macleod, that that is so. Therefore, I think that the noble Baroness, Lady Ward, can be content: the great improvement that has taken place in recent years in the training of the magistracy has produced a very great benefit indeed.

Lord HARRIS of GREENWICH

If I may just address myself for a moment or two to the rather narrower issue raised in the Amendment moved by the noble Baroness, Lady Faithfull, certainly, on this matter we sympathise with the intention of the Amendment; but I am afraid I cannot recommend your Lordships to accept it. The gulf between us is not one of principle but is essentially procedural, and it relates to the central problem of bringing the Bill into force. In short, we shall be in the position, when the Bill becomes law, of having no justices at all who can be described in the statutory sense as "specially trained" those are the words she wants to inject into the Bill—to be members of a domestic panel, although of course many justices have long experience in adjudicating in domestic proceedings and many of them have been given informal training, often at their own request.

It is the intention of my noble and learned friend the Lord Chancellor that new justices joining the panels after they have been set up should have special training, and, indeed, the main purpose in setting them up is to make that possible. The clause contains a specific provision that provision may be made in rules for, among other things, the eligibility of justices to be members of such panels. Therefore, in these rules it will be possible to specify, at the appropriate time, that justices appointed must be specially trained. However, this would not be possible in the first place unless we were to suspend the bringing into force of this clause for a very long period of time indeed and, incidentally, to compel some very experienced magistrates to go through this special training before they could sit.

I therefore suggest to the noble Baroness that she might withdraw the Amendment, on the understanding that, for appointments other than in the initial period, the principle that magistrates joining the domestic panels should be specially trained is fully accepted by the Government.

Baroness FAITHFULL

In withdrawing my Amendment, may I make a final point concerning the training of magistrates? I happen to have worked for an extraordinarily outstanding Bench, and therefore know what it is to work for a very good Bench; but I do wonder whether sometimes there is not a gap between the professionals and the magistrates which could be considerably narrowed if particular training was included in the magistrates' courses on professinal attitudes towards, for instance, child and family care. I just wanted to make that point, and now beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

Clause 72 agreed to.

Clause 73 (Persons who may be present during hearing of domestic proceedings]:

6.9 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 45: Page 70, leave out lines 23 and 24.

The noble Viscount said: This Amendment concerns the people who are no longer going to be allowed in the court when domestic proceedings are being heard. The first Amendment, I hope, is the one that deals with other persons whom either party desires to be present. Under the law as it now stands they can be there; under the Bill they will no longer be able to be there. Whatever one may say about the next Amendment, which concerns legal representatives either learning or waiting for their case to be heard, I cannot understand why the Government wish to exclude people whom either party wishes to be there. I suspect that these cases will quite often be handled in person.

An individual making an application, particularly under legislation which is new and which involves matters such as lump sums, might very easily want to take along somebody who will literally hold his hand—and it may be no more than that—so I cannot understand why these people are being excluded. In view of the business that is yet to come, I am afraid that this is not the time to go into this matter in great detail. But it is something on which I feel fairly strongly and I should like to hear the Government's justification for this provision, because we may have to come back to it again. I beg to move.

Lord HARRIS of GREENWICH

Perhaps we might take the other Amendment at the same time, if the noble Viscount is content with that. We will do just as he likes. I am in his hands.

Viscount COLVILLE of CULROSS

Very well, as long as we can sub-divide them, because they are two different points. I am less concerned about solicitors and counsel, either there with L-plates on or waiting for another case. But there is also a point which indicates to me that we might think again about this matter. As my noble friend Lady Ward and others have pointed out today, in magistrates' courts there are different approaches to the handling of certain matters, and there is nothing more tiresome for the magistrates, or indeed more unsuccessful from the point of view of the client, than to get the whole Bench against you, because you go about a case in the wrong way. Both solicitors and counsel are under professional rules, which require them not to discuss with anybody else what they have heard, and there are good arguments for allowing them to listen to proceedings of this kind and not be turned out, as the Amendment proposes. It is something of less importance, but in order to get efficiency and, to some extent, uniformity as between one magistrates' court and another—because counsel can argue that something is done differently somewhere else—we ought to think again about it, and I am not convinced on this, either, by the argument put forward on Second Reading.

Lord HALE

With the permission of the noble Viscount, I will deal only with the second Amendment, while joining him in moving both. The Law Society attach some importance to this provision. One does not normally make a fortune out of matrimonial cases. Therefore, it is sometimes difficult to get advocates to take them. The trouble, as they point out, is that if you keep all the young people out of court you will never develop experienced advocates. The young advocate sitting in court can be learning the business. Apart from that, as the Act provides for the formation of courts for two separate districts, provided that they are larger than a petty sessional area, you will get courts in which cases follow one another when it is to everyone's advantage—and not merely a matter of convenience, although even convenience matters when counsel may be having to face the problem of time, coming here or time going there, and wanting to be present in order to check up and find out what is happening—that the door is not barred.

There appears to be no useful purpose at all in this proposal. I cannot think of one sensible purpose that it serves. Normally, counsel and solicitors have no special or personal interest of any kind in anyone else's case. But they want somewhere to sit down and see what is happening, and they should have the opportunity, which every advocate values, of finding out the general attitude of the court and whether points will be accepted without going into too much detail. It is to the advantage of the court, and of the profession to which I belonged at one time, as well as in the general interest, if they are allowed to be present. A bar should not be laid down, which, after all, is a breach of the general principle which is breached for special reasons only in connection with children; that is, that justice should normally be conducted in public. If it were felt that matrimonial cases should not be held in public, I would not question that, but to exclude people who are working in the court and knowing the court is an unnecessary requirement, and I cannot think of any useful purpose behind it.

6.15 p.m.

Lord JANNER

I should like to add a few words to what has been said by my noble friend Lord Hale. In considering this point, I do not think that the effect was fully realised. It is important for a practising solicitor or barrister to have not only experience of his own case but experience generally in the practice of the courts and in seeing how the proceedings are taking place, so that if he happens to be briefed in a case he will know the position and how to deal with it. We have heard, from time to time, about magistrates needing to be trained properly in order to carry out their work. I do not know whether your Lordships realise that, nowadays, young barristers and solicitors are immediately thrown into active practice—it is very different from the early days when I was practising—in consequence of the Acts which prevail, which provide possibilities for inexperienced young persons to practice in the courts straight away.

I do not think I am doing an injustice to my own profession if I say—and I think that most magistrates will agree—that quite a number of people who practice before magistrates in the courts today are not of the highest experience and knowledge, in regard to conducting cases. One often hears magistrates complaining about the fact that young counsel and others who appear before them have very little experience. I hope that my friends in the profession will not think that what I am saying is casting any aspersion on the profession itself. But what on earth can there possibly be against a solicitor who is an officer of the court—that should be taken fully into consideration—being present? He will not utilise what he has heard in these courts in a way which would place him in danger of completely losing his profession. The only possible disadvantage would be if somebody broke the rules, and exposed himself or herself to the danger to which I have referred.

I do not practice in the courts today, but I did so for very many years, and I think that it would be to the detriment of all concerned if counsel and solicitors were not allowed to remain and listen to the proceedings. My noble friend Lord Hale has explained the differences in the various courts, and it would save a lot of trouble and anxiety to magistrates if those who went before them knew what action was considered unnecessary or was disliked, instead of magistrates murmuring afterwards—I put it on the lowest possible basis—"What a funny chap this fellow is. He does not seem to understand what he is about". In my view, it would be of additional help in carrying on their profession if counsel and solicitors were not deprived of the opportunity to listen to cases but could hear the proceedings and the magistrates' views. I hope that my noble friend will see it from that point of view and will accept the noble Viscount's second Amendment.

6.20 p.m.

Lord HARRIS of GREENWICH

If I may deal with both of these Amendments, subsection (1) of the clause provides for the same measure of privacy to apply to domestic proceedings as now applies to juvenile proceedings. I must draw the attention of the Committee to the fact that very special factors are involved in cases of this kind where people are revealing the most intimate details of their private lives. In these often very distressing circumstances it is not unreasonable to try to ensure some limitation of numbers even though, unhappily, some people will feel that they are disadvantaged by this procedure, since they believe that it would be of great professional interest and value to them if they were allowed to be present. We have an obligation to the people who are using magistrates' courts for these purposes and must take account of their very proper concern. It is on that basis that we approach both of these Amendments.

There was extensive consultation on this point and these recommendations were widely welcomed. It is undesirable to fly in the face of disapproval by keeping the existing arrangements. To take the point which was in the mind of the noble Viscount, Lord Colville of Culross, may I assure the Committee that subsection (1)(b) is not intended to deprive the parties to the proceedings of the helpful or comforting presence of a friend or relative. But let us imagine the situation where one party brings along the very person whom the other person alleges to be responsible for the breakdown of the marriage—either the girl friend, or the man that the wife has run away with. I am told by the Justices' Clerks Society that the provisions of the existing law can often cause a great deal of intense embarrassment in cases of this kind, not even leaving out of account the fair amount of "agro" which can go on in the court, notwithstanding the need to maintain proper judicial decorum.

Our provision seeks to enable the court to have a valuable discretion—nothing obligatory but a discretion—where at present it has none. It is perfectly right that the issue should be raised but, as I have said, we have to try to establish a fair balance and it is perfectly reasonable in the situation which I have described to give a discretion to the court where, I repeat, at present it has none.

Subsection (1)(c) excludes from domestic cases solicitors and counsel in attendance for other cases. I accept at once that some people may lose out by this provision. They may feel that it would be helpful to their careers if they were present. At the moment, however, they cannot attend juvenile proceedings. I have not heard it suggested, although it may be suggested by some, that because they are not able to be there members of the Bar, or solicitors who appear before juvenile courts, are gravely disadvantaged. That has not been argued.

Lord JANNER

If I may be allowed to interrupt my noble friend, is he quite sure that it would not be advisable for professional people to attend juvenile courts? Might that not be helpful when the time comes for them to conduct cases before the juvenile courts?

Lord HARRIS of GREENWICH

I do not believe that is a proposition with which the Government would agree. I do not believe, either, that it is a proposition which has been argued. Certainly we have seen no evidence that there have been serious consequences so far as the cause of legal education is concerned. That being so, the Government see no particular reason why it is not reasonable to apply to these cases what already applies to cases in the juvenile courts. If individual members of the profession wish to attend domestic proceedings in order to gain experience, they will be able to do so at the court's discretion. Once again it is a matter for the court to decide, and I do not think that is unreasonable. However, the merits of providing this training for the legal profession should be weighed against the attitudes of the parties to the case who may find the presence of a significant number of unnecessary observers both distracting and highly embarrassing. It is perfectly reasonable that we should consider their interests. I understand the feeling of all those who have spoken in the debate, but for the reasons I have indicated the Government are clearly of the view that it is desirable to maintain unamended the provisions of the clause. Therefore I very much hope that the noble Viscount will not press his Amendment.

Viscount COLVILLE of CULROSS

I am acutely aware of the time. I know that there is an important debate to follow these proceedings. I do not see the discretion written into the Bill. It is not written into the next subsection, and I do not understand how the discretion is proposed to work. I hope that the noble Lord, Lord Hale, will join with me when I say that I shall refrain from pursuing today either Amendment No. 45 or Amendment No. 46. A very similar point arises on my Amendment No. 47. I want to know why the people in adoption proceedings whom the court considers should be in court are being excluded by the Government. I have a not dissimilar point on Amendment No. 49; namely, why these domestic proceedings are not domestic proceedings under Clause 56.

This is a new look at the whole of this part of the Magistrates' Courts Act. I should have thought that it would be in everybody's interest to stop discussing the matter in Committee and to get together somewhere in private to deal with it. I hope that course will prove to be agreeable to those who have taken part. I believe that each of us has good points to make and that we are not all that far apart. We are much more likely to make progress in private than if we continue to debate the matter in Committee. If that procedure is agreeable to the noble Lord, Lord Harris of Greenwich, perhaps he would indicate it. I see that that course is agreeable to him. Therefore, I beg leave to withdraw Amendment No. 45.

Amendment, by leave, withdrawn.

[Amendments Nos. 46 and 47 not moved.]

Clause 73 agreed to.

Clause 74 [Restriction on newspaper reports of domestic proceedings]:

6.29 p.m.

Baroness MACLEOD of BORVE moved Amendment No. 48: Page 71, line 23, leave out ("£500") and insert ("£1,000").

The noble Baroness said: I beg to move Amendment No. 48. I, too, shall try to be brief. The law is that the Press is not able to reveal the name and address, or the school, of any child, or any of the proceedings in domestic courts. This is absolutely right, but I wonder whether a deterrent of £500 is sufficient. When the Press is involved, it is very important that one should make the fine realistic. I do not believe that a fine of £500 would deter the reporting of a "juicy" case in either the local or the national Press. As the fine is not to exceed the amount stated, I submit that £1,000 is a far more realistic figure. I beg to move.

Lord HARRIS of GREENWICH

Clause 74 amends the penalty in Section 58 of the Magistrates' Courts Act 1952 for the offence of publishing certain particulars of domestic proceedings. The previous penalty provided by Section 58 is a maximum fine of £100, or imprisonment for a term not exceeding four months, or both. Clause 74 removes the penalty of imprisonment but increases the financial penalty to £500. The noble Baroness's Amendment would increase the financial penalty still further, to £1,000.

I am bound to say I do not believe a fine of £1,000 is appropriate for this type of offence. It is in fact the maximum fine which a magistrates' court can impose in any type of case. While I do not underrate the seriousness of a breach of the restrictions imposed by Section 58, I do not think such a breach should merit the severest penalty available. Equally, if one is talking about a large national newspaper in relation to what the noble Baroness described as a "juicy" case, I do not think the disincentive of £1,000 makes a great deal of difference in a case of that sort. I do not believe that national newspaper editors lightly flout the law; and I am sure the noble Baroness would agree.

In fixing the present penalty in Clause 74 we had in mind the fact that there are comparative offences in Sections 39 and 49 of the Children and Young Persons Act 1933 relating to the publication of particulars of juvenile proceedings. The penalties for these offences were increased to £500 by the Criminal Law Act 1977. Clause 74 would bring the penalty for the corresponding offence in domestic proceedings into line with the penalties in respect of juvenile proceedings. Since the penalties for juvenile proceedings were raised to £500 as recently as last year, I do not think there is any justification at this stage for providing a higher penalty for offences in respect of domestic proceedings. In the light of that explanation, I hope that the noble Baroness will agree not to press the Amendment.

Baroness ROBSON of KIDDINGTON

I hope the noble Lord is aware that I mentioned local Press as well as national Press. I was talking mainly about the local Press, because they, rather than the national Press, are the people who would be reporting in magistrates' courts. However, after hearing what the noble Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 74 agreed to.

[Amendment No. 49 not moved.]

Clause 75 agreed to.

Clause 76 agreed to.

Clause 77 [Periodical payments payable by one person under more than one order]:

Lord HARRIS of GREENWICH moved Amendment No. 50: Page 73, line 14, after ("under") insert ("Part II of the Maintenance Orders Act 1950 or").

On Question, Amendment agreed to.

Clause 77, as amended, agreed to.

Clause 78 agreed to.

6.35 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 51: After Clause 78, insert the following new clause:

Hearing evidence

(" . Without prejudice to section 11(6) above, a magistrates' court, in exercising its jurisdiction under

1. (a) Parts I and III of the Children Act 1948;
2. (b) Part I of the Children and Young Persons Act 1969;
3. (c) Section 2 of the Guardianship Act 1973;
4. (d) Parts II and III of the Children Act 1975;
5. (e) Part I of this Act,

may notwithstanding any enactment or rule of law relating to the admissibility of evidence taken into account any evidence and give to it such weight (if any) as the court thinks fit.").

The noble Viscount said: When I wrote in my Amendment my handwriting must have been worse than usual. This is meant to be "hearsay", not "hearing", and it was accompanied by a neat little Amendment to the Long Title which never got printed at all. This is a point to which I attach great importance, and I am sorry I am not going to do justice to it. Perhaps I could just outline the point to the Committee. For reasons which are unknown to me, there have never been brought into force for civil proceedings in magistrates' courts the provisions of the Civil Evidence Act 1968 which allow for certain relaxations of the appalling rules on hearsay evidence. The extent to which, therefore, in domestic proceedings—and I hope I have listed the right ones—in magistrates' courts hearsay evidence is admitted, is largely a matter for the learned clerk—and there are learned clerks and learned clerks. Some of them take a broad view and some of them take a narrow view, and there are all shades in between. This is of considerable importance because a good deal of the material upon which the justices will come to their conclusion, about, for instance, who is the right person for the child to go to, is bound to depend upon rumour, or upon what the teacher said—but the teacher will not come because that will affect her relationship with the child—or upon what somebody else said, but they will not come either, and anyway it is all secondhand. It is at that sort of stage that nobody knows how much of it is admissible in evidence and how much of it is not.

My view about this, for what very little that may be worth, is that the magistrates are perfectly capable of saying how much that sort of evidence is worth. To some of it they will attach importance, but other bits they will dismiss as being totally hopeless and quite unreliable. They are the best people to judge, but we will not let them because they are not allowed to hear it as a matter of law anyway. You get to the ludicrous situation which occurred in a recent case, reported in 1973 3 All England Law Reports, where, because of these technical rules, the Humberside County Council had to go to the Divisional Court to find out whether the magistrates were allowed to hear the evidence of somebody who was extremely important and relevant to the case. I think it is high time this was stopped.

Not only is it silly from the point of view of the magistrates' court, but it causes this further problem: sometimes the result of knowing that the court is not going to listen to a certain kind of evidence means that, for instance, the children's officer of the local authority knows that it is no use going for a care order to the magistrates' court, so he has to go to the High Court, where the Civil Evidence Act does apply and where he can bring hearsay evidence. Thus, a great deal of money and expense and time is involved quite unnecessarily. It is all very well if you are somewhere near a district registry of the High Court; then it may be fairly easy. But if you are miles away, it is not possible. The situation is very unsatisfactory and I should like to have something done about it. I am going to be told that this is not the Bill to do it, but it is the Bill upon which to raise the complaint. I beg to move.

Lord HARRIS of GREENWICH

I think the noble Viscount would agree that it might be sensible to return to this matter in the future, all the more so because we have been working on the assumption that the noble Viscount's intention was different from what it in fact is, because of this unfortunate misprint. The Amendment on the Marshalled List would have had the rather surprising effect of giving each magistrates' court, when hearing cases arising under the provisions specified, a discretion either to admit or reject any evidence it might think fit. It did not seem likely that that was the intention. Therefore, it seems to me that we might return to this matter, all the more so as there is a general desire to proceed fairly speedily because of the forthcoming business on the Order Paper.

Viscount COLVILLE of CULROSS

I am very happy to do that. Now that I have explained it, will the Government look at this? I only meant hearsay evidence. I am sorry if I drafted it wrongly. I think there is a real probem here which ought to be tackled. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 79 agreed to.

Clause 80 agreed to.

Clause 81 [Short title and extent]:

Lord McCLUSKEY moved Amendments Nos. 52 and 53: Page 75, line 20, after ("54") insert ("(Provisions relating to Convention adoption orders) (1) and (3).") line 22, after ("paragraphs") insert ("1A.,").

The noble and learned Lord said: Amendments Nos. 52 and 53 are of the same character. They extend the application to Scotland provisions of the Bill, in the first case to cover the effect of Amendment No. 40, and in the second case to cover the effect of Amendment No. 56, an Amendment to Schedule 2 which we shall shortly come to. I beg to move.

On Question, Amendments agreed to.

Lord WELLS-PESTELL moved Amendment N0. 54A:

[In substitution for Amendment No. 54]

Page 75, line 25, leave out ("79(5), 82(a),") and insert ("(Provisions relating to Convention adoption orders) (5), 79(5), 82,").

The noble Lord said: With the permission of the Committee, I should like to speak also to Amendments Nos. 55, 57, 59 and 61. These Amendments are consequential on Amendment No. 40 which was moved by my noble friend Lord Harris in my absence, and I apologise to him for not being present in my place. These are orders, governed by the Hague Convention on jurisdiction of decrees relating to adoptions, which the Government propose to ratify for the United Kingdom within the next few weeks. In order to do that, it is necessary to make certain changes in other Bills so that this convention will apply to Northern Ireland and to various other parts. As my noble friend pointed out, Amendment No. 40 is very technical and these Amendments are consequential. As Amendment No. 40 was accepted, I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 55: Page 75, line 27, at end insert ("and Schedule 3").

On Question, Amendment agreed to.

Clause 81, as amended, agreed to.

Schedule 1 agreed to.

Schedule 2 [Minor and Consequential Amendments]:

Lord McCLUSKEY moved Amendment No. 56: Page 77, line 14, at end insert— ("The Sheriff Courts (Scotland) Act 1907 (c.51) 1A. In section 5 of the Sheriff Courts (Scotland) Act 1907—

1. (a) in subsection (2), after the words "Actions of aliment", there shall be inserted the 1335 words "(other than any action mentioned in subsection (2A) below)";
2. (b) the following subsection shall be inserted after subsection (2)—
• "(2A) Actions, arising out of an application under section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, for the recovery of maintenance: "; and
3. (c) in the final proviso, for the words "the second subsection" there shall be substituted the words "subsection (2) or (2A)".").

The noble and learned Lord said: This is a drafting Amendment, but I should say one sentence about each part of it. The first part has the effect of amending Section 5 of the Sheriff Courts (Scotland) Act 1907 to give the sheriff express jurisdiction to deal with all applications for maintenance under Section 31; that is to say, jurisdiction to deal with applications for maintenance by divorced spouses as well as other applications. The final proviso to Section 5 of the same Act allows the sheriff to remit maintenance cases to the court of session where appropriate. That is also to be amended by the second part of this Amendment so as to enable such remit in all cases under Section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972. Accordingly, I beg to move.

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Enactments repealed]:

Lord WELLS-PESTELL moved Amendment No. 57: Page 84, line 29, at end insert—

("1969 c. 22 (N.I.).

The Adoption (Hague Convention) Act (Northern Ireland) 1969.

In section 7(2) the words "in respect of a foreign convention adoption."")

On Question, Amendment agreed to.

Lord WELLS-PESTELL moved Amendment No. 58:

Page 85, line 16, column 3, at beginning insert— ("In section 17(1) the words "under the age of 16".").

The noble Lord said: With your Lordships' permission I should like to move Amendment No. 58 and speak to Amendment No. 60. These Amendments are consequential on Clause 65 of the Bill which alters the age at which an order for supervision or an order committing a child to care of a local authority may be made in adoption proceedings. Clause 65 has been accepted and these Amendments are consequential upon it. I beg to move.

Viscount COLVILLE of CULROSS

Have not all the three remaining Amendments been spoken to, in which case they could be moved en bloc?

Lord WELLS-PESTELL

Yes, that is so.

On Question, Amendment agreed to.

Lord WELLS-PESTELL moved Amendments Nos. 59, 60 and 61. Page 85, line 18, column 3, leave out ("paragraph 12") and insert ("paragraph, 12 and 26") line 19, column 3, at beginning insert—("In section 26(1) the words "under the age of 16 years".") column 3, at end insert— ("In Schedule 1, in paragraph 6, the words" other than a Convention adoption order".").

On Question, Amendments agreed to.

Schedule 3, as amended, agreed to.

House resumed: Bill reported with the Amendments.