§ 2.48 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that this Bill be now read a second time. This Bill deals with a fundamental problem relating to matrimonial proceedings, which is that there are at present two separate but overlapping matrimonial jurisdictions, one based in the High Court and divorce county courts and the other in the magistrates' court. There are at present considerable differences in the substance of the matrimonial law which applies in each jurisdiction. These place the applicant to the magistrates' court at a disadvantage. These differences were criticised by the Finer Committee in their report on One-Parent Families, and the principal object of this Bill is to remove them.
The present differences have arisen because, when the divorce law was reformed in 1969 and 1970, the magistrates' matrimonial law was not brought into line with it. The magistrates' jurisdiction operates in relation to marriages which are still in existence; the divorce courts deal with the dissolution of marriages which have broken down irretrievably. At present, divorce may be obtained on the simple ground that the 580 marriage has broken down irretrievably. But in order to obtain a magistrates' matrimonial order it is necessary to show that one party has committed a "matrimonial offence". The provisions of this Bill will remove this necessity.
The Bill implements recommendations made in a Law Commission Report on Matrimonial Proceedings in Magistrates' Courts, which was published in October 1976. The Law Commission annexed to their report a draft Bill which is substantially reproduced in the Bill before the House today. There are some changes of detail and some new provisions, but in all major respects the Bill implements the Law Commission's recommendations.
The scheme of the Bill is as follows. Part I repeals the Matrimonial Proceedings (Magistrates' Courts) Act 1960 and provides a new code for matrimonial proceedings in magistrates' courts. This is, so far as desirable, consistent with the provisions of the reformed divorce law provided by the Matrimonial Causes Act 1973. I say "so far as desirable" because, since the magistrates' jurisdiction operates at a stage before a marriage is brought to an end, its objectives and those of the divorce law are not consistent in all respects. However, to a very large extent the provisions in Part I are the same as the corresponding provisions for the higher courts. Parts II and III of the Bill carry through the reforms of magistrates' matrimonial law made in Part I into other similar legislation, and so provide consistency with proceedings for guardianship, affiliation, custodianship and adoption, and certain matrimonial proceedings in the higher courts. Part III also contains some new provisions concerning the international enforcement of maintenance. Procedural provisions are contained in Part IV.
The Bill is long, but it is not as formidable as it appears at first sight. Many of the provisions in Part I simply re-enact the existing matrimonial law provided by the Act of 1960. Parts II and III, to a large extent, make a number of consequential amendments. The amount of completely new material in the Bill is therefore not very great.
The Bill is, as I have said, principally concerned with the removal of anomalies. 581 However, it also creates two important new powers for the protection of battered wives and children. These are the powers which the Bill gives magistrates' courts to protect a battered spouse or child by granting personal protection orders and domestic exclusion orders. A personal protection order prohibits a party to the marriage from using or threatening violence, and a domestic exclusion order requires him to vacate the matrimonial home.
The Bill also enables a single justice to issue a warrant of arrest against a party to the marriage, where he has reasonable grounds for believing, on application made on oath, that that party has disobeyed a personal protection order or exclusion order. These provisions in the Bill give magistrates powers similar to the powers already available to the higher courts to grant injunctions. They thus provide, for the first time, a summary means of obtaining relief in cases of what was recently described as "domestic hooliganism". The provisions implement a recommendation made in another place by the Select Committee on Violence in Marriage and will, I believe, be widely welcomed. Another important new provision is that proceedings defined as "domestic proceedings" shall in future be heard only by magistrates who are members of a domestic court panel, which is to be specially appointed for this purpose. The setting up of domestic court panels, on lines similar to the panels which already exist for hearing juvenile proceedings, will make it possible to appoint justices for these types of case who are well suited to the work and wish to do it. It will also be possible to provide them with a specialist programme of training, and, through hearing domestic cases frequently, they will have the opportunity to build up considerable expertise.
I shall now refer briefly to the main provisions in the Bill. Clause 1 provides new grounds for seeking a magistrates' matrimonial order. These will replace the present rather squalid list of "matrimonial offences". The new grounds are simply: failure to provide reasonable maintenance; behaviour such that the applicant cannot reasonably be expected to live with the respondent; and desertion. 582 The clause also introduces the principle already found in divorce law that each spouse has an equal duty to support the other.
Clause 2 gives the magistrates' court a new power to order a lump sum payment not exceeding £500 in matrimonial proceedings, in addition to the existing power to order maintenance. Clause 3 provides statutory guidelines for the matters which the court must take into account in deciding whether to order financial provision. This replaces the present provision under which an applicant to a magistrates' court is barred from receiving maintenance if the applicant had committed adultery, and provides instead that the court should take the parties' conduct into account only to the extent which it is just to do so.
Clause 6 introduces a new accelerated procedure for obtaining a magistrates' order where the parties are in agreement about financial provision. Under Clause 7, an order can be made for the custody of a child until he attains the age of 18 instead of the current limit of 16; this brings magistrates' courts into line with the higher courts. The magistrates' court will also be able to make a "joint order" under which one party to the marriage is given legal custody of the child, but the other party is allowed to retain some or all of his parental rights except for the right to the actual physical custody of the child. Persons who hold parental rights and duties jointly and who disagree may, under Clause 12, apply to the court for an order resolving the dispute. Clauses 13 and 14 contain the new powers—which I have already mentioned—for magistrates to make personal protection and domestic exclusion orders and to issue warrants of arrest for breach of such an order. Where it makes a custody order in matrimonial proceedings, the magistrates' court will have a new power under Clause 29 to direct that the child shall not be removed from England and Wales. Again, this corresponds to the power already available to the higher courts.
There are some new provisions in Part III relating to international enforcement of maintenance. These enable courts in the United Kingdom, where they are enforcing an order made by a court in some Commonwealth countries under the arrangements for reciprocal enforcement, 583 to give effect to the intentions of the Commonwealth court as regards the date from which the order is to have effect. They also extend the arrangements for international enforcement so as to include maintenance payable to a former spouse. At present, the arrangements under Part II apply only where the parties are still married. This clause will enable us to give full effect to our international obligations under a United Nations Convention on the recovery abroad of maintenance. There are corresponding provisions for Northern Ireland and Scotland.
The provisions in Part IV may loosely be described as "procedural". They alter the basis of jurisdiction in civil proceedings in magistrates' courts from the petty sessions area to the commission area; empower a magistrates' court to suspend the operation of an order for payment and then to revive it; and increase the penalties for disobeying the magistrates' orders (other than orders for payment of money). The new financial penalties in Clause 70 are a daily sum not exceeding £50 or a single sum of not more than £1,000 instead of the present rates of £1 and £20 respectively. The alternative penalty of imprisonment for a period not exceeding two months remains unchanged.
The other provisions in Part IV were not included in the Law Commission draft Bill, but are consequential on more substantive reforms in Part I. Where a magistrates' court, in consequence of the new powers provided in the Bill, makes an order for payments to be made directly to a child, Clause 69 provides that the person with whom the child has his home may act on his behalf in proceedings relating to the order. Clause 71 provides a comprehensive definition of the various proceedings—matrimonial, guardianship, affiliation, custodianship and adoption proceedings—which fall within the general definition of "domestic proceedings". This replaces the provisions at present scattered in a number of different enactments.
Clause 73 amends the existing law and limits the persons who may be present during the hearing of domestic proceedings to those directly concerned in the case, the Press and any person whom the court considers has reasonable grounds for 584 attendance. The clause also preserves the existing law which safeguards the privacy of adoption proceedings. Clause 74 preserves the existing law, also, this time on adoption proceedings (that no particulars may be published which would lead to the identification of the child), and raises the fine for breach of the restriction on newspaper reports of domestic proceedings. It does however remove the present penalty of imprisonment. Part V of the Bill contains supplementary provisions, and the Schedules make transitional provision, minor and consequential amendments and repeals.
The Bill introduces much needed reform in an important area of the law which directly affects many people's personal lives. The Law Commission recommendations embodied in the Bill have been widely welcomed by the legal profession, social service bodies and other groups concerned. They are, I believe, largely non-controversial. The Bill will simplify the law relating to domestic proceedings, to the benefit of the public, the courts and legal practitioners. It provides new powers for the protection of wives and children against domestic violence and will generally make it easier and less distressing to obtain a magistrates' matrimonial order. This legislation is an important step forward and, as such, I commend it to your Lordships' House. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.— (Lord Harris of Greenwich.)
§ 3.3 p.m.
§ The Earl of MANSFIELD
My Lords, I am sure the House will join with me in thanking the noble Lord, Lord Harris of Greenwich, for introducing a long and fairly complex matter in 15 minutes; that is no mean feat. The Bill, which is non-Party, will attract a wide measure of support in your Lordships' House, representing, as it does, a major departure from the old matrimonial jurisdiction in the magistrates' courts which most will agree has become thoroughly out of date. Speaking personally for a moment, many young members of the Bar spend—or, at any rate, used to spend—long hours in magistrates' courts, in effect taking part in what were miniature contested 585 divorce actions. The law was essentially the same; the result was of course different. The financial rewards, so far as the member of the Bar was concerned, were almost non-existent. I seem to remember being paid three guineas on the brief and two guineas for the conference. My noble and learned friend who sits beside me thinks that he was paid three guineas for the brief and one guinea for the conference. But I suspect that was inflation rather than the quality of my conference. But, my Lords, they were very good practice.
One of the matters which struck me was the type of people who became litigants in such situations, and the difficulties in which they found themselves. The type of summary matrimonial jurisdiction open to them afforded some measure of relief. Applicants for these orders tended to be of a fairly humble and less affluent walk of life. I do not wish to be misunderstood when I say that, but very often they were not of the view that a breakdown of their marriage, of necessity, led to divorce. In most cases the desired order was in effect a maintenance order for payment of what it was hoped would be a regular sum of money.
Public attitude to matrimonial relief has shifted in that there has been over the years a steady increase in petitions for divorce, accompanied by an equally steady decrease in applications for maintenance orders. From my researches it appears that in 1971, petitions for divorce by wives were in the region of about 66,000. In 1975 they had increased in volume to approximately 98,000. But applications for maintenance orders by wives in 1971 were in the region of 26,000; by 1975 they had decreased to about 12,000. So it is plain that, for whatever reason, magistrates' courts have become less popular so far as matrimonial relief is concerned, while petitions for divorce seem to have become more popular.
It is with that background in mind that one reads the report of the Law Commission and, in particular, its proposals for the future, and contrasts them with the conclusions of other bodies, such as the Finer Committee. I say at once that the Law Commission, in my respectful opinion, 586 made a careful and workmanlike study of the problems. It came therefore somewhat as a surprise that the Commission endorsed a rather curious phrase used by the Working Party in paragraph 1.11 of the report, when it concluded:that the function of magistrates' courts today was to provide first aid in a marital casualty clearing station".The phrase to me denotes that in such a situation the magistrates' court is the first stage in a continuing process; whether towards the eventual health or death of the marriage, matters not. However, at least half of the successful complainants in a magistrates' court—at any rate, in 1975—did not go on to obtain a divorce. So the analogy employed by the Commission is at least doubtful. The Finer Committee proposed the reform of matrimonial law and also the courts. It wanted in effect to set up one institution, a family court, administering a single unified system of family law. Whatever one personally may think of that recommendation, it was not one which commended itself to the Government; the Government did not accept it, and the Law Commission therefore made their deliberations in the light of the circumstances in which they found themselves. Indeed, they could not do anything else.
That the law is out of step with modern thinking is plain. One has only to go to Section 1 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 to see that. Indeed, the noble Lord, Lord Harris, described as squalid the list of complaints which would justify an order. It certainly does not have a modern ring about it. Paragraph (e) of subsection (1) instances where the respondent has insisted on having intercourse with the applicant while suffering from veneral disease; and paragraph (f) instances where the respondent is, for the time being, an habitual drunkard or addict, and so on. So that one welcomes the new grounds which are contained in Clause 1 of the Bill. It is perhaps significant that the applicant's own adultery will cease to be an absolute bar to an order. I suppose it is true to say that adultery will equally cease to be a ground for an order, unless the court comes to the conclusion that it comes within one of the four paragraphs of the section.
587 Equally welcome will be the new flexibility of the maintenance orders which may be made by a court. I do not intend to weary your Lordships with this at length, but I suggest it is particularly welcome that periodical payments no longer have to be synonymous with weekly payments when ordered by a court. The payment of a lump sum not exceeding £500 is an interesting new innovation, although I wonder how many lump sum orders will be made and for what sum. I welcome Clause 5 which, in effect, empowers a court to make a maintenance order in favour of a child who has attained 18 years; or, indeed, a court may extend an existing order if the child is receiving some form of education or training, or if there are exceptional circumstances.
As the noble Lord, Lord Harris, told us, the Bill also provides personal protection for either party in circumstances of violence or threatened violence, and that is contained in Clause 13. The emphasis is on protection from violence; and it is interesting that magistrates have no discretion to order a respondent to permit entry to the matrimonial home. I say that, because it seems to me that the Bill is, perhaps, less successful as regards its reconciliation of concurrent jurisdictions than it is when it deals with provision for spouses or for guardianship of infants.
For instance, if one compares it with the Domestic Violence and Matrimonial Proceedings Act 1976, which, in effect, gives the county court judge complete discretion to make orders which restrain molestation, and for entry to an exclusion from the matrimonial home, one would imagine that that was a far more attractive Act on which a wife should pursue a remedy than the present Bill. One wonders why the two measures have not been made the same. Both of them—and this I personally deplore—give power to issue warrants of arrest, if orders of the court are to be disobeyed. Personally, I disapprove of this, because I do not like seeing policemen employed by the court in cases which have nothing to do with the criminal law. I made the point when the Act was before your Lordships' House and I make it again, no doubt in vain.
I have only two other matters with which to take up your Lordships' time, one of a rather basic nature and the other a good deal less so. The first concerns Clause 22 588 and reconciliation. The Law Commission considered the matter on page 37, paragraph 4.12, and, bearing in mind that all are agreed that, at the point in time when parties approach a magistrates' court in these circumstances, a marriage may be very far from dead, I submit that the opportunity to write into the law some real and meaningful attempts at reconciliation has been lost.
The Law Commission merely says, in effect, that the primary function of any court is adjudication and, while that certainly does not exhaust its functions, a careful limit must be set to any functions going beyond adjudication. The Bill does not set any limit; it does not really give the court very much in the way of discretionary powers, and the writing in of a mechanism to encourage a court to help those who wish to proceed to a reconciliation, rather than an order, is something which might be considered in Committee. I appreciate that, if one has a maintenance order which is by consent, reconciliation has very little part to play. But there are very many instances where the future happiness of the spouses would be maintained by reconciliation, rather than by cash.
My only other point is a small one and I hesitate to mention it, but, as I may not be about when your Lordships deliberate upon this matter in Committee, perhaps I shall be forgiven if I do so. It relates to Clause 73, which the noble Lord has already mentioned. Paragraphs (b) and (c) of subsection (1) have the following effect. Paragraph (b) excludes from the courtpersons whom either party desires to be present";and paragraph (c) relates to solicitors and counsel in attendance for other cases. There must be many instances when parties to litigation such as this, who may very well be upset and in considerable need of moral support, if I may so term it, would be more than distressed if the close relative or friend who has assisted them is excluded from the court.
The other point is that young barristers and, indeed, solicitors have to learn the ropes and the best way of learning them is by observing other people's mistakes, sitting in court and looking at other cases. I appreciate that, where circumstances arise which make privacy essential, 589 if the evidence is to be of a nature which would cause embarrassment to the parties, then there is everything to be said for excluding everybody who does not have to be in court. But, otherwise, I suggest that there is nothing really wrong in letting members of the Bar and solicitors be present, even if they are not directly concerned with the case. Except for those few and fairly minor reservations, I am sure that all your Lordships will give this Bill a fair passage through the House.
§ 3.18 p.m.
§ Baroness ROBSON of KIDDINGTON
My Lords, may I join the noble Earl, Lord Mansfield, in thanking the noble Lord, Lord Harris of Greenwich, for introducing this Bill so clearly. As has already been said, I think we all agree that this is a Bill which was overdue to be introduced in this country and it is one that we welcome, in the main. I have very few reservations at all about the Bill.
The noble Earl made a statement about the need to change the basis of the matrimonial courts, and pointed out that over the past few years they have been used less and less. I believe that there are two reasons for that. Obviously, the first reason is that it is easier to get a divorce these days than it was in the past; and the second is that the matrimonial courts have been used largely by the wives in a marriage. Since then, we have had the legislation covering equality of the sexes and, in my view, this Bill makes it clear for the first time that either party can have recourse to these courts. So one would envisage that, after this Bill has become law, there may be a slight increase in matrimonial cases, particularly as it is my personal experience that life has changed enormously with regard to matrimonial problems.
There was a time when it was always the wife who was being hard done by, or who was being deserted. My personal experience is that quite often these days it is the husband who is deserted and who is left to look after the children. Therefore when we look at this Bill we are looking at a quite new picture and role for the domestic courts of this country. With everybody else, I welcome the change in the grounds upon which an applicant can apply to the domestic court.
590 I welcome enormously the power to award a lump sum. However well organised, regarding support for the deserted spouse, inevitably there is bound to be an interval between absolute desertion and the time of adjudication. My frequent experience—usually, I admit, of wives—has been that the deserted spouse has had to take up loans from relatives or friends and has then been saddled with the repayment, for the recovery of which money no recourse has been open to them. Therefore, I welcome the power to award a lump sum on those occasions.
Also I welcome the fact that the Bill raises the age of dependent children to 18 and that in certain cases the age of dependency is almost unlimited. I believe that this is essential. If there is mental or physical handicap, a child will be impaired by his disability and will be unable to earn a reasonable living. For such cases this clause is very helpful.
I believe that Clause 13 is the most important clause of all, and it is probable that all Members of the House will agree with me. Clause 13 relates to the power to exclude a husband or wife from the matrimonial home. Such a power is desperately important when battered children and families are involved, and this will be the first opportunity for magistrates to enforce such a ruling.
One point about Clause 13 which worries me slightly is that it gives to magistrates the power to exclude the wrongdoer from the matrimonial home. I believe that the phrase "the matrimonial home" needs to be more clearly defined. My experience has been that many of the unhappy families who have had recourse to the domestic or matrimonial courts have been living in homes which it would be very difficult to say were their matrimonial homes. My frequent experience has been that in cases of this kind the family has been living in the home of a parent—perhaps the home of the parent of the spouse who is at fault. Therefore, it is essential that we should define more clearly what is meant by "the matrimonial home". I welcome also the fact that in Clause 55 the exclusion order will not prevent a case for desertion being brought. Obviously this provision is essential if we are to help the complainant spouse.
591 I should like to turn to Part I, Clause 26, which deals with the jurisdiction of the courts. I question whether jurisdiction should apply to the whole of the commission area rather than to the petty sessional division. I can understand the reasons for putting together two petty sessional divisions, but I should be very disturbed if there were to be only one domestic court in the area of each commission. I believe it to be essential that the members of the domestic court should have reasonable knowledge of the social and economic backgrounds of the area where they are adjudicating. As a member of a county commission, I am not aware of most of the major social questions relating to that part of Oxfordshire which lies South of Oxford, whereas I have a fair amount of knowledge relating to the social background and conditions in that part of Oxfordshire in which I live. If one is to adjudicate upon matrimonial cases it is essential to know something about the social background. Therefore I should be very concerned if there were to be only one domestic court in each commission.
I should also be glad if the powers of the Lord Chancellor to appoint were clarified. I should find it perfectly acceptable if this power to appoint were to relate basically to the rules regarding age and training, but I should prefer local justices to retain the power to appoint at their annual general meeting the chairman of the domestic court for their petty sessional division and to appoint their own panel. I agree very much with what is said in the Bill and in the Law Commission's Report about those people who deal with matrimonial proceedings having the right kind of background and being the right kind of people. I believe that benches know their own magistrates and that they should be left with the right to appoint their domestic courts in the traditional way.
May I finish by referring to Clause 73, to which the noble Earl, Lord Mansfield, referred, which deals with who is allowed to be present in domestic court proceedings. I have certain reservations about that clause, though only in so far as it relates to those persons whom either the complainant or the defendant would like to be present. I agree with the suggestion that legally qualified persons should be 592 excluded if they are present in court for reasons which are not concerned with the case. I agree, further, that for most people these are disturbing occasions and that it would be helpful if they could have present with them a son, brother or sister, or somebody else of their choice.
I accept with alacrity the point that under Clause 76 magistrates should record at the time the reasons for their adjudication. I know that it has happened in the past that, when an appeal has been heard, it has been impossible to remember all the details of the case, however much one has re-read the evidence. I believe this to be a very sensible adjustment. With those few words, may I welcome the Bill and say that I hope it will be accepted by all Members of your Lordships' House.
§ 3.29 p.m.
§ Lord PONSONBY of SHULBREDE
My Lords, I should also like to extend a general welcome to this Bill, particularly, as emphasised by my noble friend Lord Harris of Greenwich, since it brings matrimonial proceedings in magistrates' courts more generally into line with proceedings in the county courts. One point which I welcome in particular is that adultery will no longer be a bar to maintenance. The Divorce Law Reform Act 1969 transformed the whole concept of a matrimonial offence. Among other things, it brought in the concept of unreasonable behaviour and abandoned the old law of persistent cruelty. As has already been mentioned, this has meant that, for over seven years, it has been far easier to obtain a divorce from the county court on grounds of unreasonable behaviour than it has been to obtain an order in the magistrates' court on the grounds of persistent cruelty.
As mentioned by the noble Lord, Lord Harris of Greenwich, the Bill must among other things, be seen as a general tidying up of the law. No doubt because it is something which causes the other spouse distress adultery has been deleted as a ground. It amounts to unreasonable behaviour. Therefore, one wonders why the anachronistic concept of desertion has been retained. This is a legal concept that has given rise to a great deal of complex law over the years. A prima facie case of desertion must surely qualify 593 as unreasonable behaviour, and one wonders why tidying up of the law could not also have included that.
For the first time, the Bill enables an applicant, usually the wife, to obtain a non-molestation injunction in the magistrates' court, referred to in the Bill as a protection order. It also gives power to the magistrates' court to evict a husband from the matrimonial home. On the face of it, this is a desirable reform, but it is one which has given me some cause for concern. If the respondent disobeys such an order of the court, the Bill attempts to provide penal provision to enforce it. Under Clause 14 a justice of the peace is to be given the power to issue a warrant for the offender's arrest. However the Bill is not entirely clear as to what powers the justice then has to deal with the alleged offender. For example, there is no provision in the Bill for bringing him before the court within a specified period of time. This is a lacuna which will have to be corrected.
The granting of a protection order or an exclusion order is a matter which can seriously affect the liberty or property rights of an individual. In either case, it is essential that the respondent should have every facility to put his case. This really means knowing in advance what case he has to answer. Except in extreme circumstances, such cases are dealt with in the county court on affidavit evidence, which enables the parties to know in advance the case they have to answer and what witnesses should be called. No such provision for affidavit evidence exists in the magistrates' court: consequently, a respondent hears the case against him for the first time when the applicant gives her evidence. This inevitably places the respondent or his legal advisers at a disadvantage. Surely it cannot be desirable, when dealing with matters as serious as this, to have two standards of justice, one in the county court and the other in the magistrates' court. As has already been stressed by the noble Earl, Lord Mansfield, I would remind your Lordships that these are civil and not criminal matters.
Another matter which causes me concern is the payment to the applicant or a child of the family of a lump sum. I can fully understand the need for this provision where families need a sum of money 594 urgently to stave off a crisis, but I fail to understand how magistrates can reach a decision to order the respondent to pay such a sum unless they have the benefit of full discovery of documents and full powers to enforce such discovery.
These are some matters of detail which concern me about the Bill. There are others, such as the ease with which legal aid will be able to be obtained in the magistrates' court, which I feel we should discuss later at the Committee stage of the Bill. Upon these matters of detail will depend the ultimate shape of the Bill and whether or not the aim which is set out in the Preamble to the Bill, of expediting proceedings and not increasing public expenditure, is achieved. However, in general terms I welcome the Bill.
§ 3.35 p.m.
§ Baroness MACLEOD of BORVE
My Lords, like other noble Lords, as a magistrate I am grateful to the noble Lord, Lord Harris of Greenwich, for introducing this Bill this afternoon. This Bill, which on the whole the magistrates welcome, deals with acute human problems, often the result of great unhappiness and bitterness. This is the aftermath of two people having made a mistake. It is easy to make laws and rules which it is hoped will rectify that mistake. In this Bill it seems that all the t's have been crossed and all the i's have been dotted, but time alone will tell whether in fact enough room for manoeuvre has been left to the magistrates deciding the cases. Every case has to be decided individually on its merits and on the particular circumstances. We will have an opportunity at another stage to go through this Bill clause by clause and I intend to comment on only a few of them this afternoon.
Clause 4 deals with the grounds of application for financial provision, and I am very pleased that it stresses that either party may apply for maintenance and financial provision. This highlights a trend in broken marriages today. Wives are leaving husbands and mothers are leaving husbands and children in greater numbers. This means, quite rightly under the sex equality law, that in these circumstances if a mother gets a job and the father has to leave his employment to look after their mutual children the wife will have to pay maintenance. Like other noble 595 Lords, I am glad that under Clause 5 maintenance shall continue at least up to the age of 18. If those who leave school at 16 were to have no financial help from outside and could not get a job it would be hard indeed for them to face the world.
I also agree with the lump sum, but I was advised in my court this morning that it might be difficult for the adjudicating payments officer to differentiate in a problem of accounting between the periodical payments and the lump sum by instalments. I think there is going to be some difficulty there.
Under Clause 9, in the case of a child committeed to the care of the local authority it seems to me to be absolutely vital that the parents should have to keep in touch with the local authority, and that those who do not obey the law and who try to go abroad or to wash their hands of the children who are in their care should be fined more than £10. In these circumstances I should have felt that £100 was far more appropriate.
I also welcome Clause 22. It should be part of the Bill that an attempt should be made by people to reconcile the couples before the court, especially when they are very young. We have lately had an increasing number of young couples who come to the court wanting a separation. In the past it has been possible, although it has not been part of the law, for a remand to be made so that a probation officer or a well qualified person from the court could attempt to make a reconciliation, and I should like to see that possibility incorporated into the Bill. We all know that with young people time is very important, and I agree with my noble friend Lord Mansfield that if one could put the case back for at least three weeks for a report it might be of enormous benefit to the young people concerned.
As part of a very busy court that does not at this time have a special domestic court panel, I welcome, as I think all magistrates will, that there should be a special domestic courts panel. But we are rather worried about the rules and what they will contain. For instance, how many magistrates will constitute a panel? Who shall be responsible for the training of the magistrates? With great deference to the noble and learned Lord 596 the Lord Chancellor, it seems to be rather far removed from everyday court sittings for the noble and learned Lord, with all his wisdom, to appoint the domestic court panels and, indeed, from his position on high, also to be able to withdraw any members of the domestic court. Like the noble Baroness, Lady Robson of Kiddington, I think that colleagues of the Bench would probably have better knowledge of who to appoint to this very difficult domestic court.
I would draw the attention of your Lordships to the fact that the juvenile court panels—which, in my view, are even more important than the domestic court panels—are appointed by the colleagues of the local Benches. We have a great knowledge of the people with whom we are working and I should like to see that incorporated into the Bill, although, of course, there must be reasons why others have decided otherwise. Also, it seems that the Secretary of State has to say how many courts there shall be and therefore there might well be a conflict of interest concerning that part of the Bill. We are all voluntary people and we do our best.
Clause 74 restricts newspaper reports of domestic proceedings, and this is vitally important. I would only draw attention to the fact that newspapers which infringe the law and mention the names or the schools of any parties in these proceedings are only to be fined £500. It would seem that a fine of £1,000 would be far more appropriate in those circumstances, because of course the damage would have been done. We have to remember that in dealing with domestic proceedings a great deal of unhappiness, often lasting many years, is experienced by both parties and if there are children under age we should be constantly aware that they do not get over the separation, as some parents conveniently seem to think. The separation of parents is a traumatic experience which will always leave its mark on the children and many may well be scarred for life.
§ 3.44 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I am grateful to all those who have participated in the debate, and it is a pleasure to reply to a debate as brief as 597 this when there has been almost unanimous acclaim for the purposes of the Bill. I will deal with a number of the points which have been made today, but inevitably a number will have to be left to the Committee stage.
I think perhaps it might be right for me to say at the outset that this Bill, perhaps inevitably, has had a long gestation period. In December 1970 the Law Commission were invited by the then Home Secretary to consider what changes might be desirable in the magistrates' matrimonial law in the light of the reforms in 1969 and 1970 in the divorce law. The Law Commission set up a working party under their then chairman, Mr, Justice—now Lord—Scarman to consider these matters and their provisional conclusions were published in a consultative document in 1973. That document was then fairly widely distributed and, as a result of that distribution and the discussions which subsequently took place, the Law Commission re-examined their original proposals and they formulated the recommendations which appeared in their report and which were published in October 1976 and have been embodied in the draft Bill now before us. I think that period of some six years, and the fairly intensive discussions which have taken place, is one reason why the Bill has achieved such a welcome from both sides of the House.
I will deal with a number of the detailed points which have been made; I tender my apologies in advance to those noble Lords whose points I do not deal with, but inevitably it would be impossible to deal with them all this afternoon. The noble Earl, Lord Mansfield, raised one extremely important question at the outset of his speech. It related to the recommendations of the Finer Committee on family courts, and perhaps I should say a word about that. The Finer Committee suggested in their report that the needs of the proposed family court for additional manpower and accommodation could be met, for the most part from existing resources. Therefore, if the Government were to accept the recommendation which they made, there would be no substantial additional call on the public resources. I am afraid that we have come to the conclusion that this was an over-optimistic assumption.
598 The fact of the matter is that the Finer Committee's recommendation would make it essential for there to be a significant amount of additional court accommodation. I think I shall carry with me my noble and learned friend the Lord Chancellor when I say that there is already a formidable problem with regard to court accommodation so far as his Vote and the Home Office Vote are concerned. It would be very difficult indeed to move into a situation where we were committing ourselves to yet further substantial calls on public resources in that area. Therefore, with regret, we came to the conclusion that there could be no question of pursuing that policy at this time. That deals with one point raised by the noble Earl, Lord Mansfield, and to some extent explains the position of Government so far as the recommendation of the Finer Committee is concerned.
A number of other points have been made. The noble Baroness, Lady Robson, raised the question of personal protection and domestic exclusion orders and, in particular, the question of the definition of "matrimonial home". Certainly we can look at this matter again before the Committee stage of the Bill, but the fact is that this term is used elsewhere on the Statute Book and, in particular, in the Matrimonial Homes Act. Therefore I think the most we should need is some cross-reference. I will gladly look at the matter again, but at the moment this term has been accepted and I do not think that in the past there has been a great deal of misunderstanding. Of course, if it is argued that there has been misunderstanding, we will look at the matter with pleasure.
Then the question was raised—by the noble Baroness and, I think, by the noble Earl, Lord Mansfield—of Clause 73 of the Bill, and in particular the people who should be permitted to be present in the court, whether the friends of people who might be appearing before the court should be there, or whether indeed members of the legal profession should be there as some form of training course. Certainly I do not in any way want to disparage the importance of the latter consideration, but I think we have to take into account the attitude of people who are having to reveal intimate details of their private lives, and I am by no means 599 sure that it is unreasonable for us to say that we must limit this number fairly sharply. I will certainly take account of the point made by the noble Baroness; that is, that some people might want to have friends and members of their family present. But, of course, the court will have discretion in the matter; they will have a discretion in a matter of this kind, and I do not think in all the circumstances that is at all unreasonable.
Then the noble Baroness, Lady Macleod, and I think another noble Lord, raised the question of the panels. Certainly I will look at this point, but we have left this matter on one side for the rules, because we accept that there will have to be fairly detailed discussions with the Magistrates' Association on the way in which these rules will be drawn up. I think that is probably the most sensible way to proceed in this matter. I do not think it is necessary for everything to appear on the face of the Statute. Many matters of this kind can be left to the rules, and I think that is probably the best way to do it.
I have dealt with a number of matters which have been raised, and certainly I will consider the other points before we come to the Committee stage of this Bill. Certainly, this kind of measure, and indeed this particular measure, does not attract a great deal of attention either in the Press or elsewhere. Nevertheless, as has been said on all sides today, this is a Bill which will affect many tens or perhaps even hundreds of thousands of our fellow-citizens. It is, therefore, right for us to devote a considerable amount of our time and attention to this matter, because, if we get this measure right, it will, I hope, add very considerably to the welfare of many of our fellow-citizens.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.