HL Deb 28 February 1978 vol 389 cc405-43

4.41 p.m.

Report received.

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

Viscount COLVILLE of CULROSS moved Amendment No. 1: Page 10, leave out lines 22 to 24.

The noble Viscount said: My Lords, the first Amendment on the Marshalled List this afternoon is, I venture to think, the only one with which the House is going to have any trouble. I say that because the noble Lord, Lord Harris of Greenwich, has taken an enormous amount of trouble with his advisers to discuss and write to those of us who have put down Amendments. I find a gratifying amount of agreement arising between myself and the noble Lord and I think that others of my noble friends are also satisfied with some of the Amendments that the noble Lord is putting forward.

However, on Clause 9 a question is still unanswered. If I may briefly describe the question again, it is this: Why, when there is a power to make a care order placing a child in the care of a local authority, may a court not make it after the child is 17? It was put to me at the end of his speech at the Committee stage by the noble Lord, Lord Wells-Pestell (this matter was covered at columns 1272 to 1276 of the proceedings reported in Hansard on 14th February): What does the court do with a child after it is 17? I said that that was exactly the question that I had asked the noble Lord and he had not answered it. I have not yet had an answer.

The second part of Clause 9(6) is the "odd man out" in this Bill. The jurisdiction over children arises under Clause 7(2)(a) and continues to the age of 18. Custody ends at 18 under Clause 7(5). Under Clause 8(3), a supervision order ends at 18. Under the first part of Clause 9(6), a local authority care order ends at 18. In Clause 9(4)(b) the age is 16, and that is for the purposes or orders relating to contributions and applications by the child himself. He may do that at 16. In Clause 16, there are provisions which enable things to happen when the child reaches the age of 16, 18 or 21. Under Clause 16(11), at the age of 16 a child can apply for the variation of an order on his own account.

These are the up-to-date age limits. Sixteen is now the school leaving age. Eighteen is now the age of majority. I suppose that, if one wants to find some justification for 21, which only occurs once in the Bill, it is the former age of majority and perhaps it is as good as any other on which to put a top limit. Nowhere else in this legislation is 17 mentioned. I ask the Government, Why? Why have they persisted in saying that between the ages of 17 and 18 no court may make a care order on a child? I was told that this was merely consonant with other legislation on the subject. I was referred to the Matrimonial Causes Act 1973, Section 43(4). It is perfectly true that that is in exactly the same terms as Clause 9(6) of this Bill. It does not say why.

The 1973 Act was the result of a consolidation Bill, and one of the prime duties of the Consolidation Bills Cornmittee—I remember this well because I used to be the chairman of is— to make sure that there is no change in the law. On that occasion the Committee—not under my chairmanship—did their job properly because they reproduced faithfully Section 36(4) of the Matrimonial Causes Act 1965. If one looks at the origins of the Matrimonial Causes Act 1965, one finds that that, too, resulted from a consolidation Bill. But it had Amendments made to it, and I am led to believe that the Amendment that now represents most of Section 36 of that repealed Act derived from Cmnd 9678, which was the Royal Commission on Marriage and Divorce under the chairmanship of the late Lord Morton of Henryton, which reported to Parliament on 1st December 1955. One is referred to paragraphs 393 to 402 which talk, among other things, about care orders; but the report does not say anything about the age of 17. So my inquiries have run into the sand down that alley and I am no further in discovering why the age 17 was chosen.

The noble Lord, Lord Wells-Pestell, also referred to me the Matrimonial Proceedings (Magistrates' Courts) Act 1960, which this Bill is superseding, and to Section 2(1)(e). He is perfectly right in saying that that includes the provision whereby care orders to local authorities may be made for children. It is interesting that although that provision requires that such orders should cease at the age of 18, it does not say that they may not be made after the child is 17—at least, if it does, I cannot find the reference. I have gone as far back as 1955.

If I am going to be told that the history of this begins earlier still—say, with the Children Act 1948—then all I can do is to suggest to the House that it is high time it is looked at again. I think I am right in saying that in those days the school-leaving age was 15. It may have been 14; but, at any rate, it was not 16. The age of majority was 21. I suggested last time that this is a relic and nothing more than a relic of ancient legislation when, for the sake of nothing better, 17 was chosen because it seemed to be about right. The difficulty is that it no longer seems to be about right. The age ought to be 18. I appreciate that only rarely will care orders be made under Clause 9. The circumstances will be exceptional. This is what the Morton Commission was suggesting in the first place. Nevertheless, I do not believe that the court should be left to answer the question that the noble Lord, Lord Wells-Pestell, put to me: In the rare circumstance concerning a child over the age of 17, but under 18, what do we do? The answer is, Nothing. I believe we deserve an answer to this question. I beg to move.

Baroness FAITHFULL

My Lords, I should like to support the noble Viscount on this Amendment. The situation regarding boys and girls—particularly girls—from the ages of 17 to 18 is extremely difficult when there are great problems with parents. Parents ask what help could be given to a girl of 17. No help can be given as the law stands at the moment. Acceptance into care cannot be offered. One cannot bring the girl before the court. One simply has to rely on a personal relationship which often at that stage is extremely difficult. Therefore I hope that the Minister will consider raising the age above the present level. Under the Children and Young Persons Act 1933, Section 20, revised by the Children and Young Persons Act 1963, and further revised by the 1969 Act, it is possible for children who are in care to receive help up to the age of 21. Therefore when a girl or boy between 17 and 18 is in trouble, it is an extraordinary situation that one has absolutely nothing to offer them or their parents.

4.50 p.m.

Lord HARRIS of GREENWICH

My Lords, I am grateful to the noble Viscount for having returned to this matter; but I find myself in some slight difficulty because my noble friend Lord Wells-Pestell, who dealt with this matter in Committee and was indeed going to deal with it today, has been called away for understandable reasons, with which we sympathise.

I have therefore gone into this matter, having had the pleasure of listening to the noble Viscount on a previous occasion and indeed today. I should like to have some pause for further reflection on the matter. I would not in any way wish to suggest that I could announce that the Government were going to change their position here, because I am advised there could be some quite significant resource implications if they were to do so. However, I should like to go into this matter with the Department of Health and Social Security between now and the next stage of the Bill. In doing that, we shall be assisted by the valuable historical researches with which the noble Viscount has concerned himself since the Committee stage, and perhaps we can return to the matter on Third Reading.

Viscount COLVILLE of CULROSS

My Lords, in these circumstances I certainly do not wish to press the matter and I am grateful to the noble Lord for his offer to look at it again. I, too, am sorry that the noble Lord, Lord Wells-Pestell, is not here, and am even more sorry to hear the reasons for his absence. I can envisage that there may be some resource indications, but when this was being argued previously, the main burden of the case put by the noble Lord, Lord Wells-Pestell, was not in fact immediately directed to the age of 17, to which he really only got at the end. He was chiefly defending the criterion of exceptional circumstances. As I say, if one wants to see what those exceptional circumstances are, one goes back to look at the paragraphs in the Morton Report to which I referred. There is there a very strong indication that these care orders would not be very common. I would think that in the case of somebody between the ages of 17 and 18 such an order would be altogether a rare thing; or at least certainly not an ordinary run of the mill case.

I know that the Government have resource problems at the moment, but the difficulty is that we comparatively seldom legislate on these subjects. It is now 18 years since this was looked at, and I would not object, if the resource implication was the only thing that was giving trouble, to there being special commencement order proceedings. We have those in all the rest of the legislation, and, if that is the only problem, then I can see no technical difficulty in getting over it. The point is that the principle needs to be justified and the noble Lord, for reasons which I well understand, has not attempted to do so today. I only hope that, if this Amendment is not going to be accepted, we shall at some time at least hear positive arguments as to the reason. I shall therefore leave the noble Lord to his deliberations for the present and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 2: Line 38, leave out ("£10") and insert ("£50").

The noble Lord said: My Lords, this Amendment with some others which appear later on the Marshalled List, is to meet a general point about the level of fines made during the debate in Committee by the noble Baroness, Lady Macleod of Borve. Under Clause 9, the parent or guardian of a child who has been received into the care of a local authority is required to notify the authority of any change in his or her address. The Amendment raises the maximum penalty for failing to comply from £10 to £50. We agree, on reflection, that £10 is too low a figure and have chosen £50 because this seems to us to be in line with the nature and seriousness of the offence and with the scales of fines provided for in the Criminal Law Act 1977. I beg to move.

On Question, Amendment agreed to.

Clause 11 [Supplementary provisions with respect to powers of court under ss. 7 to 9]:

4.54 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 3: Page 13, line 12, at end insert ("or any other report to which the court may direct that the provisions of this subsection shall apply").

The noble Viscount said: My Lords, although the untutored eye might not immediately recognise the matter, this is directed to the subject of hearsay evidence. I ventured to write to the noble Lord, warning him beforehand that that was so. We had a rather inconclusive discussion about hearsay evidence on the last stage of the Bill, largely because nobody could read my handwriting and the noble Lord did not know what I was going to talk about. Now he does, and he has written a most helpful letter to me which I have here, in which he explains the situation. He has explained, first, why it probably would be better if we did not embark on the question of hearsay under the Children and Young Persons' Act 1969. I would be happy to agree with him that perhaps it would be better not to embark upon that legislation in connection with this Bill. He also explained a matter which is interesting not only to the Parliamentary, but also to the academic, lawyer: that is, why the Civil Evidence Act has never been appleid in magistrates' courts. I find this of very considerable interest.

He further described why it was that in his view, under this general complex of domestic proceedings, there was in the magistrates' courts unlikely to be any particular trouble about the reception of hearsay evidence. This information which appears in his letter on the subject would be, I would have thought, of great interest to people other than the mere recipient of that letter, which is myself. I wonder whether, in view of the amount of hard work which has gone into the correspondence sent to me by the noble Lord on this and on a large number of other practical and important matters, there may not be an opportunity for the Home Office to issue a circular which gives some words of guidance along these lines, because I feel that would be of great assistance to those who have to administer this body of law in future—particularly clerks of courts and chairmen of benches, who will have to decide what they are to do in any given circumstances.

By putting down this Amendment I therefore gave the noble Lord an opportunity of saying something about the question of hearsay evidence in domestic proceedings: but in fact I have gone a little further than the Bill and a little further than what the noble Lord says is already a satisfactory situation, because I think one needs just to look at the limitations provided in Clause 11. From subsections (3) to (6), we have a provision whereby the court can ask for a report to be prepared by an officer of the local authority—I should think a probation officer—and when it is prepared a copy is passed to the other side. The matter may be considered and the officer who made it made be examined, and hearsay evidence does not apply. I imagine that is extremely satisfactory and will apply to all domestic proceedings, as redefined in Clause 72 of the Bill; but it does not deal with reports which are made by anybody other than the probation officer.

I should have thought, particularly as we are coming to Amendment No. 4, which I am very happy to see and which puts at the forefront of the court's consideration the welfare of the child, that the court ought to have available to it, without being troubled by the rules of hearsay, any relevant evidence that is available from any source. I can see that one can devise a system whereby, if one wishes to bring in what was said by the school-teacher, the Minister or anybody else, it can all go into the probation officer's report. Certainly it could do; but what happens if it does not and if there is an important piece of material evidence which, for one reason or another, has been missed out of the probation officer's report and is then excluded from the consideration before the court because of the hearsay rule?

I should have thought that in these circumstances—though I do not know what those who are involved in magistrates' courts would have to say about this—that one ought to be able to allow the court to have in front of them any report and to treat it in accordance with the probation officer's report under this clause as it thinks fit. Therefore, what I have done is to provide for an extension of the provisions—a relaxation of the hearsay rule—under Clause 11, so that the court may direct that these provisions apply to any other report. They do not have to do so. It is simply that, if they think that it is something which they ought to know about, they may direct that the hearsay rule shall not apply to that report. Therefore, it remains entirely within their hands. It is not mandatory upon them. I should have thought that it was a perfectly workable system for them to say: "It sounds as if we ought to know about that and, if we are not debarred by the hearsay rule, we should like to do so." That is what I am offering them a chance to do. So that, in addition to asking the noble Lord, Lord Harris, to talk about the hearsay rule, I should like him to consider this further substantive point that my Amendment raises. My Lords, I beg to move.

5.1 p.m.

Lord HARRIS of GREENWICH

My Lords, I believe I am right in assuming that the noble Viscount does not want me to spend too much time on the Amendment, but is more concerned with the wider question which he has raised. However, if I may just deal with the Amendment quite briefly, before coming on to the more general exposition of the case, the problem about this Amendment, which will not altogether surprise the noble Viscount, is that it is technically defective, because it is simply too wide in its scope. To give one example, it would apply, as worded, to reports obtained in criminal proceedings and could thus result in magistrates obtaining hearsay information before reaching a finding of guilt, which I am fairly certain is not the noble Viscount's intention.

I should like to address myself—and the noble Viscount appealed to me to do so—to the wider question, because this is an important matter and it might help the House, and, indeed, some outside it, to have this matter gone through in some detail. However, before coming to that, I hope that I can meet the noble Viscount on one point. I will gladly look into his suggestion about the circular. It is normal to send out circulars when one is implementing legislation of this character and I will look into the point to see whether it is practical.

The provision in Clause 11 is what I may call the "common form" provision on this point. The substance of this provision was inserted into the Guardianship Act 1973 and the Matrimonial Proceedings (Magistrates Courts) Act 1960 by Sections 90 and 91 of the Children Act 1975, and Sections 36 (3) and 39 of the 1975 Act apply this provision to proceedings relating to custodianship orders. If Clause 11 is enacted in its present form, the provisions governing welfare reports to magistrates' courts relating to the custody of children, or to the matters covered by Clauses 8 and 9 of this Bill, will all be covered by provisions in these terms.

The noble Viscount has expressed some concern about the application of the rule against hearsay to domestic proceedings where the custody of children is involved. We think that this problem is covered, at any rate for the most part, by this "common form" provision under which the report is copied to the parties in advance of the hearing, and any matters included in that report are admissible in evidence whether or not they are hearsay. This means on the one hand, that anything which the welfare worker or probation officer who is charged with compiling the report considers is relevant to the issue before the court, and also is, in his view, sufficiently reliable to be recorded, will be before the court; but, equally, that the parties will have seen the report and will therefore be able, if they think fit, to contest any statement which they consider to be false or misleading. The position has, of course, been thought to be otherwise in proceedings under the Children and Young Persons Act 1969, although this view must now be regarded as qualified by the Humberside County Council case. But I do not think that any such difficulty has arisen, or will arise, in relation to domestic proceedings as defined in this Bill.

The question has also been raised of the application to magistrates' courts of the Civil Evidence Act 1968. The position on this is that the Act can be applied in whole or in part to civil proceedings in any court, including magistrates' courts, by Statutory Instrument made by the Lord Chancellor. I understand that the Home Office considered this possibility in 1969 and 1970, and went so far as to prepare draft rules. But when the Department invited comments, they received strong objections from the Justices' Clerks' Society and the London Magistrates' Clerks Association, on the grounds, first, that the rules were too complicated; secondly, that they would have to introduce interlocutory proceedings which are inappropriate to magistrates' courts, where procedures are generally far simpler and speedier, and, thirdly, that it would hardly be fair for them to be brought against a party who was not legally represented. They were the three central objections which were made at that time.

The Department accepted those views then and the time may well have arisen when it would be appropriate to look at this matter again. Accordingly, I will undertake to ensure that that is done. On the other hand, as the Law Commission observed when commenting on pleading, there is a real risk—and I am quite sure that, with his substantial experience in these matters, the noble Viscount will agree with me—of over-complicating proceedings in magistrates' courts. However, in any event, fresh legislation is not necessary, because adequate rule-making powers already exist, as I have indicated. But I think it is right to look into the matter again, and will do so.

If we are to consider applying the Civil Evidence Act 1968, there is the further question of which parts of it are really relevant to the present issues which we have been discussing. I have already referred to the question of the admission of hearsay evidence, in so far as it is contained in reports by local authority welfare officers or probation officers. The Civil Evidence Act enables various out of court statements to be admitted as evidence of facts stated, and also for the admissibility of information contained in records or computers, and it is, of course, true that this could help in some domestic proceedings. However, as the Justices' Clerks' Society stated in 1969 and 1970, the structure of the 1968 Act is based on the assumption that there will be pleadings.

The Law Commission suggested in their report, on page 52, that Rules of Court, should provide for the introduction in the magistrates' matrimonial procedure of a very simple form of pleading. They explained later that what they had in mind was that information should be sent with the summons to inform the respondent of the ground for the application, and that where this is "unreasonable behaviour" the statement should indicate briefly the main facts on which the applicant intends to rely and to inform the respondent, if he intends to contest the claim, to state the grounds on which he proposes to do so. The Government accept this recommendation, but nothing about it is included in the Bill, because again, we consider that the existing rule-making power is there under Section 15 of the Justices of the Peace Act 1949, and is wide enough to cover the matter.

The introduction of these modified pleadings may, of course, also affect the objections originally offered by the Justices' Clerks' Society to the application of any part of the Civil Evidence Act, although it is only when we come to working out the rules that we shall be able to see to what extent this is so. However, I think the main conclusions are, on the one hand, that in the outcome the rules will go some way to meeting the general point made by the noble Viscount; and, on the other hand, that there is no need to amend the Bill to enable this point to be tackled, for the reasons that I hope I have made clear. I therefore suggest that it could be left aside for the time being, on the understanding that we shall take it up with the various bodies concerned with the running of the courts, when we return to the consideration of the rules.

5.10 p.m.

Viscount COLVILLE of CULROSS

My Lords, until I was told about it by the noble Lord, I had not appreciated the practical objections which had been raised to the commencement order that would be required applying the Civil Evidence Act to magistrates' courts. I think that those objections are impressive, although I am glad that the noble Lord is prepared to look at the matter again.

This has nothing to do with domestic proceedings, but may I say that I believe that sooner or later the moment will come when somebody challenges in the magistrates' court the validity of the distress proceedings on rating matters on the ground that since almost all rating authorities now issue their rate demands by computer there is absolutely no method whatever of proving that any document was ever issued, unless it is done under the procedure contained in Sections 5 and 6 of the Civil Evidence Act. So far as I know, the point has not yet been taken, but it is only a matter of time and then there will be trouble. That action will have to be taken under the 1968 Act.

So far as this Bill is concerned, I am happy to leave the noble Lord to pursue his own inquiries. However, I should like to suggest that there is one way out of the difficulty about the report that comes from a source other than the social worker or probation officer. It might be that ingenuity can get around the difficulty so that we may maintain uniformity of treatment throughout this body of legislation.

If the report comes secondhand through somebody else, I suppose that there is nothing to stop the court asking for a supplementary report by the social worker or probation officer, and when it arrived they could take account of it under Clause 11(3) to (6). If this is right, that, too, might be something which could be drawn to the court's attention in the circular, because it would provide a comprehensive sweeping up of all the material that might be necessary. I see that the noble Lord is nodding his head. Whether that means that he takes the point or agrees with it I shall leave until the time when the circular is issued. In the meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 4: After Clause 12 insert the following new clause:

Principle on which questions relating to custody and upbringing of children are to be decided

" . For the avoidance of doubt it is hereby declared that the provisions of section 1 of the Guardianship of Minors Act 1971 (which require a court in deciding any question relating to the custody or upbringing of a minor to have regard to the welfare of the minor as the first and paramount consideration) apply in relation to the exercise by a magistrates' court of its powers under this Part of this Act."

The noble Lord said: My Lords, I beg to move Amendment No. 4. This is a point which the noble Viscount raised when we last discussed the Bill. The purpose of the Amendment is to insert a new clause which provides explicitly, and for the avoidance of any possible doubt, that the provisions of Section 1 of the Guardianship of Minors Act 1971 shall apply to proceedings under Part I of the Bill. Section 1 of the 1971 Act provides that in any proceedings where the custody or upbringing of a child are in issue, the child's welfare shall be the first and paramount consideration.

This Amendment meets the undertaking that I gave to the noble Viscount when we discussed this matter in Committee; namely, to examine his suggestion that we should write into the Bill the principle that the child's welfare is paramount in relation to any decisions under Part I. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, all I need to do is to thank the noble Lord. I consider this to be a great improvement to the Bill.

On Question, Amendment 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]:

5.14 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 5: Page 15, line 22, leave out ("both") and insert ("more").

The noble Viscount said: My Lords, I put down this Amendment and also Amendment No. 6—and with them it might be convenient to look at Amendment No. 17 which is a proposed new clause much later on—because of the lack of finality of discussion about this matter during the last stage of the Bill. It will be seen in Clause 13 that a magistrates' court may make an order under subsection (3)(i) and (ii) which either requires the respondent to leave the matrimonial home or prohibits him or her from going back and entering it. What it does not do is to provide that the respondent shall allow the applicant to go into or stay in the matrimonial home. In other words, it does not prevent a lockout.

The difficulty that was put forward when we discussed this matter in Committee was that, although it was generally conceded that this could be a problem, first it was not reflected either in the Domestic Violence and Matrimonial Proceedings Act 1976 or in some other legislation which relates to this matter. I can see that it is probably a pity if we have a different range of powers covering this point in the different Bills, notwithstanding which there are problems at the moment about this area of law. If, therefore, we can find improvements I do not think that we should shrink from putting them into such legislation as we happen to have.

The other difficulty that was put forward was that the Law Commission had very firmly advised that no exclusion orders under this and the following clause should have any effect upon property rights. I imagine that the same thing is supposed to apply to the jurisdiction of the county court under the 1976 Act. So I thought that if I were to return to this matter at all I must express it clearly that there was to be no effect on property rights, and that is what I have done in both Amendment No. 7 and Amendment No. 17.

I do not think that the situation is entirely happy. Equally, I can see that it is not particularly easy for the Government readily to come to a conclusion one way or the other. I believe that the noble Lord has indicated that he would like further time in which to look at it. If so, perhaps the noble Lord could give us a progress report and say whether there is any chance that we can make an improvement here. I beg to move.

Lord HARRIS of GREENWICH

My Lords, as I indicated when the noble Viscount raised this question during the Committee stage, I found some attraction in his argument for giving magistrates' courts the power both to turn the violent spouse out of the matrimonial home and to let the victim of the violence return if that person had fled from the house on account of violence. However, the Law Commission considered this possibility and recommend against it.

I make that point not in order to oppose the proposition of the noble Viscount but simply to set out the matter for the purposes of historical accuracy. It may well be that subsequent events, including a provision in the Domestic Violence and Matrimonial Proceedings Act 1976 which is similar to the first of the two Amendments which have been moved by the noble Viscount, would justify some modification of the Law Commission's opinion. However, as the noble Viscount has recognised, this is clearly a matter of some importance. That being so, I have discussed it with my honourable friend the joint Minister of State at the Home Office who deals on a day-to-day basis with these questions. We have agreed to consult the chairman of the Law Commission before taking a decision, and the Home Office is now in the process of doing just this.

Similar considerations apply to the declaratory provisions which the noble Viscount's Amendments would insert in Clause 13 and as a new clause after Clause 56, to the effect that orders pro- habiting a spouse from occupying the matrimonial home which are made under Clause 13 of the Bill, Section 1 of the Matrimonial Homes Act 1967 or Section 4 of the Domestic Violence and Matrimonial Proceedings Act 1976 shall not affect property rights.

As the noble Viscount will know, declaratory provisions have to be examined with particular care, since sometimes they produce unexpected and wholly unintended results. Although I am speaking on this occasion for the Government and not for the Home Office alone, perhaps I may be permitted to say that this complex question of property rights which arises in consequence of matrimonial disputes is more the concern of other Government Departments than of the Home Office itself. I must, therefore, be careful to ensure that my other ministerial colleagues are fully consulted about this proposal, but again I shall gladly do that.

I regret that I cannot give any firm undertaking about these matters before the Bill leaves this House. Because of their complexity, I fear that that would be an unrealisable hope. But I undertake on behalf of the Government that if the noble Viscount will withdraw his Amendments we will consider them very carefully in the light of the consultations I have indicated are already in train on whether Amendments on these general lines should be introduced, and if we come to the conclusion that that would indeed be appropriate we will arrange to introduce them in another place. In any case, of course, I would naturally let the noble Viscount know the outcome.

Baroness WARD of NORTH TYNESIDE

My Lords, it is very difficult for a non-legal person to understand these things. Do we know why the Law Commission objected?

Lord HARRIS of GREENWICH

My Lords, I do not, unhappily, speak for the Law Commission on this occasion; I find it a fairly fulltime job replying on behalf of the Government. The Law Commission did examine this matter and came to this particular conclusion for a number of reasons. I will gladly give the noble Baroness as much indication as I can on behalf of the Law Commission. I cannot do it at this moment, but I will gladly write to the noble Baroness and let her have all the information available to us as to the reasons why they came to this particular conclusion.

Viscount COLVILLE of CU LROSS

My Lords, I am greatly encouraged by what the noble Lord has said. Nobody, I least of all, would ever suggest that my drafting is anything other than the most tentative, but I think I have suggested that there may be methods of legal approach whereby one could creep up on this matter. Of course, any improvements would be something I would very much welcome. I am grateful that the Government are prepared to reconsider this matter and look at it on the whole broad basis of this area of the law. I would have been astonished if they had been able to come to any conclusion at this stage, or indeed in this House, and I will happily leave it to those in another place to chase the Ministers there if there should be any backsliding in the very encouraging approach we have had today. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 and 7 not moved.]

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

Lord HARRIS of GREENWICH moved Amendment No. 8: Page 19, line 44, at end insert (", except that the court shall not by virtue of this subsection extend the period for which the order is in force.").

The noble Lord said: My Lords, I beg to move Amendment No. 8, and I can perhaps take No. 11 at the same time. These are drafting Amendments.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 9: Page 21, line 6, leave out ("14") and insert ("15").

The noble Lord said: My Lords, I beg to move Amendment No. 9. This is a minor drafting correction.

On Question, Amendment agreed to.

5.24 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 10:

Page 21, line 30, at end insert — (" ( ) There may be prescribed by rules the circumstances in which and the means (including the service of notices) whereby the court may of its own motion initiate proceedings under this section to vary or revoke an order.").

The noble Viscount said: My Lords, I have found a resource point in this Bill that the Government have not picked up. I am bound to say that I owe it to the researches of a most hardworking and meritorious group of magistrates in Manchester, a copy of whose conclusions on this legislation I have sent to the noble Lord. The point they are raising is this—and it goes with my Amendment No. 14. There are, of course, circumstances where a wife with family who has been given maintenance under his Bill its in fact still not receiving enough money from her husband to bring her above the level to which she is entitled to supplementary benefit. Therefore, the Department of Health and Social Security step in and take over the provision for herself and her family at whatever is the proper rate of supplementary benefits. They also take over the receipt of the money under the maintenance order by dealing direct with the justices' clerk.

The difficulty is this, and it is twofold—in fact I think there are three problems but only two are dealt with in my Amendments. First of all, if a man, knowing that his wife and family are in any event being supported by supplementary benefits, simply ceases paying, that does not worry the wife because she is getting more money anyway from the Supplementary Benefits Commission. Therefore, there is no incentive on her to seek to enforce the order made by the magistrates' court. She is in either event going to get the same money whether she enforces the order or not, and it is rather unpleasant to have to go and enforce it.

The second point is that if she should happen to know that her husband has got a better job, and is therefore able to supply his family with more money than he formerly could under the original order, she could, of course, go and seek a variation; but if the extra amount will still not bring her above the level of supplementary benefits there is no incentive on her to do it. In each case it is the public purse that suffers. Instead of the man supporting his family it is being done by the Supplementary Benefits Commission, and so far as I can see the Bill provides them with no machinery whereby they can seek to enforce the order, or indeed seek to vary it, if appropriate.

There is a third point which I have not put down but which comes into this context. If a wife who has been separated from her husband does not go to the court at all but merely claims supplementary benefit, there is no order ever made under this Bill. One wonders whether somebody ought to be allowed to initiate proceedings whereby the husband is forced to maintain his wife. There is a precedent for this, because where there is an illegitimate child the Supplementary Benefits Commission have powers to initiate proceedings for an affiliation order under Section 19 of the Supplementary Benefits Act 1976.

I have not put it down in that form. I thought it might be better to approach it from the point of view of the court looking after its own orders. I have, therefore, drafted these points in the terms that the court itself would be able to take the initiative if facts were drawn to its attention by, for instance, the Department of Health and Social Security which warranted an enforcement of the order or a variation of the order. It also seemed to me that it was going to be much too complicated to do it by substantive legislation, and it was also likely to require to be amended if it was done at all, and therefore it should be done by rules. That is what these two Amendments are about. I think they do highlight a real problem. I have not invented them. They have come from experienced magistrates who deal with these matters day by day. I do not suggest I have found the right solution, but I do think I have highlighted the right problem, and it is one that needs to be dealt with at some time. I beg to move.

5.28 p.m.

Baroness WARD of NORTH TYNESIDE

My Lords, I think my noble friend has raised a very important point indeed. My experience, not only as a magistrate but as a member of another place for over 38 years, and having a lot to do with people's problems, is that it is very difficult indeed to suggest that a woman placed in the kind of difficulty which my noble friend has illustrated has to go down to the court to find out what her rights really are. My experience is that if you ask many poor women, so to speak, to go down to a court to find out what their rights are they think you are suggesting that they should get in touch with the police; that frightens them, and they do not like going.

If I may raise one experience of my own, I remember a woman who had moved into a fairly new council house; her husband was a lorry driver, a very good lorry driver, but he drove from East of the Pennines to the other side of the Pennines. He was already under an obligation to pay maintenance to his wife. While she went out shopping he went to the house and he removed every single piece of furniture. She had five children. By the time she returned to her house there was no bedding; there was absolutely nothing at all left for her.

The difficulty of trying to deal with this matter is very complicated. The woman herself is not in any position to take action, and once one gets involved in a case of that kind it seems to go on for ever—rather like the Crown Agents issue, it goes on for ever. Now that we are dealing with this Bill, and the difficulty of women themselves not liking to take action, or being frightened to take action or not knowing how to take action is recognised, if we can have something to cover them it would make a tremendous difference to many women who get involved in this difficulty. I am very pleased that my noble friend has raised this point and I am sure that the noble Lord opposite will be able to help.

Lord HARRIS of GREENWICH

My Lords, we are all indebted to the noble Baroness for the speech she has just made. I have listened with great care to what she has said emphasising the difficulty of the matters we have before us at the moment. Having said that, I approach the proposition of the noble Viscount with a degree of warmth, and indeed almost enthusiasm, so far as one particular aspect is concerned—that is, his desire to protect public funds. There is no difference between us on this matter; it naturally has great appeal to us. He has raised a matter of some importance and we are indebted not only to the noble Viscount but to the Manchester justices for having drawn our attention to this.

As I am sure the noble Viscount will recognise, obviously it has not been possible in the time available since he put down his Amendment to consult the significant and indeed formidable number of interests which would be affected by a proposal of that sort, and therefore, unhappily, I cannot enter into any firm commitment, as far as the Government are concerned, beyond giving an undertaking, which I gladly do, of considering this matter with some care and attention which certainly in my view it deserves. I think it was probably right for me to say that, although a rule-making power could well be a useful device, I am not sure that an unfettered power for the court to take the initiative upon its own motion is necessarily the right answer. For example, it would not normally have the sources of information on which the desirability for such an initiative could be based. Nevertheless, the noble Viscount has raised an interesting matter, and indeed a matter of some importance, and I shall gladly undertake to go into it. Unhappily, so far as this matter is concerned we have not a great deal of time ahead of us and it will have to be gone into, as I am sure it will with some thoroughness, in another place.

Viscount COLVILLE of CULROSS

My Lords, once again I am extremely grateful to the noble Lord. I put the Amendment down in this form because it kept the matter within the Home Office territory. If one drafts Amendments on the basis that the Supplementary Benefits Commission or the Department of Health is able to apply for a summons, as they do under an affiliation order procedure, I can instantly see that even more complications would occur. I should have thought that the rules could provide that the justices took account of information that was received from the Supplementary Benefits Commission or the probation officer or indeed a local authority, so I do not think it is impossible to do it along these lines. However, I am not advocating this particular approach but simply that something should be done, and with the promise that the noble Lord has given, and if the House will allow me, I am glad on this occasion to ask to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord HARRIS of GREENWICH moved Amendment No. 11: Page 22, line 14, at end insert (", except that the court shall not by virtue of this subsection extend the period for which the order is in force.").

The noble Lord said: My Lords, I beg to move Amendment No. 11. I spoke to this when I moved Amendment No. 8.

On Question, Amendment agreed to.

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

Lord HARRIS of GREENWICH moved Amendment No. 12: Page 23, line 10, leave out ("any such application") and insert ("an application under section 16 of this Act").

The noble Lord said: My Lords, I beg to move Amendment No. 12. This is a drafting Amendment which removes what would otherwise be an anomaly relating to liability to cost in matrimonial cases.

On Question, Amendment agreed to.

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

Lord HARRIS of GREENWICH moved Amendment No. 13: Page 28, line 2, leave out ("£10") and insert ("£50").

The noble Lord said: My Lords, I beg to move Amendment No. 13. This Amendment is similar to the Amendment to Clause 9 which I moved earlier relating to the point put to us by the noble Baroness, Lady Macleod of Borve, in Committee. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, I do not know where my noble friend is, but she said at lunchtime that she was extremely grateful and I am sure it is only proper that I should say so in public.

On Question, Amendment agreed to.

[Amendment No. 14 not moved.]

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

Lord McCLUSKEY moved Amendment No. 15: Page 53, line 1, after ("maintenance") insert ("for the benefit of the applicant").

The noble and learned Lord said: My Lords, this is simply a drafting Amendment relevant to Scotland only. It is intended to make it clear that the conditions for making an award of maintenance, laid down in what is now Clause 54(1)(d) of this Bill, apply only where a divorced spouse claims maintenance for his or her own benefit. These conditions will not apply where a divorced spouse claims maintenance for the benefit of a child. The conditions laid down in Clause 54(1)(d) are clearly relevant only where a divorced spouse is claiming maintenance for himself or herself. A divorced spouse can at present claim aliment for the benefit of a child without fulfilling these conditions and there is no reason to change this. I beg to move.

On Question, Amendment agreed to.

5.37 p.m.

Lord McCLUSKEY moved Amendment No. 16: After Clause 54, insert the following new clause:

Eligibility for Legal Aid in Scotland for proceedings under Maintenance Orders (Reciprocal Enforcement) Act 1972

(".After section 43 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 there shall be inserted the following section— 43A.— (1) In connection with proceedings under Part I of this Act in relation to a maintenance order made by a court in a reciprocating country, where there is produced a certificate from the responsible authority in that country to the effect that the payee would, in that country, be financially eligible for complete or partial—

  1. (i) legal aid; or
  2. (ii) exemption from costs or expenses,
in proceedings there in relation to that maintenance order, sections 2(1) and (6)(c) and (d), 3 and 4 of the Legal Aid (Scotland) Act 1967 shall not apply in respect of the payee and, subject to the other provisions of that Act, legal aid shall under that Act be available to the payee without inquiry into the payee's resources. (2) In connection with proceedings under Part II of this Act—
  1. (a) arising out of an application received from a convention country for the recovery of maintenance; or
  2. (b) relating to an order made in respect of such an application,
where there is produced a certificate from the appropriate authority in that country to the effect that the applicant would, in that country, be financially eligible for complete or partial —
  1. (i) legal aid; or
  2. (ii) exemption from costs or expenses,
in proceedings there for the recovery of maintenance, sections 2(1) and (6)(c) and (d), 3 and 4 of the said Act of 1967 shall not apply in respect of the applicant and, subject to the other provisions of that Act, legal aid shall under that Act be available to the applicant without inquiry into the applicant's resources. (3) Where, in connection with proceedings under Part I or II of this Act, a person has received legal aid by virtue of subsection (1) or (2) above, legal advice and assistance under the Legal Advice and Assistance Act 1972 shall, notwithstanding—
  1. (i) any financial conditions imposed by, or by virtue of, sections 1 and 4(2), (3) and (4); and
  2. (ii) in relation to the effect of subsections (1) to (4) and (7) of section 4 of the said Act of 1967, the provisions of section 6(1)(b),
of the aid Act of 1972 (but subject otherwise to the provisions of the said Act of 1972), be available in Scotland for that person, without inquiry into his resources, in connection with any matter incidental to, or arising out of, those proceedings. (4) In subsection (1) above "maintenance order" "reciprocating country", "responsible authority" and payee "have the same meanings respectively as in Part I of this Act; and in subsection (2) above" convention country "means a country or territory specified in an Order in Council under section 25(1) of this Act," maintenance "has the same meaning as in Part II of this Act, and" appropriate authority "means the authority from which the Secretary of State received the application." ")

The noble and learned Lord said: My Lords, this is a somewhat lengthy Amendment designed to meet a small but awkward problem which has arisen in relation to persons overseas who seek to claim maintenance against residents of Scotland. The Maintenance Orders (Reciprocal Enforcement) Act 1972 provides for courts in the United Kingdom to deal with two types of application from overseas: maintenance orders made by courts in reciprocating countries under Part I of the Act, and maintenance claims transmitted from countries which have ratified the 1956 United Nations Convention on Maintenance under Part II of that Act. Part I orders and part II claims are received by the appropriate Secretary of State and transmitted by him for action by the magistrates' or Sheriff Court in the area where the payer specified in the order or claim is believed to reside.

In England, Wales and Northern Ireland the necessary subsequent action to have orders registered or made by the court, and enforced against the payer, is taken by court officers (the justices' clerks) without any charge being made to the overseas applicant for the service. However, in Scotland, this is not the case because court officers in Scotland do not have the same functions as their counterparts have in other parts of the United Kingdom, and in particular there is no court-operated system for the recovery of maintenance awarded by the courts.

Accordingly, the Secretary of State for Scotland has to arrange with the Law Society of Scotland for the proceedings to be entrusted to a solicitor in private practice so that he can take the necessary action. The solicitor naturally expects to be paid for his work; but, while the proceedings involved qualify for legal aid under the Legal Aid (Scotland) Act 1967, the assessment of a claimant's means to see whether she qualifies for aid, and, if so, whether she is liable to pay a contribution, poses considerable administrative difficulties which have not yet been satisfactorily resolved, and indeed might also involve large costs. In addition, it is possible that an overseas claimant living in a country with a strong currency and a high cost of living might find herself ineligible for legal aid in this country, although in her own country she would be regarded as living in something near to the poverty line.

This situation, apart from the administrative difficulties to which it has given rise, also exposes Scotland to the charge that it does not provide any kind of reciprocity to claimants from other countries where maintenance is collected at no charge on behalf of applicants in Scotland—I understand that these include Canada, Australia and New Zealand.

It would not be practicable in this limited context to provide for court officers to collect maintenance. This is something which has to be looked at in the much wider area of diligence, which is at present being examined by the Scottish Law Commission. But we think that it should be possible to give a considerable measure of help here by relaxing the normal conditions for the payment of legal aid so as to provide that applicants under the 1972 Act will be eligible to receive aid without having their resources assessed or having to pay contributions towards their costs. This is what the present Amendment does; and it also provides that where an applicant has received legal aid for the enforcement of an order she may receive legal advice and assistance free for any matters connected with or arising out of the proceedings. This is to cover the case where a legal aid certificate for enforcement has expired; the person against whom the order is made has ceased to pay; but there seems a possibility that payments could be restarted if a solicitor's letter were sent to him. Subsection (3) of the new clause makes such an arrangement possible.

Finally, the clause is drafted so as to provide that free legal aid and assistance will be given to claimants who in their own country would be entitled to complete or partial legal aid or exemption from legal costs. This would be certified by the relevant authority in the foreign country transmitting the claim. While a provision in these terms would possibly not cover all applicants, we think that it would certainly be applicable to the majority of them, and there should be some safeguard against the granting of legal aid to persons who would not qualify for it in their own country. I should mention that there is a subsequent Amendment—Amendment No. 28—which is purely consequential upon this Amendment and will add the new clause to those provisions which apply in Scotland. However, at present I content myself with moving Amendment No. 16. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, all I need say is that it is valuable to have had this rather complex matter explained to the House so that it may be read by those concerned. Having heard it, I for my part think that it is an improvement to the Bill and I hope that the House will insert the new clause as set out.

Lord McCLUSKEY

My Lords, having looked carefully at the new clause I have raised a specific question about one part of it—that is to say, the wording of subsection (1) of this new clause relating to Section 2(6)(d) of the Legal Aid (Scotland) Act 1967, to which reference is made. That is a matter which may be reconsidered and I hope that those who read what I have said will also bear in mind that it is now being reconsidered.

On Question, Amendment agreed to.

[Amendment No. 17 not moved.]

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

Lord HARRIS of GREENWICH moved Amendment No. 18: Page 60, line 39, leave out ("or (b)") and insert ("(b) or (e)").

The noble Lord said: My Lords, I beg to move Amendment No. 18 and perhaps at the same time I may speak to Amendment No 19. I do not think that there is anything between the noble Viscount and myself on this particular matter. Amendment No. 18 has the same effect as the Amendment proposed by the noble Viscount, but the re-lettering is due to an Amendment made in the Committee stage to Section 34 of the Children Act 1975 which is now embodied in Clause 57.

Viscount COLVILLE of CULROSS

My Lords, I think that I did get it right originally. When I inserted the new Clause 34 I put in a little subsection (bb) and I did not spot that the draftsman had renumbered the paragraphs. Therefore, we are talking about the same thing. We are absolutely at one and I am very happy to accept Amendment No. 18 and thank the noble Lord.

On Question, Amendment agreed to.

[Amendment No. 19 not moved.]

Clause 73 [Domestic courts]:

Lord HARRIS of GREENWICH moved Amendment No. 20: Page 70, line 44, leave out ("county palatine of Lancaster") and insert ("countries of Greater Manchester, Merseyside and Lancashire").

The noble Lord said: My Lords, I beg to move Amendment No. 20. At the same time, I should like to speak to Amendment No. 21. Clause 73(6), to which this is a small amendment, refers to the rules which will give powers to the Chancellor of the Duchy of Lancaster to exercise functions in relation to domestic courts and domestic court panels.

Under the Administration of Justice Act 1973, re-enacting on this point the Local Government Act 1972, the Chancellor of the Duchy of Lancaster is responsible for appointing justices throughout the counties of Greater Manchester, Lancashire and Merseyside. The boundaries of these counties are not coterminous with the boundaries of the County Palatine of Lancaster. An Amendment is therefore needed here to relate the responsibilities of the Chancellor of the Duchy under the rules to the three administrative counties, rather than to the historical county of Lancaster. The second Amendment is a minor one consequential upon the first. I beg to move.

On Question, Amendment agreed to.

Lord HARRIS of GREENWICH moved Amendment No. 21: Page 71, line 3, at end insert ("of Lancaster").

The noble Lord said: My Lords, I beg to move Amendment No. 21. I have already spoken to this Amendment.

On Question, Amendment agreed to.

The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)

My Lords, I must call your Lordships' attention to the fact that, if Amendment No. 22 is agreed to, I shall not be able to call Amendments Nos. 23 or 24.

Clause 74 [Persons who may be present during hearing of domestic proceedings]:

Lord HARRIS of GREENWICH moved Amendment No. 22:

Page 72, line 20, leave out subsection (1) and insert— (" (1) For subsection (2) of section 57 of the Magistrates' Courts Act 1952 there shall be substituted the following subsection— (2) In the case of domestic proceedings in a magistrates' court other than proceedings under the Adoption Act 1976, no person shall be present during the hearing and determination by the court of the proceedings except—

  1. (a) officers of the court;
    2. 433
  2. (b) parties to the case before the court, their solicitors and counsel, witnesses and other persons directly concerned in the case;
  3. (c) representatives of newspapers or news agencies;
  4. (d) any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance.".")

The noble Lord said: My Lords, I beg to move Amendment No. 22. This is a matter which we discussed in Committee and, at some length, on Second Reading, when it appeared that there were some divergences of approach as regards this particular question. I hope that the Amendment which I have moved and the explanation which I propose to give will satisfy both sides of this particular argument.

Clause 74(1) specifies the persons who may be present in court. during domestic proceedings and provides for a measure of privacy—which I think we are all in favour of as far as these particular proceedings are concerned—to apply to those proceedings, by cutting down the numbers of observers who may attend. Fears were expressed at the Committee stage that the court would not have discretion to admit a close friend or relative of either party, or members of the legal profession wanting to gain experience of such proceedings. We have put down this Amendment to make it clear that that is not the intention of the clause: we merely wish to give the courts discretion in this matter. This is done by making certain changes in Section 57(2) of the Magistrates' Courts Act 1952 and setting it out in full in the Bill. By virtue of this Amendment, among the persons who may be present are, as your Lordships will see, any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance". In other words, the court may at its discretion enable relatives and solicitors and counsel who wish to observe the proceedings to do so. The retention of the existing proviso places the onus on the court not to withhold permission if it appears that such persons have adequate grounds for attending. Having listened to the arguments on this matter on both occasions, I think that this meets most of the anxieties that have been expressed—in any event, I very much hope so. I beg to move.

Viscount COLVILLE of CULROSS

My Lords, it certainly meets mine and I welcome it. It is a good deal better than Amendments Nos. 23 and 24.

Lord HALE

My Lords, I should like to join in the congratulations and felicitations and say no more.

Baroness WARD of NORTH TYNESIDE

My Lords, I should like to ask one question. The magistrates' court has to consider the matter. If, for instance, among those who are representing for the adoption, someone has an objection, have they a right to say so to the court?

Lord HARRIS of GREENWICH

My Lords, I think that the matter to which the noble Baroness is referring comes later in our proceedings.

On Question, Amendment agreed to.

[Amendments Nos. 23 and 24 not moved.]

5.50 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 25: Line 34, leave out (" (d) and (e)") and insert ("(c) and (d)").

The noble Lord said: My Lords, this Amendment is consequential. I beg to move.

On Question, Amendment agreed to.

Viscount COLVILLE of CULROSS moved Amendment No. 26: At end insert ("but so that the court may, upon the application of any person made before or during the hearing of any proceedings under that Act permit any person to whom such applicatio relates to be present during the hearing and determination of any proceedings specified by the court for that purpose.")

The noble Viscount said: My Lords, this is the Amendment about adoption proceedings and the time when my noble friend Lady Ward of North Tyneside might like to ask her question. There is a difference between all other domestic proceedings and adoption proceedings. Indeed, one can see that from the wording of Amendment No. 22, which we have just discussed.

I wanted to table this Amendment in order to ask the noble Lord, Lord Harris of Greenwich, to explain the difference and how it works, because I think that, out of the entire list, only in adoption proceedings will there be separate rules about who can be there. It would be helpful if, first, we could all hear what they are and then consider whether we still think that they are right. I beg to move.

Lord HARRIS of GREENWICH

My Lords, the Government are not particularly enthusiastic about this Amendment proposed by the noble Viscount, but, as I understand it, he simply wishes me to state the situation as we see it. If I may, I shall deal for a moment with the Amendment. This would give the courts a discretion to admit to adoption proceedings persons who are not directly concerned in the case. It has long been the practice to hold adoption proceedings in private in order to safeguard the anonymity of the child. The only certain way to ensure that the court or its parents are not identified is to hold the proceedings in camera.

Viscount COLVILLE of CULROSS

My Lords, the noble Lord must mean "the child or its parents".

Lord HARRIS of GREENWICH

My Lords, I apologise. It just shows that after an hour and a half on this Bill one must be permitted a verbal slip of that sort. The noble Viscount is, of course, quite right. The only certain way to ensure that the child or its parents—I think that the court will probably be identified—are not identified, is to ensure that the proceedings take place in camera. Indeed, that has been the situation since the Adoption Act, 1958.

This preservation of the existing position won general support by the organisations which were consulted on the Law Commission's recommendations and was also specifically approved by the Departmental Committee on the Adoption of Children whose first chairman was Sir William Houghton and whose second chairman was Judge Stockdale. This committee, which reported in October 1972 in Command 5107, said in paragraph 270: the law requires adoption cases to be dealt with in private. We are sure that this is right. The Government continue to think this is right. We think that we should preserve the existing law by limiting the persons who may be present to those whose presence is essential to the case. The importance of anonymity overrides the other considerations. It is for this reason that provision is made in Section 12(1)(b)(i) of the Children Act and the adoption rules for a parent or guardian to consent to adoption without knowing the identity of the applicants and for the proceedings to be considered, in certain circumstances, without the applicant becoming known to the respondent. It would be incompatible with this general scheme to give the general discretion which would be conferred by the Amendment. We have considered this matter. We think that the existing approach is probably the right one, but we certainly considered the matter as a result of the noble Viscount's Amendment.

Baroness WARD of NORTH TYNESIDE

My Lords, first, may I explain that during my life I have had much to do with adopted children, not for myself but for my friends. Will a general instruction be sent out to the courts on this particular Amendment? Quite recently in the Parliamentary system we decided that an adopted child could now apply, through the proper procedure, to find out who his or her mother was. That is certainly being used by one or two of the adopted children of whom I have knowledge.

It is tremendously important that we should get the matter absolutely straight, because, from the point of view of those who adopt children and of the children themselves afterwards, I am not certain whether I should be very much in favour of this Amendment. But I should like to know what action will be taken so that the court is in a position to decide. Will courts receive a circular on this? After all, there could be a court of magistrates who might not be the right type of magistrates to be on a court of that kind. Therefore, it is a very important issue for Parliament to decide at the present time.

Lord HARRIS of GREENWICH

My Lords, perhaps I may have the leave of the House to speak a second time. The noble Baroness has raised an important question; namely, the attitude of magistrates and whether a bench of magistrates might simply get it wrong. That emphasises the point to which we devoted a great deal of attention; namely, the training of magistrates. I believe that, as a result of the passage of this Bill, this will in the future be carried out on a much more rational and planned basis than was the situation prior to the Bill. The noble Baroness, Lady Faithfull, was one of those who raised this particular important question. Certainly, we have already discussed the matter of a circular. I shall glady consider whether it is necessary to re-emphasise the situation. The Government's position is that we should stand on the existing situation, but I repeat that I shall gladly look into whether it is necessary to emphasise the particular question as regards these adoption procedures.

Baroness MACLEOD of BORVE

My Lords, perhaps I may apologise for being kept unduly long elsewhere, but I should like to ask the noble Lord whether it is still the intention to admit the Press to the domestic courts but to exclude them from the adoption courts, as is the case at present?

Viscount COLVILLE of CULROSS

My Lords, yes. It was in order to clear up this sort of thing that I put down this Amendment. I am very grateful to the noble Lord for considering and restating the existing practice. We can now find it all in one place. That was all I had in mind. I do not think that my noble friend Lady Ward of North Tyneside need worry, because the question of someone discovering who his or her real parents were does not arise until he or she reaches the age of 18. Therefore, I should have thought that there was no question of it arising when the adoption proceedings are considered in the first place. Therefore, there is no conflict at all between this particular provision and that other more recently introduced measure. Having heard the noble Lord, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 76 [Reports by probation officers on means of parties]:

5.58 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 27:

Page 73, line 36, at end insert— ("( ) there shall be omitted the words in subsection (1) "in which an order may be made" to "any matter of bastardy").

The noble Viscount said: My Lords, I have a nagging feeling here that technically there is something which we can do to improve the Bill. It is to do with the definition of "domestic proceedings". In Clause 72 there is a complete, new and up-to-date list of what domestic proceedings consist of. Section 60 of the Magistrates' Courts Act 1952, which is what Clause 76 is all about, talks about what is, in effect, a means report which can be asked for in the case of certain domestic proceedings. Section 60 of the 1952 Act as it now stands relates to: any domestic proceedings in which an order may be made for periodical payment … or … for any proceedings for the enforcement or variation of any such order, or … any matter of bastardy".

The noble Lord has answered me in one of his letters as to the first part, in that it is necessary to make sure that the magistrates have the power to ask for means reports when they are dealing with variation orders as well as original orders, because these need not necessarily be domestic proceedings, and they can choose whether they are or not. But what now puzzles me, having read that letter and since I received it, which I am afraid was after I tabled the Amendment, is why we still keep in the reference to bastardy proceedings, because these are automatically domestic proceedings under the list in Clause 72; and if we pick those out here in Section 60 of the Magistrates' Courts Act, when we have already included them as domestic proceedings anyway under the new Clause 56, I think that there will be some distinction looked for by the lawyers which I am sure is not intended. Therefore, this has turned itself into a pure matter of drafting. If the noble Lord cannot answer me at this stage I shall certainly not blame him, but I think that there is one more small point here to tidy up. I beg to move.

Lord HARRIS of GREENWICH

My Lords, I am grateful to the noble Viscount for having explained the purpose of this Amendment. I think that the Amendment which he has proposed would lead to a change of substance which, from what he has just said, I do not think is his intention. I should like to explain, as briefly as possible, why it would have that effect.

This Amendment would make some changes in the provisions of Section 60(1) of the Magistrates' Courts Act 1952, which enables a magistrates' court to request a probation officer to report on the means of the parties. At present the court may request such a report in any domestic proceedings in which the court may make an order for periodical payments and in proceedings for the variation or enforcement of such an order. The Amendment would allow the court to request a report in any domestic proceedings without, in other words, that rather important qualification.

In order to avoid any doubt on this point I should say briefly what is meant by the term "domestic proceedings" in Section 60 of the 1952 Act. "Domestic proceedings" in this section means proceedings defined as domestic proceedings by Section 56 of the 1952 Act. Clause 72 of the Bill replaces the present Section 56 with a new section containing a comprehensive definition of domestic proceedings. In referring to "domestic proceedings" in the discussion on this Amendment we are therefore referring to that term as defined in Clause 72 of the Bill. I appreciate that the noble Viscount was hoping in this Amendment to clarify the provisions of Section 60(1) by substituting a rather more straightforward reference to domestic proceedings for the present more complicated wording. However, there are two reasons why we regard this Amendment as having an undesirable effect.

The first is that the Amendment would allow a court to call for a means report in any domestic proceedings, a point I made a moment ago. On the present wording the court may call for a report only in domestic proceedings in which it has power to make an order for periodical payments. There are some domestic proceedings, as for instance proceedings under the Marriage Act 1949, and adoption proceedings, in which the court has no power to make an order for periodical payments. There seems to be no reason in such a case to allow the court to make use of the power in Section 60 of the 1952 Act to call for a report on means. The power in Section 60 is intended for use in a case where a court has power to make an order for financial provision and is uncertain whether or not, or how, to exercise that power. If Section 60 were extended to apply to all domestic proceedings the courts might begin to make use of it in a more general way. We think it right that the power to call for a means report should be explicitly restricted to cases in which the court has power to make an order for periodical payments.

May I just make one other point, which the noble Viscount will recall we discussed on the last occasion this Bill was before the House. As these reports are made by the Probation Service, I am sure he would accept my general view on this matter that it would not be desirable to impose further burdens on the Probation Service, which is already under some degree of pressure, when in fact there was no reasonable cause for that work to be done. That is the first reason why we are unhappy about the phraseology of the noble Viscount's Amendment.

The second reason why we think the Amendment would have an undesirable effect is that it would remove the present power in Section 60 to call for a means report in proceedings for the variation or enforcement of an order for periodical payments. Variation and enforcement proceedings are not domestic proceedings, and that is why, as I have indicated, we are unhappy about this Amendment, and for the other reasons I have given.

Viscount COLVILLE of CULROSS

My Lords, as I think I indicated, I had to draft this Amendment before I got the letter of explanation and I am very happy to accept that. The only thing we now have left is the reference to any matter of bastardy. That, I think, is plainly within the lists in Clause 72. If it is in the list in Clause 72, there is no need in that case to repeat that, and that alone, of the list in Section 60 of the Magistrates' Courts Act.

Lord HARRIS of GREENWICH

My Lords, I think that the present wording is rather antiquated, and I shall look into the possibility of making a drafting Amendment on a subsequent occasion.

Viscount COLVILLE of CULROSS

My Lords, I am very much obliged to the noble Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 82 [Short title and extent]:

Lord McCLUSKEY moved Amendment No. 28:

Page 77, line 36, after ("54,") insert— ("(Eligibility for legal aid in Scotland for proceedings under Maintenance Orders (Reciprocal Enforcement) Act 1972)").

The noble and learned Lord said: My Lords, as I explained earlier, this is purely consequential on Amendment No. 16 and the new clause which your Lordships allowed to be inserted. I beg to move.

On Question, Amendment agreed to.

6.6 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 29: Page 78, line 4, after ("13") insert ("(Amendment of s. 8(3) of Maintenance Orders (Reciprocal Enforcement) Act 1972),").

The noble Lord said: My Lords, this Amendment is linked with one of the Government Amendments to Schedule 2. The Amendments to Schedule 2 increase from £10 to £50 the penalty for failure to notify a change of address under various provisions in domestic proceedings legislation. They are the "Macleod Amendments", if we may so describe them. I beg to move.

On Question, Amendment agreed to.

Schedule 1 [Transitional provisions]:

Lord HARRIS of GREENWICH moved Amendment No. 30: Page 80, line 15, at end insert— ("8. A provision of Schedule 2 to this Act which relates to the punishment by way of fine which may be imposed for any offence shall not affect the punishment which may be imposed for an offence which is committed before the date on which that provision comes into force.").

The noble Lord said: My Lords, as we have agreed that the maximum fines for failing to notify a change of address should be increased from £10 to £50, a transitional provision is needed to clarify the position for magistrates hearing cases which cut across the date the new fines come into force. I beg to move.

On Question, Amendment agreed to.

Schedule 2 [Minor and consequential amendments]:

The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)

My Lords, does the noble Lord wish to move the remaining Amendments en bloc?

Viscount COLVILLE of CULROSS

Please.

Lord HARRIS of GREENWICH moved Amendments Nos. 31 to 38:

Page 81, line 1, leave out ("subsections (1), (2) and (4) of")

Page 81, line 1, after ("Act") insert— ("(a) in subsections (1), (2) and (4)") line 3, at end insert— ("(b) in subsection (2)(c) for the words "£10" there shall be substituted the words "£50".")

Page 82, line 5, at end insert—

("The Affiliation Proceedings Act 1957 (c 55)

In section 9(2) of the Affiliation Proceedings Act 1957 for the words "£10" there shall be substituted the words "£50".")

Page 84, line 6, at end insert—

("The Guardianship of Minors Act 1971] (c 3)

In section 13(2) of the Guardianship of Minors Act 1971 for the words "£10" there shall be substituted the words "£50".")

Page 84, line 13, at end insert—

("In section 8(3) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 for the words "£10" there shall be substituted the words "£50".")

Page 84, line 14, leave out ("the Maintenance Orders (Reciprocal Enforcement) Act 1972") and insert ("that Act")

Page 86, line 31, at end insert— ("In section 43(2) of that Act for the words "£10" there shall be substituted the words "£50".")

The noble Lord said: My Lords, I am glad to have the enthusiastic support of the noble Viscount in that proposition. I beg to move Amendments Nos. 31 to 38. All these Amendments, except the first two, increase the maximum fine for the offence of failing to notify a change of address from £10 to £50 in the various Acts, or parts of Acts, which, by virtue of Clause 72 of the Bill, are defined as "domestic proceedings". The first two Amendments are a consequential re-lettering which turn an existing minor Amendment into a paragraph (a) so that a paragraph (b) relating to the fine increase can be inserted. I beg to move.

On Question, Amendments agreed to.