§ House again in Committee.
§ Clause 31 [Directions as to distribution and transfer of family business and proceedings]:
§ On Question, Whether Clause 31 shall stand part of the Bill?
§ Lord Mishcon
I beg to move that Clause 31 be omitted from the Bill. So that the Committee is aware, 71 and immediately aware, of the reason why notice has been given that Clauses 31, 32 and 33 should not stand part of the Bill, it is that, in the view of those who support this amendment, a great opportunity has been missed to deal with the whole question of the merger of those courts now dealing with family matters; in particular, divorce, matters relating to custody of children, care and control of children, and maintenance. A great opportunity has been missed to merge these courts and to have family courts.
This is not by any manner of means a new question. There was The Law Society document of some years ago to which, with the Committee's forbearance, I shall refer in a moment. There was the Lord Chancellor's own consultation document issued earlier this year. There has been a great amount of propaganda put out by organisations dealing with matrimonial matters, all of them leading to the conclusion that what we badly need are family courts in this country and not a division of the High Court, together with county court powers and magistrates' courts dealing with these matters having separate jurisdiction and dealing with them in many cases piecemeal.
It is a sad fact that the clauses to which I have referred in this Bill merely play with the problem, if I am not using too dangerous a phrase, by allowing the transfer of business between the High Court and the county court. That is all that this Bill does. If we do not take advantage of this opportunity to create family courts and if we allow this matter to go into further consultation with the Home Office, as suggested, I think, by the noble and learned Lord on Second Reading, then it is obvious that time will elapse and it may be many years before this opportunity ever arises again. What I, together with those who support me on this issue, fear is that this is an opportunity missed and is an attempt to deal with the problem in a way that leaves all the things we have been fighting for over the years unanswered and undealt with.
If I may be a little more constructive, I should like to tell your Lordships what is envisaged in relation to the family courts. I shall, if I may, refer to the document, issued in January 1979, as a discussion paper, by The Law Society. It was called, A Better Way Out. I should like to read to your Lordships about the set-up that this discussion pamphlet recommended. It was:A system of Family Courts should be set up. The first tier of the Family Court should have jurisdiction over substantially all family law and consist of a three person bench with a legally qualified chairman, including a man and a woman. The legally qualified chairman alone should have jurisdiction in emergency and procedural matters. He should also have jurisdiction over undefended divorce proceedings where no other relief was needed. All other matters should be decided by the Court of three. Appeals should lie from the first tier Court to a Family Division of the Court of Appeal. Both branches of the profession (i.e. barristers and solicitors) should have rights of audience in the first tier. The first tier of the Family Court should sit locally in all parts of the country, in the interests of maximum accessibility …Additional staff should not be necessary on the setting up of the Family Court. It would be staffed largely by staff from existing jurisdictions on the transfer of work from those jurisdictions to the Family Court …The procedure of the Family Court should be informal. Whenever practicable, all issues, e.g. divorce, financial relief and welfare of children, should be decided at a single hearing—a consolidated trial. Adversarial procedure should be eliminated as far as possible by the court assuming an inquisitorial role. Decrees of divorce, legal separation and nullity should be announced by a public written notice at the office of the Family Court".72 It is not only the legal profession that has been asking for the family court over the years. I repeat that it is organisations which are familiar with the problems of families and the unfortunate problems that arise from divorce. There are many of us, not necessarily all supporting what I am now saying, who feel that, however discreet may be the magistrates' court, the very fact of those who have matrimonial troubles being told to go to a court that normally deals with criminal affairs is quite wrong. It is the wrong atmosphere, however understanding the magistrates' may be. This is another reason why the family court would be of such great importance.
The fact of this opportunity being lost has, I notice, been observed by the press dealing with the current issues involved in this Bill. I have noticed, in particular, that The Economist of 29th October specifically mentions this matter. I should like, in conclusion, to quote from the article in The Economist of that date:However, the bill will do little to improve the chaotic distribution of family cases, now haphazardly divided between magistrates' courts, county courts and the high court. The system is a jumble, with the different courts run by different rules, but offering overlapping remedies. Proposals favoured by the Lord Chancellor to link the family work of the high court and the county courts could have formed part of the new bill. Now the plans appear to have been shelved. The procedural changes in the bill are likely to be modest.The last opportunity could well spell the end of hopes for a single family court for England and Wales by the end of the decade. The proposed merger would have stopped short of the welfare-based family court, advocated in 1974 by the Finer committee on one-parent families. and in 1979 by the Law Society. But it would have been a step in the right direction.I hope that the Committee will think that it has a duty not to miss this opportunity to do something which is so fundamental to the whole question of dealing justly, properly and humanely with those family disputes that unfortunately do take place and with which the Bill at present before us deals.
§ Lord McGregor of Durris
I wish to say a few sentences in support of what the noble Lord, Lord Mishcon, has just urged about family courts. I do so against a background in which the noble and learned Lord the Lord Chancellor declared himself in your Lordships' House some three years ago in terms:I am a family courts man",to which he added the qualification that that was provided the procedures and personnel of the court were not special to that court. In fact, the family court has been urged by every body which has looked at the problems in this area of law for more than 30 years. I think that the first official suggestion for a family court was made by the noble and learned Lord, Lord Simon of Glaisdale, as he now is, in the evidence he gave to the Morton Commission in 1952.
Since then a family court has been proposed by the noble and learned Lord, Lord Scarman. It was proposed by the Houghton-Stockdale Committee on Adoption; and, as the noble Lord, Lord Mishcon, said, it was proposed by the Committee on One-Parent Families. It was proposed, I think in the late 1970s, by a research sub-committee of the Society of Conservative Lawyers; and, most importantly of all for our purposes at the moment, it has been proposed in detail over the years by Judge Jean Graham Hall. Judge Jean Graham Hall is the only proponent of the family court who has tackled what was asserted for 30 years to be 73 the main reason for not having one; namely, its excessive cost. Indeed, when the Committee on One-Parent Families proposed this, it was subsequently said by the then Secretary of State for Health and Social Security in another place that the cost would be far in excess of what could be contemplated by the then Government.
Judge Jean Graham Hall has made a recent study on a small scale (but a scale sufficient to show the general trend) of the consequences of setting up a family court. She has come to the conclusion that cost would not be an obstacle and that there would in fact be a number of unexpected savings. She concludes, for example, that the cost of domestic proceedings in the magistrates' courts is, in fact, currently higher than the cost which would accrue to the same proceedings in the county court. I am, indeed, disappointed that no official costing has been made or, as far as I am aware, has been attempted of the family court. I would very much hope that the present Bill might be the occasion for putting such a costing under way.
I accept all the grounds on which the noble Lord, Lord Mishcon, founded his plea for the family court. I should like to add to them just two, one of which he mentioned but did not pursue. Every body which has looked at this question has urged the abolition of the magisterial jurisdiction in family matters. It was urged by the Gorrell Commission in its report in 1912. That commission said plainly that it would have recommended the abolition of the jurisdiction had it been able to think of anywhere else for the poor to go.
The abolition was recommended after a very detailed and careful discussion by the Committee on One-Parent Families. I do not wish to rehearse the arguments again, beyond saying that there is behind what the noble Lord, Lord Mishcon, said, a great weight of evidence and very little argument to the contrary except from the Magistrates' Association itself in the past and from the Home Office. I understand that the view of the Magistrates' Association is that it would participate in a family court provided that such a court gave scope for lay magistrates. The argument of the Committee on One-Parent Families was not that it wished to abolish the magisterial jurisdiction in order to get rid of lay magistrates in the family court; on the contrary, it wanted to give the lay magistracy a wider scope by bringing them into the new family court, so that there would be no fear, if this development took place, that lay men and women would be taken out of the jurisdiction.
The last reason for urging a family court which I would wish to add to those advanced by the noble Lord, Lord Mishcon, is an issue that was touched upon during the Second Reading debate; namely, the critical importance of the Supplementary Benefits Commission within this jurisdiction. I think everyone agrees that very large numbers of persons passing through the family court, or through any courts having a family jurisdiction, will have to survive for periods of time on supplementary benefit. I do not think that, as a society, we have yet faced up to the consequences of making divorce so widespread that large numbers of people are brought within its ambit, and hence brought to the need of looking, temporarily at least, to the taxpayer for subsistence.
74 It is a disagreeable subject. It is surrounded by a good deal of, if not moralising, at least strongly held moral views. These could, at least in practice, be tackled squarely if the Supplementary Benefits Commission were closely related to the determination of maintenance by the courts. The plain fact of the matter is that in many instances the courts lack the means of making a proper financial determination, and the two institutions—the court and the Supplementary Benefits Commission—continue to act separately as though there were no connection between their respective roles. I very much hope that the noble Lord, Lord Mishcon, would accept that one argument for a family court is to bring the private law of family maintenance into a much closer relationship with the public law of social security than it now enjoys.
§ 8.21 p.m.
§ Baroness Birk
I should like to support my noble friend's amendment to delete these clauses in order to support the case for the family court. The noble Lord, Lord McGregor, mentioned Judge Graham Hall and the work she has done on this. Something over 25 years ago she and I wrote a pamphlet on the family court.
I am speaking personally from nearly 30 years as a magistrate—amagistrate on the old matrimonial court and now on the domestic panel. Although we do the best we can—and we often do as well as is possible in the circumstances—my noble friend is absolutely right that the ordinary magistrates' courts are not the place for trying to resolve family problems, because this is what it is usually all about.
I remember being in court many years ago, and being in the ordinary court, and a husband and wife were before us on charges of assault, one against the other. On the Friday of that week the same husband and wife were in the matrimonial court for matrimonial business. On the Tuesday of that week the children were in the juvenile court. It was sheer accident that the magistrates knew that the different parts of the family were coming before these different courts. What could be more costly, in both financial and social terms, than a set-up like that?
I was in America many years ago, and in New York I was impressed by the working of some of the family courts there. I am again speaking personally, but there you would get what is so lacking here when one tries to get an informality and a rapport with the people concerned. My noble friend is quite right when he says that they are not being summoned there for having committed crimes. They are not being summoned there for something or other which is outside their family circle: they are there for help to try to sort things out. Yet you have even the physical paraphernalia of the magistrates sitting up on high, the clerks below, and the people either in what is usually used as the witness box or even on occasion the dock. The whole atmosphere is absolutely and completely wrong.
As the noble Lord, Lord McGregor, mentioned, we had the Finer Report something over 10 years ago. Many years ago—and I think that the noble Lord, Lord McGregor, was a member—we had the Council for Children's Welfare, which was a small group of us 75 working on the whole question of children's welfare. In those days, we had research into the effect of high rise flats on family living. I am again going back 25 years, but we then came out with plans and a blueprint for family courts. Now here we are, in 1983—and I agree with noble Lords who have spoken that it is a tragic disappointment, I can only put it that way—and we find in this Bill just this tinkering around, moving from the high court to the county court, but without the coherence that we need and the sympathy and humanity that one can find only in a family court.
I know that the Magistrates' Association were for a time against this—I did not agree with them—but there is no reason why there should not be lay magistrates involved. We have nowadays the expertise of social workers and probation officers. In the days when I was first on the Bench one was often plonked into the matrimonial court because so many of one's colleagues did not want to do it, but nowadays the people on the domestic panel are usually people who want to take their part there.
However, we are really working in impossible circumstances. We are not able to do what we should be doing, which is for families and not just for individual people in isolation. When all the costings are done, I cannot believe that it will be more costly in the long term—and I am thinking in social terms as well as in financial terms—than the present set-up we have at the moment.
§ The Lord Chancellor
We are now discussing Part V of a Bill which has five other parts. There are, I suppose, somewhere about 20 people in the Committee. The idea that you could put a scheme as ambitious as that which is outlined in one form by the noble Lord. Lord Mishcon, and in various other forms and with unbounded enthusiasm by the noble Lord, Lord McGregor, and the noble Baroness, Lady Birk, into Part V of this Bill is sheer Cloud Cuckoo Land.
I of course welcome this debate if. and in so far as, this is a probing amendment, which I hope and believe it is. If it is more and it is desired to transform this Bill, I can only assure the Committee that there is no prospect at all of the Government putting it into this Bill. The idea of family courts is, as has been said by every speaker so far, an old one. Since only those who are emphatically in support of them have spoken, one would think that it was universally acclaimed. This is not so.
The magistrates are against it. The profession, I think on the whole, is against it, but it is certainly not united in its favour. The judiciary—by which I mean the professional judiciary—is certainly not for it. The public is unprepared for it, and the implications of it have been totally unresearched. I myself stand unrepentently, since my previous remarks have been quoted, as on the whole in favour as such a proposal, but to push it forward now would be to court disaster. To speak of opportunity having been lost, or to say that this particular set of proposals in Part V of the Bill is, to use one uncomplimentary phrase, tinkering with the problem, or, in another uncomplimentary phrase, playing with the subject, is, again, contrary to the truth. The truth is that if one is in favour of family courts—and on the whole I think I should favour 76 them—it is a modest step towards the achievement of family courts.
But it is suggested that we should merge the courts—that is, abolish the Family Division of the High Court take away the existing jurisdiction of every county court judge and every registrar, remove the jurisdiction of the magistrates and mix them into something of which we do not know the full jurisdiction. The composition is unstated, the channel of appeal has only been touched on and whether the appeal is to be by way of rehearing or by any other means, or limited to questions of law is something which we do not know. Nobody has discussed whether one adds affiliation proceedings. Whether the noble Baroness, Lady Birk, would have included her juvenile or her assault proceedings into the family courts I do not know, and perhaps one day we shall know if we have family courts.
However what we know from the noble Lord, Lord Mishcon, is that the whole tradition of English law, which is based on adversarial advocacy, is to be supplanted by an inquisitorial jurisdiction (whatever that may mean). That fills me with considerable doubts and anxieties. All I know about the inquisitorial jurisdiction wherever it has been tried is that it takes about seven years to reach a conclusion which under the adversarial system is arrived at fairly quickly in comparison.
As long as this is a debate about family courts I am happy to welcome it. If it is a debate about what is to go into Part V of the Bill I am a little less than enthusiastic, although I would probably come down in favour of family courts in the long run. I originally intended this Bill as a Bill which would amalgamate the jurisdiction of the county court and the jurisdiction of the High Court in matrimonial disputes into one jurisdiction, rather on the line that the Crown Court amalgamated the courts of quarter session and the courts of assize in criminal affairs. I found that even that was too big a step to take, given the problems which would be involved in the actual administration and jurisdictional change, and it was also too controversial because they were not universally accepted. I hoped that that would be a rational second course to take. I am quite certain that this is a step in the right direction and a fairly reasonable step because it achieves transferability between the two main civil jurisdictions of the High Court and the county courts.
The magistrates are against a change. So far as I can ascertain from private contacts, opinion is very mixed about whether the abolition of the magistrates' jurisdiction would be a good thing or not. It was started in the latter part of the last century. It proved a quick source of remedy compared with the rather more complex and formal remedies available in the courts of that day. My information is that it is fairly popular to this day. Certainly there is no compulsion in a great many cases to resort to the magistrates, because the jurisdiction is largely concurrent with that of the county court or even the High Court. People use that court because they find they get satisfaction more quickly and more cheaply than in the other jurisdiction. If we have family courts all that is to be done away with.
I do not think the noble Lord. Lord Mishcon, if he sat on this side of the Chamber, would find himself as 77 popular as he was with the rather limited audience whom he was addressing in the support of his amendment. I think he would find that there was a good deal of hostility to his proposal. I am far from saying that it was a bad proposal for that reason. Things have to be done in the end by digging the ground, ploughing it, harrowing it, sowing seed and hoping that it will come up. I think he is making a big mistake if he thinks that the abolition of the jurisdiction of the magistrates' courts would be fought without a fairly bloody battle.
What in the end I decided upon is what is in the Bill. I did not decide upon it because it was the best. I did not decide upon it because I did not believe in it. I decided upon it because it was the most substantial advance that I could hope to make within the compass of this Bill and because it did not prejudice any further advance which other people might make hereafter; whether it will be me or some other person standing in my position I cannot say. My view is that it will be necessary whatever is done, even if one goes the whole way to chop it up into three instalments. One is the instalment which is now proposed, which is no mean instalment. The next would be the amalgamation, if your Lordships think fit (and many people do not) between the family jurisdiction of the High Court and the county court. The third would be the formation of a series of family courts. I am not talking about the expense. I realise that calculations of a vague kind have been made. I am told that it would be a good deal more expensive than has been thought. That does not concern me at the moment. The new family court would have to be manned with persons of the type of magistrates, some of whom would no doubt come from the existing magistracy and some would not. Those that came from the existing magistracy presumably would have to be replaced on the existing magistrates' bench by somebody else.
Lord Chancellors appoint magistrates outside Lancashire. Somebody else does it inside Lancashire. They are constantly under pressure because of unemployment, because the self-employed cannot join, the wage earners find it difficult to get time off and the balance that results is not necessarily an adequate balance between different classes of the community or different political persuasions. One cannot find, in the course of a Bill dealing with something else, the personnel to man the new family courts. I presume the county court judges would have to sit as the judges of that court because so far as I know there is nobody else to put in that place. I suppose also that in the family court they would be confined to that court and not be allowed to try the other matters that they have to try.
I am not hostile to family courts. I read the Finer Commission report and there is a great deal to be said for a family jurisdiction of some sort. Those people to whom I have spoken from Canada and other parts of the Commonwealth where these courts exist, have spoken warmly of their successes. I have no dogmatic hostility whatever in my mind to this proposal. The only thing I am sure is, first, that it could not find a place in the Bill, even if it were ready to be put in the oven, baked and brought out as a complete family court and, secondly, it could not go in the Bill even if it were. I am sure it is not ready. I am sure it is still very largely uncultivated soil.
78 What I am sure about, in addition, is that I have made the right choice even in cutting short what I should dearly like to have done; that is to say, to amalgamate completely for this purpose the family jurisdiction of the county court and the High Court instead of to arrange for transferability. I am quite sure that that was the right decision and will result in the end in quicker progress further on. Having said that, I do not want to say a word which is hostile to the general conception underlying this, but I repudiate the suggestion that this is a chance missed or that I am either tinkering or playing with the problem.
§ Lord Mishcon
I must confess that I am disappointed with the reply of the noble and learned Lord. It was given with his usual courtesy and clarity of mind, and it was good to hear him say that he is not hostile to the conception. But I must confess that I am terribly disappointed that the opportunity has not been taken to do much more about merger, and to create the family court. There was one misstatement that the noble and learned Lord made, and, knowing him as I do, I am sure that that was a mistake that he would want to correct. He said very boldly that the profession was against the idea.
§ Lord Mishcon
With great respect, if he reads Hansard tomorrow he will find that in enumerating those who were against it he said that the profession was against it. I want to make it abundantly clear that the Law Society has been for it for many years, has issued publications in regard to it and (I am authorised to say by the Law Society) is still in favour of the family court and still in favour of a Bill like this carrying this burden upon its shoulders and dealing with it.
I ought just to say this. The noble and learned Lord was right. He did not do any precise count, but it was very obvious from what he said that this Chamber is not very full at this moment in order to discuss an important problem of this nature. Therefore, it would be absolutely wrong for me to try to seek the opinion of the Committee, at this hour and with this number involved in your Lordships' Committee, on, as I have said, such an important issue. Obviously, I shall want to reflect upon what the noble and learned Lord has said. I shall do it with some amount of grieving, I anticipate; nevertheless, I will reflect, and possibly it is only right to bring this matter forward, if we do bring it forward again, on another stage of this Bill.
§ Clause 31 agreed to.
§ Clauses 32 to 34 agreed to.
§ 8.42 p.m.
§ Lord McGregor of Durris moved Amendment No. 38:
§ After Clause 34, insert the following new clause:
§ ("Rules regarding conciliation.
§ Provision shall be made by rules of court made under section 34 of this Act for the parties to a petition for divorce, judicial separation or nullity of marriage to attend at court in order that directions may be given, and enquiries may be made of them as to whether any attempt at conciliation has been made by either or both of the parties, and rules of court shall further 79 provide that if the court is satisfied on such a hearing or at any stage in the proceedings that there is a reasonable prospect that any issues between the parties relating to the children of the family or to financial provision or property adjustment or to any other matter may be resolved by agreement, the parties may be referred by the court to a court welfare officer or to any other person who would be willing to assist the parties to reach ageement on any of those matters.").
§ The noble Lord said: This amendment after Clause 34 is a probing amendment, the purpose of which is to recall some very strong expressions in favour of conciliation made on Second Reading and to draw the Committee's attention to the fact that it would be perfectly possible under the present Bill to adopt some such arrangement as would require inquiries to be made through the court welfare officer as to whether or not conciliation had been attempted. It was the Committee on One-Parent Families which, I think for the first time, drew a clear distinction between conciliation and reconciliation, and urged the importance of conciliation through the court process in circumstances in which it clearly recognised and said that in its view reconciliation was entirely inappropriate to be handled in that manner.
§ One of the main considerations in respect of the importance of conciliation is the way in which the divorce procedure may be spread out over very long periods of time. It would he quite wrong to think that for all parties it is quick. It may be that the actual breaking of the bonds of marriage is separated by a period from dealing with the custody of the children, and separated also by periods from the settlement of financial matters or the allocation of property.
§ People who have worked in this area now recognise that much hostility and many anxieties stem simply from the ignorance of people who are facing these procedures as to what they will involve and as to what are the critical issues about which they have to make up their minds before they are settled. The small number of conciliation programmes that are now working, on the reports that have been made about them, seem to have been successful, and my understanding is that the programme in Bristol has been so successful that it has received the support of all the professions working in the courts in that area and of the judiciary in that area.
§ If what is said about these programmes be true, there is not only a considerable saving in anxiety for those involved but also a considerable saving in speeding up the process and reducing its cost. I would hope, in speaking to this amendment, that the noble and learned Lord the Lord Chancellor would consider in the light of the very strong support and feeling for conciliation procedures whether he could not go further now than seemed to be his intention on Second Reading. I beg to move.
§ Lord Elwyn-Jones
It occurs to me that it might be convenient for us also to take in Amendment No. 39, which is in the name of my noble friend Lord Mishcon and myself. It covers the same point but in somewhat different, but not substantially different, terms.
Like the noble and learned Lord the Lord Chancellor, I am an advocate of the adversarial procedure, having contrived a living by means of it for very many years. But of all the departments of litigation, the 80 matrimonial family field is probably the least suited to the battlefield of adversarial procedure in the settlement of family disputes; that is to say, disputes between husband and wife, the basic decision of divorce and, perhaps even more importantly, the field of the regulation of the financial arrangements between the two parties, the care and custody of the children thereafter. et cetera. At present it has to be faced that some of the bitterest controversies in the matrimonial field are in those very sensitive areas of the family, the future of the children and so on. The position at the moment is that, although I apprehend that most solicitors will themselves endeavour to encourage conciliation, there is no positive obligation or duty upon the courts or indeed upon the parties to have recourse to conciliation.
I remember one quaint experience of seeing a conciliation tribunal in action in China. In a little village outside Peking—a dusty little village on the edge of the desert—the parties were mustered. The husband and wife in conflict were made to sit in physical contact with each other on a small bench, which must have been very painful to them. There was a small tribunal of three lay people with a woman in the chair; and the whole purpose of that first shot at divorce was clearly to bring the parties together in an attempt at conciliation. I remember the chairman saying, through an interpreter of course: "We all have our faults. Are you quite sure that your husband is wholly responsible for the difficulties in your marriage? May you not be partly to blame? Think about it again and come back in a year's time". I am bound to say that this attempt at conciliation did not seem to be very satisfactory because I remember that when we went out into the sunlight at the edge of that desert the wife's partisans were there and the husband's partisans were there, and the wife shouted "He'll still beat me!"
But the attempt was made and I am giving a true but perhaps a somewhat frivolous illustration of the value of conciliation. It did not work in that case but, seriously, it could work in many. A criticism that, if I may say so, can be made of the Government now, with the present arrangements, concerns not only the inadequate financing of conciliation bodies that try to achieve these things, like the Bristol court, which has had remarkable results, but also the non-financing and the failure to give any positive encouragement to what is going on. Conciliation can be effective—rarely perhaps, but occasionally it may succeed achieving reconciliation.
Where it can probably be more effective is in the consequential field when the marriage has ended and there comes the problem of settling what to do about the children and all the family provisions. There is a terrible temptation to think that once a divorce is agreed upon all is resolved. It is only in the horror of what follows the break-up of the marriage, in terms of the children, that full realisation of what is involved for the family dawns upon the parties. Very often it is then too late. So I hope that we shall see a more positive approach than we have had so far from the noble and learned Lord to the need for facilities for conciliation.
The amendment put down by the noble Lord, Lord McGregor, does not differ in substance, and certainly not in principle, from mine. Amendment No. 39 has 81 the advantage of brevity perhaps, but I would not go the stake to resist Amendment No. 38 in order to achieve No. 39: neither, I suspect, would the noble Lord, Lord McGregor, strongly resist Amendment No. 39.
What we hope to get from the Government tonight is a positive statement rather than the somewhat nebulous, hesitant, tentative views that we have had expressed up till now on the need for conciliation as an important element in removing the bitterness, squalor, fighting and disharmony that the present system, with all the limitations that an adversarial system can provide, causing an addition to bitterness rather than the creation of harmony. I beg to move my amendment.
§ Lord Donaldson of Kingsbridge
If I may add one word, the Chinese, of course, were talking of reconciliation and we are talking about conciliation, but at a much later stage. However, there is a machinery which exists; there is a court welfare officer whose business it is to find out the facts from the parties and report to the judge. The judge then makes the decision on the report he is given.
What we are asking is that it should be made possible and to be made part of the normal practice for the judge, when he thinks fit and is presented with this report, to say to the welfare officer, "They seem to be within reach of one another: go back and see whether you can get them to agree." If that were to be made a part of the normal procedure in these cases where possible, I believe it would transform the atmosphere of the court, I believe that, even though this Bill does not allow us to discuss conciliation where it ought to be discussed, as the noble and learned Lord, Lord Denning, said ages earlier, it would, by bringing it in at this stage, where the discussion is primarily about details of property and things of that sort, be extremely helpful to the parties.
§ 8.57 p.m.
§ Lord Mishcon
The noble and learned Lord the Lord Chancellor said very correctly in his Second Reading speech that it is a pretty good guiding principle to follow the recommendations of the Law Commission when you re trying to deal with an aspect of law reform. Obviously it was implied in that remark that you are dealing not only with very experienced and reliable people but also with people who have researched their subjects and taken a great deal of trouble before they make their recommendations. Therefore, one does not follow them, if I may say so, at one's peril as a rule. I wonder, therefore, whether I may be allowed to quote from page 6 of the Law Commission's report, Cmnd. 112, in order that we may know what it is that they recommend and how near that is to the amendment which has been put down in the name of my noble and learned friend and myself and also in exactly the same spirit in the other amendment with which we are dealing—that in the names of the noble Lords, Lord McGregor and Lord Donaldson. This is what the commission said:We believe that everything possible should be done to ensure that only those cases which necessarily require adjudication come before the courts for trial of contested issues, and that the legal system should be so structured as to encourage the parties to reach 82 an informed agreement about the financial and other consequences of the breakdown of their marriage, and to dispel the illusion that recourse to hostile litigation can produce magical solutions to intractable problems".Later on, there is a mention of the Bristol scheme and the work in Bristol to which my noble and learned friend has already referred.
There is no point either, if I may say so, in setting up a committee chaired by such an experienced judge in the type of cases that we are dealing with—and I am referring to Mrs. Justice Booth in that connection and also to the Matrimonial Causes Procedure Committee, which was set up at the instance of the noble and learned Lord. On page 3 of their consultation paper, which has only recently been issued, the following appears:In considering possible changes in the present procedures it has been a fundamental approach of the committee to suggest a process which would encourage the parties to reach their own agreements, albeit with the advice of their lawyers and with a clear understanding of what they are doing. It has also been fundamental to our thinking that they should be assisted in this by having available to them at an early stage a conciliation service".As the Bill stands, it will now be possible for divorce to be obtained one year after marriage. It deals with other aspects where conduct will not, we hope, be one of the major matters to be investigated by the court, but nothing is provided for by way of rules of court for a conciliation procedure.
I speak as a practising solicitor when I say that, if the matter is left to the profession and to the profession alone, we are told all too often (although we have a professional duty to try to effect conciliation and reconciliation) when there is no room for a definite procedure by way of conciliation, "Don't you dare show any softness. If you show any softness to the other side, they will take it as weakness. Please proceed". Not all the persuasion in the world can take the place of what is laid down by way of procedure in our courts, perhaps assisted by voluntary bodies outside the courts, which make it an essential part of the proceedings. Your Lordships will not mind if conciliation is wasted in 50 per cent. of cases. Your Lordships will regard it as a triumph if conciliation succeeds in a small number of cases in making agreement take the place of a fight and reconciliation, for the sake of the children of a marriage, take the place of divorce.
If there is no place in the Bill for the family court procedure, let us not miss the conciliation procedure—not laid down in any fixed, inflexible way but laid down by way of provision for rules of court which say that one of the steps in proceedings will be the conciliation procedure to find out whether conciliation can succeed and a battle can be avoided. I very much hope that these two amendments will commend themselves not only to the Committee but to the noble and learned Lord the Lord Chancellor.
§ 9.5 p.m.
§ The Lord Chancellor
The noble Lord, Lord Mishcon, overstates what is admittedly a good case. He began, I believe, by quoting the exact words of the Law Commission report, but, in case he did not, I shall repeat them:The availability and scope of conciliation in similar services should be systematically investigated. Everything possible should be done to encourage recourse to conciliation rather than litigation.".83 That is exactly what I have done. I appointed the committee under Mrs. Justice Booth to do exactly what the Law Commission had recommended; namely, thoroughly to investigate, with a view to encouragement, the possibility of conciliation. That is what they have provided for in their consultative paper: that in every case there should be an initial hearing before the registrar of the court at which the issues may be crystallised and the registrar may, if appropriate—I repeat, "if appropriate"—refer the parties immediately to conciliation then and there. That is the proposal in the consultative paper of Mrs. Justice Booth, whose committee was set up by me, in response to the recommendation I made.
That is, of course, not the same as either of these two amendments. The consultative paper has only just gone out, so we do not know what the response to it may be. It may be that the response will be more positive or less positive than that of Mrs. Justice Booth, but I shall follow the consultative paper and say that we want a response to it, if appropriate. Both of the amendments provide, (without thoroughly investigating anything, as the Law Commission recommended) for compulsion. The difference between the two is that the amendment in the name of the noble Lord, Lord McGregor of Durris, would provide, by rules of court, for compulsory attendance at court by the parties, for consideration to be given to a conciliation appointment. The amendment in the names of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, would compel the parties to go through the conciliation procedure in every case. What is certain is that even the most committed conciliators—and perhaps, in a sense, I am one—recognise that there are a very great number of cases in which conciliation is simply not worth trying.
The noble and learned Lord, Lord Elwyn-Jones, referred to his experiences in China. I did not think that it was at all frivolous to do so; it was a moving and rather striking little episode in his career. I am not sure that I have reached the chapter in his autobiography which deals with it. But, as the noble Lord, Lord Donaldson, pointed out, those parties were trying to effect a reconciliation.
There is a moral in that, too, because we went through all this in 1969. When we started, the original proposition was that spouses should have to go through reconciliation procedures such as that in China before a divorce case could proceed. In the end it was found that a more realistic view—now contained in Section 6 of the principal Act—was that the solicitor should certify whether or not he had discussed reconciliation with his clients.
I am bound to say, and I hope that I am not getting cynical in my old age, that I have always rather considered reconciliation as a desirable thing which happens sometimes but not very often in my experience. I heard of a case last week in which one couple had been married three times and reconciled twice after two divorce proceedings. So while there is life there is hope; they died married. A happy ending to a troubled story.
I have always thought that, in a sense, those who advocate reconciliation tend to be persons who want to salve their conscience for touching the dirty business of divorce at all. We want reconciliation to happen— 84 of course we do if it is a genuine reconciliation. But what we are talking about in these two amendments is conciliation; the desire that, when parties find their marriage has broken down irretrievably, they should recognise that acrimony and bitterness are not necessarily in the interests of either—that there are questions about children, about money, about objects, and about property shared happily between them while the marriage subsisted which are far better discussed rationally, in a civilised manner and without passion, unless passion is so deep that it cannot be avoided.
Although I recognised as a practising lawyer—as I suppose I was, although it is more than 10 years ago now that there are many charges levelled against us, I always tried to keep on good terms with my opponent. I thought it was in the interests of my client to do so. I recognised that they did not always like to see me calling my opponent by his Christian name or possibly lunching with him at the same table, but the fact was that my client's interests were often being advanced much more rationally than he would have liked me to advance them in court by insulting his witnesses or shouting at my opponent across the court.
The first line of defence must be responsible and rational members of the profession. I believe nonetheless in the conciliation procedure. I believe that I have taken the right course by setting up the Booth Committee. I liked their consultative paper in the first instance. I received a most powerful and, I believe, all-party deputation from my noble friend Lady Faithfull last week, and I hope I satisfied them that I genuinely meant what I said; that, although I was under the same constraints as any other Minister in respect of getting money and resources, I believed in conciliation and wanted to see it succeed. I believe the way forward is through the Booth Committee. The idea that I should have put something in the Bill when nothing in the Bill was necessary and that I can proceed either by rules of court or by administrative methods is a misconceived one.
I hope that I have said enough to persuade both the noble Lord, Lord McGregor of Durris, and the noble Lords who sponsored the official Opposition amendment that I genuinely believe in the procedure and I want to make progress. But I do not believe that the Bill can be improved by the introduction of compulsory attendance or a compulsory procedure, according to which of the two alternatives one takes. I do not believe the Bill would be improved by either, but I hope that neither the noble Lord, Lord McGregor of Durris nor the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, will feel that I am at all hostile to the general drift of what they have been saying.
§ Baroness Birk
Following upon what the noble and learned Lord has just said, I can see why he dislikes the compulsory form of conciliation but, as he himself pointed out, it is very different from reconciliation. We are talking here about the results of divorce proceedings—which are by then a little more removed—and the question of children. I fail to be convinced by the noble and learned Lord's argument that there should not be a statutory provision. If people refuse to meet, no one will physically drag them together.
85 If we look back at the arguments made against the original sex discrimination Bills and racial discrimination Bills, we find that they were exactly the same—that one should not bring statutory work into it. However, they both proceeded to lay the foundation on which very much better relationships have been built.
§ The Lord Chancellor
I do not think I am really briefed at this late hour to draw an analogy between matrimonial proceedings and the Race Discrimination Act. I think this is carrying things rather far. All I do say is that Mrs. Justice Booth made the proposal in the consultative paper which I think should be given a fair run, and that says "if appropriate", which excludes compulsion.
§ Lord McGregor of Durris
In view of the sympathetic response of the noble and learned Lord the Lord Chancellor, and in view of the expectations that we may have of the report of the Booth Committee, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Elwyn-Jones had given notice of his intention to move Amendment No. 39:
§ After Clause 37, insert the following new Clause—
§ ("Conciliation procedures
§ Provision shall be made by rules of court to establish conciliation procedures and to require parties to any proceedings for divorce to enter into such procedures; and the court may adjourn proceedings until solicitors acting for the parties have certified that such procedures have been undertaken.")
The noble and learned Lord said: I, too, have noted the friendly words in regard to the concept of conciliation that have fallen from the noble and learned Lord the Lord Chancellor, but I wonder whether we can take him a little further. The amendment in the name of my noble friend Mr. Mishcon and myself is an extremely modest one—
Provision shall be made by rules of court to establish conciliation procedures".
There does not seems to be any dispute between the noble and learned Lord and myself about the need for conciliation procedures, or indeed the requirement that steps should be taken to endeavour to achieve conciliation between the parties.
However, what I think is important in the light of what the noble and learned Lord has said is this. To what extent is he willing to accept whatever recommendations may fall from the committee under the chairmanship of Mrs. Justice Booth. They have already given an indication in their working party report:
It has been fundamental to our thinking that they should be assisted"—
that is to say, the litigants, I think—
by having available to them at an early stage a conciliation service".
It is right that I should read the rest. It goes on:
but it must not be forgotten that divorce is a question of legal status and that husband and wife have legal rights and obligations. It is in this context that the lawyer advises his client. It is outside our terms of reference to consider whether matrimonial suits and matters relating to them should cease to be within the framework of the English legal system.
We do not ask for that; it must be within the
framework of the English legal system. But the availability at an early stage of a conciliation service has already been recommended, as I understand it, by the Matrimonial Causes Procedure Committee. I cannot ask the noble and learned Lord to say in advance, "Of course I accept every recommendation, every jot and tittle of what emerges". But may we take it from what he has said that he is disposed to give a fair wind to what recommendations will emerge from this committee that he has appointed?
§ The Lord Chancellor
I do not think I can do more than say that I shall start with a prejudice in their favour. What they did recommend in their consultation paper was this. There was a provisional recommendation that in every case there should be an initial hearing before the registrar at which the issues may be crystallised and the registrar may, if appropriate, refer the parties to immediate conciliation then and there. That is so far as they went, and I think we must see what reaction that takes and what they make of the reaction after the consultation is complete. But I shall, naturally, start with a prejudice in favour of the committee that I myself set up, even if it is not a golden image.
§ Lord Elwyn-Jones
This matter and this exchange has gone on the record, and we shall wait with hope now for when the report comes. Indeed, if I may say so, without seeking to prejudice the decisions of the relevant committee, I hope that they, too, will read in advance what the noble and learned Lord has said that may give them strength to proceed on the road of conciliation. In the circumstances I do not move my amendment.
§ The Deputy Chairman of Committees (Viscount Simon)
I must apologise to the Committee. After Amendment No. 38 was withdrawn I should have moved, That Clauses 35, 36 and 37 stand part of the Bill. I had not appreciated that this amendment was to a different clause. I first move that Clauses 35, 36 and 37 stand part of the Bill.
§ Clauses 35 to 37 agreed to.
§ [Amendment No. 39 not moved.]
§ Schedule 1 [Minor and consequential amendments]:
§ 9.20 p.m.
§ Baroness David moved Amendment No. 40:
Page 33, line 1, at end insert—
(" . In section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978—
§ The noble Baroness said: For this very last amendment of the Committee stage your Lordships have a new voice, a slightly different theme and, I 87 hope, perhaps a new response, because I think that the noble and learned Lord the Lord Chancellor has not agreed to a single amendment as yet, although he has said he will look at and consider a great many.
§ I hope this is a non-controversial amendment. It is a tightening up amendment, and I hope it will take very little time to persuade the noble and learned Lord to agree to it. I was asked by a very experienced family law solicitor, who I know and respect and have seen in action in the domestic court, whether I would propose this amendment to the Bill. This solicitor was indirectly responsible for Section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978 being enacted. Her experience during the period since that Act came into operation in February 1981 shows that its usefulness could be improved by the minor amendment now proposed.
§ The provisions of Section 6 enable either party to a marriage to obtain from the magistrates' court a consent order that the other party make agreed financial provision for the applicant and the children of the family. It avoids the need for a consent order to be part of proceedings in judicial separation or divorce. It is particularly useful where the parties have separated but have not yet been apart for two years. A court order enables the party who is paying maintenance to claim certain tax relief. This can be important where one income is being stretched to cover two households. Under Section 6 as it now stands, the party who is to make the agreed payments cannot apply for an order that he should make the payments. I hope your Lordships will understand that "he" may be "she", and vice versa.
§ The section allows for applications only if the other party makes the payments. A husband should be able to apply for an order when he is making agreed payments. His wife may not bother to take proceedings simply to help her estranged husband with tax relief. In the amendment, paragraphs (a), (b) and (c) are all intended to enable the party who is making the agreed payments to apply for a court order as well as, of course, retaining the right of the other party to do so. Paragraph (d) in the amendment is to bring the position in the magistrates' courts into line with normal practice in the divorce county courts. If adopted, the amendment would enable the magistrates' court to backdate this order to the date of the original application under Section 2 in cases where an agreed Section 6 order is to be made after there has been a Section 2 application. I believe that this amendment will fit into Clause 38, and I hope that the noble and learned Lord will agree to it. I beg to move.
The Deputy Chairman of Committees
I am sorry; I must again apologise. Before I called this amendment I should have put to the Committee The Question, Whether Clauses 38, 39 and 40 shall stand part of the Bill? I put that Question now.
§ Clauses 38 to 40 agreed to.
§ The Lord Chancellor
Amendment No. 40 was tabled rather late. I think there is probably something in it, but I should like to consider it a little more carefully before Report stage. The noble Baroness is quite right in saying that Section 6 of the Domestic 88 Proceedings and Magistrates' Courts Act 1978, which provides a means whereby the parties to a marriage which has run into difficulties can obtain the assistance of the courts in regulating their financial arrangements without having to parade those difficulties before the court, is drafted in such a way that the applicant is the party who will be the recipient of the proposed payments and not the payer of the proposed payments.
I would agree that at first sight this appears to be a formality and that the proposed amendment, although of limited practical difference, would perhaps be advantageous. As it stands, the provision enables the court to make a consent order in the case where the payer is neither present nor legally represented. In those circumstances. the court must receive sufficient evidence as provided by rules of court of the payer's consent to the making of the order and of his or her—but usually his—financial resources. The amendment would reverse this position by empowering the court to make an order in the absence of a payee or her or his legal representative.
I must reserve this: careful thought must be given to the effect of this and to the safeguards to the payee's position in these circumstances. But I am prepared to give careful consideration to this issue and the points made in support of it. I am grateful to the noble Baroness for having brought the matter to my attention. I hope that she will withdraw the amendment, but with what I hope will be a fairly reasonable response from the Government.
§ Lord Elwyn-Jones
My Lords, before my noble friend Lady David speaks, I owe my noble friend Lord Mishcon an apology. It appears that in a mood of enthusiasm I called him "Mr. Mishcon". We all know perfectly well that he has been nothing but a distinguished adornment to this noble House since he was elevated to the peerage. I do apologise. I do not know what I can do about my mistake. I shall wear sackcloth and ashes for the next sitting of the House.
§ The Lord Chancellor
The noble and learned Lord. Lord Elwyn-Jones, may console himself with the fact that I received from a colleague a letter saying that he had circulated his letter—which was addressed to another member of the Government—to "Quintin Hogg".
§ Baroness David
My Lords, I thank the noble and learned Lord the Lord Chancellor for what I consider to be quite a favourable response. However, according to the original amendment, it was first printed on 6th December. It was not really a last minute amendment. I do not apologise for it being near the end. It was put down at quite a reasonable time. I am pleased with the response of the noble and learned Lord, which I think is fairly favourable. I shall look forward perhaps to a more technically correct amendment being put down by the Government at the next stage of the Bill. I therefore beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 1 agreed to.
§ Remaining schedules agreed to.
§ House resumed: Bill reported without amendment.
§ House adjourned at twenty-nine minutes past nine o'clock.