§ 5.26 p.m.
§ Lord ELTONMy Lords, I beg to move that the Domestic Proceedings (Northern Ireland) Order 1980, a draft of which was laid before this House on 24th March, be approved. The purpose of this order is to make fresh provision for matrimonial proceedings in courts of summary jurisdiction. Although drafted in terms of the male gender, it applies equally and throughout to the female gender. Generally, the order follows Part I of the Domestic Proceedings and Magistrates' Courts Act 1978 which implemented for England and Wales recommendations 63 made in a Law Commission Report on Matrimonial Proceedings in Magistrates' Courts, and brings the law in Northern Ireland relating to matrimonial proceedings in summary courts into line with the law being administered by the divorce court. To a great extent the order is a tidying-up measure following the reform of divorce law in the Province which the House approved nearly two years ago and which has been operating for exactly one year.
The order is aimed at conferring on magistrates' courts something of the broad powers exercisable by the divorce court, suitably adapted to a situation where the marriage may not yet have irretrievably broken down and may, hopefully, never do so. The order contains proposals therefore which, while operating consistently with the permanent remedies available in the divorce court when the marriage has irretrievably broken down, nevertheless give full effect to the rather different objectives of the magistrates' matrimonial jurisdiction. The divorce court exercises its powers to make orders in respect of a party to a marriage principally on the basis that it has terminated the marriage. The jurisdiction of the magistrates is to grant matrimonial relief and deal with family relations during a period of breakdown, which is not necessarily permanent or irretrievable. The divergence of the underlying principles operating in the courts has led to many anomalies concerning the welfare of children and in the various types of financial provision which may be ordered by the court as well as in the circumstances allowing the court to exercise its powers in these and other respects.
The Domestic Proceedings Order repeals and replaces in its entirety the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945, which has hitherto been the main legislative provision on this subject. That Act allows application to be made to the court by a wife where a husband has been guilty of certain offences against her such as adultery, persistent cruelty, desertion, neglect to maintain and so on. An application can be made by a husband whose wife has committed any of a more limited list of offences.
The order proposes that there should be 64 five grounds (instead of the present nine for a wife and four for a husband) on which either spouse may apply for a maintenance order against the other—the four grounds recommended by the Law Commission, together with adultery. The Law Commmission's four grounds are failure to maintain the applicant, failure to maintain a child of the family, desertion and unreasonable behaviour. The last of these subsumes a number of offences under the present legislation, including persistent cruelty, habitual drunkenness, habitually taking dangerous drugs and compelling a wife to submit herself to prostitution.
It may be asked why adultery is included as a ground on which the court can make an order when it is not separately mentioned in the English legislation. The reason lies in the Matrimonial Causes (Northern Ireland) Order. This order was made in 1978 and sets out a revised law for divorce in Northern Ireland. In the matter of adultery, it follows Scottish rather than English law and adultery by itself is stated to be one of five specified facts which give rise to an inference that the marriage has irretrievably broken down. It seems to us that if adultery is a ground on which a spouse can seek a dissolution of marriage, there is an even stronger case for saying that it should also be a ground on which a spouse can decide to live apart from the other party to the marriage and apply for financial provision.
The draft order is the result of a long period of consultation in Northern Ireland which began in March 1979 with the publication of a proposal for a draft Order in Council, together with an explanatory document. The normal consultation period was extended to three months. We received many helpful comments. The draft order now before the House has, I believe, been improved as a result of these suggestions, which have been very welcome. This is particularly so in relation to those provisions dealing with domestic violence. I shall explain these particular changes in a moment. I am also grateful to those who took the trouble to make their views known on such items as the welfare of children, reconciliation, jurisdiction and residential qualifications, and I am pleased to say that we have been able to meet many of the points made. In other cases, where we have not, for instance, revised the wording or extended the subject matter 65 of the order, full account has nevertheless been taken of the opinions expressed before bringing draft legislation before this House.
The majority of the articles in the order are self-explanatory and I do not think, they give rise to any particular comment. There are, however, a number of provisions which I think I should draw to the attention of the House. Article 4 gives the magistrates' court a new power to order a lump sum payment not exceeding £500 for the applicant or a child of the family. This is in addition to the power to order periodical payments. The criteria for making orders, whether for periodical payments or a lump sum, are laid down in Article 5. They follow those in the divorce legislation. This provision replaces the present law under which an applicant to a magistrates' court is unable to obtain maintenance if she has committed adultery. As in divorce law, the court should now take the parties' conduct into account only to the extent that it is just so to do.
Article 8 empowers magistrates to make financial provisions orders in terms which have been agreed by the parties. The introduction of the consent order is based on the Law Commission's recommendation that what is required is,
an effective means by which, where a marriage has temporarily broken down, the parties to the marriage can obtain the assistance of the court in regulating the financial arrangements between themselves without having to parade before the court their marital difficulties".The article contains safeguards, notably one favouring children; where the agreement includes or consists of financial provision for a child of the family, the court must be satisfied that it provides for, or makes a proper contribution towards, the financial needs of the child. An additional provision has been inserted to make it clear that if the amount the husband has agreed to pay under the article proves inadequate the wife has the option of proceeding under Article 4 in the normal way. I would remind your Lordships that the whole of this legislation provides for husbands and wives equally.Article 10 makes provision for the court, on an application for an order under Article 4, 8 or 9, to make an order for the custody of the children of the 66 family. The article places a duty on the court to consider whether or not to exercise this power before dismissing or making a final order on the application. Articles 11 and 12 enable the court, in an exceptional case, to place a child under supervision or to commit him to the care of the Department of Health and Social Services if the home circumstances are unsuitable. In exercising the powers conferred by Articles 10, 11 and 12, the court will be guided by the principle embodied in Article 17 that the welfare of the child is the paramount consideration. Article 28 places a duty on the court to bear in mind the possibility of reconciliation at all stages of a hearing and sets out certain procedures to assist this important aim.
I now come to some of the most important innovations in the order. These are the provisions (contained in Articles 18, 19 and 21) allowing magistrates for the first time in Northern Ireland to make orders for the protection from violence of a party to a marriage or a child of the family. The powers are wide. If there has been personal violence within the family, or the threat of it, the court can not only make a personal protection order forbidding molestation but, if satisfied that it is necessary to do so in order to protect the applicant or a child, the court can also make an order (described as an "exclusion order") requiring the respondent to allow the applicant the exclusive use of the home. An exclusion order may also require the respondent to keep away from any other premises (for example, a refuge) where the applicant or a child of the family is living. And it may exclude him from any area in which the home or any such other premises are situated. The maximum duration of such an order is, initially, six months, but this can be extended, if necessary.
A number of statutory consequences flow from the making of an exclusion order. The respondent must forthwith leave the matrimonial home; he must remove no goods from it unless the court expressly allows him to do so; he must not damage the home or its furnishings; he must not interfere with any services in it; and he is restrained from disposing of any estate he has in it. Again I should say that the order applies equally to husband and wife. Power is also given 67 to impose conditions in an exclusion order. These might relate to such matters as the payment of rent, rates, hire-purchase payments for furniture and other outgoings.
Article 19 attaches a statutory power of arrest to all personal protection orders and exclusion orders. A constable may arrest without warrant anyone whom he has reasonable cause for suspecting of being in breach of the order. Where a person so arrested is brought to a police station, the officer in charge of the station must inquire into the case. If he is satisfied that the offender can safely be released, he may release him either unconditionally or subject to his undertaking to return to the police station at a specified time or to appear before a magistrates' court at a specified time and place. If the offender is not released at this stage he must be brought before a justice of the peace within 24 hours, a period which may be lengthened at weekends or holidays. Article 21 allows an interim personal protection order or an interim exclusion order to be made pending a decision on an application.
The remainder of the order may loosely be described as procedural. There are provisions relating to jurisdiction and enforcement and there are increases in the penalties for disobeying magistrates' orders other than for payment of money. Such orders will include the new personal protection and exclusion orders provided by the order. These are in line with penalties imposed in England. This is an extremely important order, which reforms family law in magistrates' courts. I believe that those who use the magistrates' courts for matrimonial matters will benefit from it. I beg to move.
Moved, That the draft order laid before the House on 24th March, be approved.—(Lord Elton.)
§ Lord BLEASEMy Lords, I again wish to thank the noble Lord, Lord Elton, for his explanation of this order. I should like also to indicate that the measure has a warm welcome from this side of the House, and indeed I think it will be well received by the Northern Ireland community. I believe that the order helps considerably (so far as law can) to ease hardship and to lessen strain and anxiety 68 arising out of domestic problems. The Minister has mentioned that the measures in the main bring the domestic law in Northern Ireland into line with that existing in this country and he has dealt with that matter in some detail.
There is only one point that I should like to deal with, briefly, and that is matters arising from Articles 18, 19 and 21 dealing with violence and threatened violence of the party to a marriage or a child of the family. The Minister has gone into considerable detail and it would be wrong if I were to repeat what he has said, but the whole of these four articles raise the dilemma of the battered wives; the great problem that we are faced with in a situation where there has been domestic strife, where the wife has to flee, perhaps with a family, in what she would hope would be an interim situation and probably would go to relatives, but many wives have nowhere to go and are left wandering in the streets.
In Northern Ireland there is a group of women called the Women's Aid Northern Ireland group, and in Coleraine, Londonderry and Belfast as the Minister will probably know they have set up refugee homes, similar to arrangements which have been made in parts of Great Britain. These are set up to help to rescue the victims of such circumstances. I am probably exceeding the terms of reference of this particular order, but perhaps I can say that this is consequential and arises from the three articles mentioned. I should like the noble Lord to use his good offices to ensure that this part of the order is supported in real terms as well as legislative measures, by seeing that adequate and suitable social and welfare facilities can be provided in such circumstances. I should like to give a warm welcome to this order from this side of the House.
§ Lord HAMPTONMy Lords, I wonder if I might ask the noble Lord, Lord Elton, one question about Article 38 which is headed "Restriction on removal of a child from Northern Ireland". This starts:
Where the court makes:and it goes on— 69
- (a) an order under Article 10(2) regarding the legal custody of a child, or
- (b) an interim custody order under Article 20 in respect of a child …"—
the court may … by order direct that no person shall take the child out of Northern Ireland while the order made under this Article is in force, except with the leave of the court".I wonder if the noble Lord could clarify whether this is similar to the provision in Great Britain or whether it is something special to Northern Ireland, and, if so, what is its significance?
§ Lord ELTONMy Lords, I would welcome the way the House has received this important order. The noble Lord, Lord Blease, referred specifically to the operation of Articles 18 to 21 and the work of voluntary agencies providing what he described as refugee houses. He will have noted from my introduction that there is provision for orders which will secure a person under threat of assault or molestation from that threat either in the home or in a place of refuge. I am confident that that description would apply to the sort of home he is speaking of. I will certainly draw his concern on this specific matter to the attention of my honourable friend with care over the operation of this, and I do not doubt that he will respond in exactly the way the noble Lord hopes he will.
The noble Lord, Lord Hampton, asked me a specific question about the operation of the English law on what amounts to the power of the court to see that a person to whom it has extended its protection shall remain within its jurisdiction. The power that he referred to was the power of the court to see that no person shall take a person under an order out of Northern Ireland. I would refer him to Section 34 of the Domestic Proceedings in Magistrates Courts Act 1978, which operates in England and Wales; there is provision that where orders or interim orders regarding the custody of a child are in force the court may by order direct that no person shall take him out of England and Wales except by leave of the court. I will not read out the whole section, but the provision is mirrored in the provision of the English and Welsh law.
§ On Question, Motion agreed.