Matrimonial and Family Proceedings Bill [H.L.]

HL Deb 24 January 1984 vol 447 cc198-229

Consideration on Report resumed.

[Amendment No. 6 not moved.]

Baroness Ewart-Biggs moved Amendment No. 7:

Page 4, line 28, leave out paragraph (d) and insert— ("(d) the educational needs of the child, including nursery education, primary education, secondary education, tertiary education and training;").

The noble Baroness said: My Lords, the wording of this amendment is slightly changed from an amendment which we moved in Committee. In his answer at that time the noble and learned Lord the Lord Chancellor said that he was not very enamoured of the amendment, but he would reflect upon it. He subsequently wrote to my noble and learned friend Lord Elwyn-Jones, giving him the results of his reflections, for which I am extremely grateful. However, we have thought it necessary to put down this amendment—containing slightly different words, as I say—because we think that it deals with a matter of great importance and concern to the children themselves. It is for that reason that I should like again to try to explain why we think the matter is important and to attempt to persuade the noble and learned Lord the Lord Chancellor in regard to it.

First, I should like to remind your Lordships that the amendment does no more than set out the broad framework of educational needs. It does not exclude compulsory education. It simply makes it clear that regard must be had to pre-school and post-compulsory education. The amendment does not need to define educational needs in more detail, since the definition exists in the Education Act 1944 and in subsequent legislation. However, what the amendment does is to accommodate an important change, because the original subsection in the Bill deals with children only as though the couple were still married and viewed the education of the children in that light. Perhaps I may remind your Lordships of the subsection, which, in referring to the child, states that: the court shall in particular have regard to…the manner in which he was being and in which the parties to the marriage expected him to be educated or trained". So the subsection looks on the situation very much as it was before the break-up of the marriage, and our amendment tries to make an adjustment to meet the change in the circumstances of the family that will take place after the break-up of the marriage.

I can myself testify to the very great change which children encounter when their family becomes a one-parent family after having been a two-parent family. The children may well have different educational needs. It might be much better for a small child, for instance, to be at nursery school rather than at home, bearing in mind the tension that exists in a single-parent family.

The amendment tries to accommodate the change that will overcome the whole family. In that light, it is important. The paragraph as it exists now in the Bill looks back upon a previous situation. The amendment allows the court to have particular regard to the standard of living enjoyed by the family before the breakdown of the marriage and will continue to look at the family's assets in that light.

I recall that the noble and learned Lord the Lord Chancellor suggested in Committee that the amendment might even harm the child. The noble and learned Lord gave as an example the case where a child, having been educated in a fee-paying school, would be unlikely to be removed under the wording of the Bill if there was sufficient money to pay for that education, while my amendment could give a stingy and disaffected father a loophole to take the child away from that fee-paying school and to persuade the court that it would satisfy the child's educational needs to go to a state school. Surely, however, there would be no law that could stop a father, a parent, taking the child away from a fee-paying school if he wanted. There are frequent examples at present of parents failing to pay the fees although an undertaking had been given in the first place to leave the child in a particular school. The fees not having been paid, the child would have had to leave the school.

The amendment is an important adjustment in the interests of the child. Of course, it is to be hoped that parents will be able to agree on all matters in relation to their children. However, we know that even within the best regulated families when the two parents are getting on well together there can be serious disagreement. So, when there has been a division and break-up, with the bitterness that follows, I find it difficult to see that there can be harmonious agreement about the education of the child. Surely, the legislative framework must exist for the child's protection should the parents fail to agree. The court's powers to consider all aspects of the child's education in the new circumstances should be made abundantly clear should it need to use them. I beg to move.

Lord Simon of Glaisdale

My Lords, may I voice two matters of disquiet? The first is raised indirectly by this amendment. I refer to the final words of subsection (1) of the new Section 25 on page 3 of the Bill, which read: consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen". In my respectful submission, that provision is absolutely right but it means—I am not sure whether the Government intend it to mean—that after the age of 18, the child is not the first consideration. The first consideration, as I have always understood it, means outweighing any other consideration. It need not necessarily outweigh all considerations but if it is a first consideration, it must outweigh any. That matter is pointed by the reference to tertiary education in the amendment of the noble Baroness. I wonder whether the Government really intend a cut-off point at 18 for the child being made the first consideration. Maybe the Government do intend that, and have good reason for doing so. Otherwise, perhaps my noble and learned friend on the Woolsack would consider it.

The second point that I wanted to make is that I hope I may say with respect that I am not entirely happy either with the Bill or with the amendment. In the Bill, of subsection (3)(d) speaks of: the manner in which he was being and in which the parties to the marriage expected him to be educated or trained". That looks solely to the past. One need not perhaps envisage the situation to which we all aspire of winning a premium bond or, better still, winning a football pool. But it does happen not infrequently that, say, a husband is the substantial owner of a private company which goes public and he is very much financially benefited thereby. It is reasonable, in such circumstances, say, for a public school or a university education to be envisaged. This does not seem to be covered by the words of paragraph (d).

On the other hand, I hope that I may say with respect to the noble Baroness that the style of legislation contained in Amendment No. 7 is liable to cause great difficulties of construction to courts. I should have felt much happier if she had stopped short at the educational needs of the child. If one starts enumerating, there is always the danger of leaving out something significant. My noble and learned friend on the Woolsack mentioned one in Committee—the special school. That is not mentioned, and there are other types of education. All I ask is that, as there will be another opportunity of examining the words both of the clause and of the noble Baroness's amendment, the matter should receive further consideration.

8.48 p.m.

Baroness Lockwood

My Lords, I rise to support my noble friend's amendment. Much as I am tempted and greatly as I sympathise with what he was saying, I shall not follow the noble and learned Lord, Lord Simon of Glaisdale, down the path of the primary interest of a child beyond the age of 18, except to say that I think it is right to state that tertiary education could include someone between the ages of 16 and 18 in a college of further education, for example, where they were taking a qualification lower than a university qualification. My noble friend has pointed out that this amendment has taken aboard some of the comments that the noble and learned Lord, the Lord Chancellor, made on Second Reading. So the amendment does now include all aspects of education in the sense of the 1944 Act.

I should like to draw attention to two aspects of education which are important not only for parents but also for the courts to take into account when looking at this matter. Again, as my noble friend has said, if there is agreement between the parties about the way in which they would like the child or children to be educated, there are no problems. But, if there is disagreement, then problems may arise. I underline the inclusion of nursery education because this is one aspect of education to which sometimes parents, and indeed the courts, might not always attach priority. For example, the reason for the courts not attaching priority to nursery education is that consecutive Governments since 1944 have not attached priority to nursery education.

The final part of the amendment relates to training. Again, it is not always in the minds of parents, nor in the minds of the courts, that the training needs of a child might be taken into account. If the child was leaving school at the age of 16 and one of the parents wanted the child to take up some kind of formal training, it is important that that should be given due weight. It is for those reasons that the amendment relates to sections of education and ages within the educational span. I hope that the noble and learned Lord the Lord Chancellor, whose words have been taken seriously to heart by the noble Baroness, will look more kindly on this amendment than he did in Committee.

Lord Simon of Glaisdale

My Lords, with the leave of your Lordships and arising out of what the noble Baroness has said, I should like to say that I realise that I expressed myself clumsily in suggesting that the clause should end at "education". I certainly did not mean to eliminate "training", which I think is necessary.

Lord Elwyn-Jones

My Lords, I would like to support my noble friends Lady Ewart-Biggs and Lady Lockwood on the importance that they have attached to the need for this amendment. On the breakup of a marriage and the occurrence of a divorce there is sometimes, alas! no type of agreement between the father and mother, or the husband and wife, as to the future care and upbringing of the child. A number of matters can be omitted and overlooked in that scene. As my noble friend Lady Lockwood has emphasised, matters can just be left out of consideration. My noble friend has identified in particular the opportunities and facilities for nursery education.

I must say that the suggestion of my noble and learned friend Lord Simon of Glaisdale that everything should be left out after "educational needs of the child" would at least bring home the necessity to consider that factor on the taking place of the breakdown of a marriage to the point of divorce. However, a useful purpose in the interests of the child would be served by including: nursery education, primary education, secondary education, tertiary education". After all, the court would be doing no more than drawing attention to what is publicly available. I sympathise with the view that the state should not take too much upon itself and act in loco parentis in a direct sense. I know that that is a point that has influenced the mind of the noble and learned Lord the Lord Chancellor, but he may think that no harm at any rate is done by underlining the need for particular regard to be paid to the educational needs of the child and in particular to the aspects of it which are of very great importance and which are identified in the amendment.

The Lord Chancellor

My Lords, there is one aspect of this matter to which attention has not been drawn and which I venture to think is fundamental to the discussion of this amendment. Paragraph (d) is not an amendment of the law: it is a statement of the existing law—the law which has existed since 1971 and which has worked perfectly well during the 12 years which have passed. The law is that, although they may be divorced, it is still the duty of the parents—not of the court or of the state, except in so far as the parents make use of the state system—to provide for the education of the child.

This amendment alters that situation, and alters it for the worse. Of course, if the parents differ—and they sadly sometimes do so, as I think the noble and learned Lord has said—about what is the appropriate education of the child, then the court has to decide it. But the court has to decide it under the general law—and I am not talking about this amendment at the moment—in accordance with the welfare of the child viewed in the broadest possible terms.

I assure all of your Lordships who have taken part in this debate that the courts are perfectly well aware of the need of a child—every child—for education and of the importance of education in its welfare. Indeed, it is not the only factor in its welfare. Some people consider that the important factor is housing; some people think that it is material advantages; some people think it is religion; some people think one thing and others think another. My experience is that it varies indefinitely in accordance with the circumstances of the case. But I assure the noble Baroness that the courts have heard of nursery education—they know about it. They know about its importance or, if they do not, they will be reminded of it by counsel for one side or the other. They know about tertiary education. Let me say in passing to my noble and learned friend Lord Simon of Glaisdale that that is provided for under the principal Act by Section 29(3)—

Lord Simon of Glaisdale

My Lords, will my noble and learned friend allow me to intervene? When I voiced my difficulty about the paragraph and the amendment, my noble and learned friend very kindly directed my attention to Section 29. It does not at all meet my point about what is the primary consideration, which is the new provision in the Bill.

The Lord Chancellor

My Lords, no, it was necessary for me to remind the House of Section 29, because Section 29 is the general law which deals with tertiary education. It would of course be totally inappropriate to introduce Section 29, which already exists and which deals with tertiary education—and we went into this in considerable detail in Committee—into this particular subsection, except in so far as it affects children under the age of 18, because it is contrary to the general law to give priority to the interests of one adult over another. The law provides, whether in its unamended state or its amended state, that the children and their welfare (and this is given added importance by the Bill under consideration) are the first consideration.

However, once they become of age, they can decide for themselves. It is no good the court making orders about a child between the ages of 18 and 21. There are some people, including myself, who think that the age of 18 is too early an age for majority, but that is past praying for. The adult decides his own future, and it is no good putting things into the Bill which deal with children over the age of 18, except in so far as the court has power to make provision for them if it is considered right in relation to the other factors. That is why I referred to Section 29.

Once one accepts that the education of the children is the continuing responsibility of the parents, except when they disagree, the effect of the amendment is to remove the responsibility for the education of their children from the parents and to give it to an organ of the state; namely, the courts. Of course, the organ of the state, which is provided under my right honourable friend the Secretary of State—the state school system—has a certain responsibility for parents, whether they are married or divorced, and they must obey the law in that respect. But I assure the noble Baroness that, as a matter of everyday experience, the courts are perfectly familiar with the various kinds of education and with the need for training.

The weakness of starting to enumerate matters in which one is particularly interested—in this case nursery, primary, secondary and tertiary education and training—inevitably means that one omits other factors which enter into welfare and to which the parents may give a good deal of attention, if they agree. This particular amendment omits special education, which is one of the most important factors. However, the vice of introducing this enumeration of what happens—quite rightly—to interest individuals is that one always omits something.

The courts are perfectly familar with the problems relating to education. That is what registrars and judges in the Family Division and in the county courts are for. But, basically speaking, the noble Baroness is seeking not to alter the Bill in the sense that the Bill produces an amendment to the law, but to alter a provision of the general law which is reproduced in the Bill in order to avoid legislation by reference. That is a mistake. The parents retain their responsibilities and they retain their rights when they agree. When they do not agree, the welfare of the child—which of course includes education but it is not the only factor under consideration—is the test by which the courts must be governed. The mere enumeration of particular kinds of school or particular kinds of education or training only makes the task of the courts more difficult and not easier.

Baroness Ewart-Biggs

My Lords, I should very much like to thank noble Lords who have contributed to this short discussion. I still maintain that the wording in this amendment is based on trying to safeguard the welfare of the child and of the custodial parent, the mother. I still do not have the total confidence which the noble and learned Lord the Lord Chancellor has in courts always deciding the right way. I can still see the coincidence of a reactionary farther and a reactionary judge deciding between them that small children should stay at home with their mother when in fact it would be to the detriment of both the child and the mother.

However, I accept that our amendment would be a difficult one to maintain. The suggestion made by the noble and learned Lord, Lord Simon, is a second best. If the amendment could stop at the words, "the educational needs", that would be better than nothing. Certainly I do not wish to divide the House because I do not think that there are enough people here this evening. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.6 p.m.

Lord Elwyn-Jones moved Amendment No. 8:

Page 5, line 37, at end insert—

("Report on operation of this Part of this Act.

25B. The Lord Chancellor shall, within three years of the coming into force of this section, and, thereafter, every five years, lay before Parliament a report on the operation of this Part of this Act; and the Lord Chancellor shall institute such research as is necessary to provide the information for such reports.").

The noble and learned Lord said: My Lords, we discussed this amendment in Committee and in doing so I ventured to draw attention to the relative lack of reliable information about many of the issues raised in the Bill, particularly in regard to financial provision: for example, about the adequacy of levels of maintenance.

The Law Commission recommended that provision should be made for continuous motoring. I have made the same mistake of referring to "motoring" again. It has become a habit; it follows the disaster of the noble and learned Lord the Lord Chancellor on an earlier occasion which has been impinged upon my mind, or what I am pleased to call my mind. Perhaps all that could be erased from the record, if it is possible. Apparently that cannot be done! However, perhaps I can return to what I was saying before I interrupted myself.

The Law Commission recommended that provision should be made for continuous monitoring of the operation of any amending legislation dealing with the financial consequences of divorce and it was that which in part prompted the putting down of the amendment which I am moving.

The noble and learned Lord and the Lord Chancellor agreed when we discussed the matter that what was needed was more knowledge about the financial consequences of divorce, and since the debate occurred he has been good enough to send me a most helpful and—I deem to think—encouraging letter on this matter, for which I am grateful. I think it is of such importance that, if he will allow me to do so, I should like to read out what he proposes so that it can be placed upon the public record: not, of course, so that it may be used in evidence against him if he does not carry out what he has undertaken in this half-private communication, but so that it should be known what the Lod Chancellor has in mind. He writes: I can now confirm that a feasibility study for a large scale survey on the financial consequences of divorce will be undertaken by the Social Services Division of OPCS in the Spring, with a view to producing a Report in June/July. If the feasibility study is acceptable the survey could go ahead in the Autumn with a Report being made perhaps 18 months later. The aims of the survey would be to describe the types of financial orders that were made, including those relating to spouse and children, and covering property as well as income; to measure the size of the orders made and relate this to eligibility to supplementary benefit, income tax liability, legal aid charges and cost orders; to describe the arrangements and custody orders made in relation to any children of the marriage and to find out what happens to orders over a period of time including the extent to which orders are actually complied with". Then the final paragraph: The Part of the study dealing with what happens to orders over a period of time would be carried out in conjunction with the General Household Survey. I hope that as a result of this study it will prove possible by extending the scope of the questions asked in the General Household Survey to monitor, from year to year, the effect of the law on financial provision after divorce. I do not think that imposing a statutory duty on me and my successors in office on the lines of section 105 of the Children Act I 975"— which I proposed in the amendment and it is included in the present amendment— would achieve a great deal". It was also suggested by the Law Commission. Much more will be achieved by the sort of research which I am commissioning, and I trust that you will regard this as a satisfactory assurance of the nature which you were seeking when you withdrew your amendment".

If I may say so, that is a most generous way of carrying out the need for research into these matters which I ventured to stress in my speech, and although much more needs to be said it may well be that the noble Lord, Lord McGregor of Durris, will refer to that when he follows.

In the circumstances of those undertakings where what was stressed was the need for more information and the need for more research—and that apparently is to be carried out—I ask leave to withdraw my amendment. I should formally move my amendment in the first instance.

9.13 p.m.

Lord McGregor of Durris

My Lords, with the leave of the House—

The Lord Chancellor

No leave is needed, my Lords.

Lord McGregor of Durris

I see. What I hoped might be possible would be for us to withdraw the second part of the following amendment and to follow the noble and learned Lord, Lord Elwyn-Jones, by accepting what he has just said. I should like to make some comments on the general research that is proposed.

First of all, I am slightly less enthusiastic than the noble Lord, Lord Elwyn-Jones, who has just spoken about this piece of research. I think it is admirable that it should be done, and I welcome the initiative of the noble and learned Lord on the Woolsack in promoting it. It must be remembered, however, that what it will simply produce, if it is successful, is a photograph at a point in time on the maintenance situation in 1984–85. I am a little sceptical about the 18 months between start and finish, but no results will be available until 1986.

By this time I suspect that judicial policy in respect of the administration of this legislation will have crystallised and will probably not be open to change as a result of research findings. If the research in the suggestions made about using the general household survey produces a stream of information on an annual basis, that is greatly to be welcomed. My view is that, however valuable this type of research is, it is no substitute for a continuous flow of annual statistical intelligence, such as we receive in some areas from the civil judicial statistics. Though I welcome and accept what the noble and learned Lord, Lord Elwyn-Jones, said about this research, when we deal with one half of the following amendment, I hope—not in any divisive manner but simply as a subject for consideration—to argue the case for an improvement in regular statistical services relating to maintenance and other aspects of divorce.

Lord Simon of Glaisdale

My Lords, I was proposing to support this amendment for two reasons: first, because during the time that I had some responsibility for this sphere of jurisprudence I was continually conscious of how little we knew of the cumulative facts of the impact of our general decisions. The second reason was because the noble Lord, Lord McGregor of Durris, made a pioneering study—which I believe is unfortunately still a unique study—with Mr. Blom Cooper and, I think, Mr. Gibson, called Separated Spouses, of the matrimonial jurisdiction of magistrates' courts. The number of facts that the noble Lord turned up was surprising and most influential. Anything he says on this matter ought to be given the greatest weight.

I do not entirely share the despondency of the noble Lord, Lord McGregor, about the readiness of the judiciary to respond to new findings. The effect of Separated Spouses was beneficial and was significant, but I share with my noble and learned friend Lord Elwyn-Jones gratitude to my noble and learned friend on the Woolsack for what seems to be a very forthcoming gesture. As long as the research team bears in mind what the noble Lord, Lord McGregor has said, it seems to me to meet the situation very satisfactorily.

The Lord Chancellor

My Lords, the very friendly approach of the noble and learned Lord, Lord Elwyn-Jones, to my letter has relieved me of a considerable burden in expounding my general approach to these problems. The scope of the feasibility study which I have in mind was published in the legal press only the other day and it is to be found, therefore, in an accessible form.

The amendment itself is, for that purpose, hardly here nor there, because our discussions have now moved beyond it. The proposal that every five years my successor would have to publish a report on the working of the Act, as it then would be, amalgamated with the principal Act, does not appeal to me so much as the question of research. I imagine that such reports would be made in due course and that they would contain as much or as little information as Sir Humphrey Appleby would choose to put inside. I have very little faith in such reports. On the other hand, I accept the desirability (on the lines of my letter to the noble and learned Lord) of a stream of additional information. Too little is known and the only question really is in what form it should be provided and by whom. The Law Commission in paragraph 9 of their report pinpointed the need for research by way of a survey into the financial consequence of divorce.

There are two quite separate matters which I think I should like to add to this discussion. The first is, as I think I indicated at Committee stage, that the Lord Chancellor's Department has now appointed a research officer at principal level. She is about to commence a review of the department's research needs. This will include consultation with appropriate outside interests. The aim of the review is to produce a draft research programme covering what should be done over the next few years, funds permitting. It is too early to know whether we ourselves shall be justified in having a research unit in the near future. The size of the research budget will need to be determined after review.

There is a broader question to which I should like to revert, although I mentioned some of it when I was talking at Committee stage. Years ago I was responsible for research in a broader sense and I reached some rather positive conclusions about Government research which I should like to call in aid in connection with the present discussion. In the first place, I think that all research—and for this purpose I am talking as much about the physical sciences as about the social sciences—ought to be to some extent distanced from the user departments; and, from this point of view, my own department is a user department. We have done what I have just said in introducing a research officer into a user department. But research, if it is to be useful (and it is easier, I think, to waste money on research than on almost any other subject) has to carry with it certain characteristics.

In the first place, you are dealing with the unknown when you are dealing with research. You do not know what answers are going to come up and, therefore, you have to start not merely with the human requirement—say, a cure for cancer—but with a promising lead. There is no use in asking to spend more money on research into cancer unless you have a certain number of promising leads which it is desirable to pursue. Secondly, you have to find a first-class man to do the research. If you do not get both those characteristics, you are going to fail and you are going to waste money on a very difficult subject. And, of course, when you have identified the lead and you have found an available person, then, whether you find the lead inside the Government machine, or the university machine or whatever, for that particular thing, you have to relate to other competing requirements which may be outside your own domain.

It was for that reason that, if I was not actually the father, I was, I think, the godfather of what was then called the Social Sciences Research Council—it now has a slightly different name—which still continues. It carries the power to do exactly what I have been describing; that is, it is distanced from the user departments and from Government; it uses Government resources; it can deal with priorities, and with competing priorities, and it can evaluate promising leads and available research material.

I would be sorry to undertake that kind of research, apart from what I have described as that which I have introduced into my department, as a user department. I think that the appropriate body is the research council. I believe that one can and should, if one is conscious of one's needs, approach the research council for funds, for help and for support in particular projects. One is assisted thereby by a research officer in one's own department. But I should like to keep within the general approach that I have outlined, which I think is applicable to more departments than my own.

I am glad that the noble and learned Lord was good enough to treat my approach to him in a friendly spirit, because it was intended in a friendly spirit. Having made my letter available, as he has by quoting parts of it, I think it will be of value to other people besides this small gathering here tonight. So I thank him for his amendment and hope that it will not prove contentious.

Lord Elwyn-Jones

My Lords, in the light of the contents of the letter and what the noble and learned Lord has said, certainly this will not be contentious. I confess that I am a trifle puzzled about the role of the research officer within the office of the Lord Chancellor, bearing in mind the infinity of subjects which would be worthy of research and which come within the ambit of the Lord Chancellor. The lady will be a busy lady, whoever she may be, and I am sure that she will be an admirably chosen person.

But what will be very important is that the outcome of the type of work and monitoring that is contemplated should be available to the public to see how the new procedures of the Bill are progressing. There is little doubt that there is a good deal of public concern about the whole of this operation in relation to the Bill, and still a good deal of anxiety. The noble and learned Lord may well say, "misunderstanding", but, whatever it may be called, a great deal of elucidation will still be required about the progress of this advance in a field where hundreds of thousands of families and individuals are affected. But, at any rate, at this stage I am grateful for the immediate undertakings that have been given and further elaborated by the noble and learned Lord. In these circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Lord McGregor of Durris moved Amendment No. 9:

Page 5, line 37, at end insert—

("Monitoring the effects of this Part of the Act.

25C. The Lord Chancellor shall, with the coming into force of the Matrimonial and Family Proceedings Act 1984, collect and publish annually such information as is available in court records and elsewhere to ascertain the effects of this Part of this Act on the financial situation of parties to the proceedings and on children of the family; and the Lord Chancellor shall promote such general enquiries into the operation of this Act as will provide a factual basis for analysing the resulting effects of the collapse of marriages upon spouses and children.").

The noble Lord said: My Lords, I should like, on the basis that we have already dealt with the second part of the amendment, to move the first part—namely, that part of the amendment which reads: The Lord Chancellor shall, with the coming into force of the Matrimonial and Family Proceedings Act 1984, collect and publish annually such information as is available in court records and elsewhere to ascertain the effects of [Part II] of this Act on the financial situation of parties to the proceedings and on children of the family". I apologise in advance to the House for asking it to reflect for a short while on the importance of statistics, which most people regard as as repellent in contemplation as in reality.

I was greatly helped by the noble and learned Lord on the Woolsack's statement of his general views on research and the role which he envisages for his department. "Research" is a superior word, often of very inferior result. It comes in different shapes and sizes. There is the grand research which universities say they undertake. There is the research, which is often frequently despised in universities, which is functionally related to policy making, the kind of research which may be very useful to administrators. We ought to define rather carefully what kind of research may be useful in this field.

As far as socio-legal research is concerned, I am an unashamed advocate of the importance of fact gathering. We know very little indeed about the civil law. Fact gathering is necessary. Almost none has been done in this country. A certain amount of work has been done but very little, if any, upon which a law reform body or administrators can draw. In recent years the comparison between England and Scotland has been quite remarkable. Between 1980 and 1982 eight studies, commissioned by the Scottish Law Commission, were published by the Central Research Unit at the Scottish Office. There is one study, by Mrs. Barbara Doig, on the nature and scale of aliment and financial provision on divorce in Scotland, which answers for Scotland many of the questions which would make our present discussion, if answered for England, otiose.

The most recent publication this month is a study of the first year of the simplified divorce procedure in Scotland. It has existed in England for very much longer but we still lack that kind of study. They are very small scale studies and do not require large resources. My feeling is that in the present state of our knowledge and for the purposes that we have in mind that sort of study, not grand, large-scale research, is what we should be aiming for.

I should like to take up one point made by the noble and learned Lord the Lord Chancellor. He said at Committee stage, and has said again, that his department is not a research department. He said also, rightly, that to do research one needs a lead and one needs decent people. Fortunately, the Government's policy towards universities has now given us an ample supply of decent researchers. It is in respect of leads that we are in difficulties. To illustrate that point, I should like to refer to some past experience.

If you want a lead to do research, you must know in some rough outline what is happening. In 1974 the Committee on One-Parent Families wrote in its report: Legislators, judges, administrators, critics and citizens must have the knowledge of the social consequences of legal actions without which a democratic society cannot keep its institutions under constant and open scrutiny". It went on to argue the case for better statistics on maintenance.

In 1857 the Law Amendment Society published a report in which it stated: Judicial statistics afford the best if not the only means of noting the practical working of laws and tribunals; of testing the principles of legal reforms; and of estimating the utility of any system of jurisprudence by the testimony of actual fact".

If one looks at our recent history, the Beeching Commission, for example, on assizes and quarter sessions, which published its report in 1969, said in that report that it could not adequately tackle its work until it had commissioned a large-scale piece of statistical research designed to estimate the case-load of the courts. That piece of research led to the publication from, I believe, 1972 onwards of a volume published annually by the Lord Chancellor's Department under the title, Statistics of Judicial Administration. That was assimilated with the judicial statistics in the mid-1970s. That was an area in which a report designed to improve the management of the administration of justice could not proceed without that type of knowledge.

It I may say so with respect, although the Lord Chancellor's Office is not a research department, it is a managing department. I do not believe that effective management can be conducted—quite apart from public awareness of the administration of justice—without a continuous flow of statistical intelligence.

Secondly, one looks at the area of legal aid—which the noble and learned Lord on the Woolsack described not so very long ago as the fastest growing of our social services; I believe it is probably the largest item of expenditure of his department. The 30th annual report of his Legal Aid Advisory Committee wrote as follows: As in previous years, our work has been hampered by the lack of information about the working of legal aid. Quite apart from the fact that the legal aid statistics contained in the appendices to the Law Society's report cannot be related to the judicial statistics published by your Lordship's Department, both sets of statistics suffer from defects that reduce their value to those concerned with the administration of legal aid". And the report goes on to make a series of raking criticisms of the legal aid statistics and the fact that their poverty and paucity introduces great difficulties in that committee's assessment of the management of legal aid.

As the Law Commission said, exactly the same situation applies in respect of maintenance, not only after divorce, but we have to remember that the Bill we are dealing with relates to the family jurisdiction of the summary courts. Perhaps I may illustrate one point and one point only from them. The 1978 Act, which revised the jurisdiction of magistrates, seems to be dying of inanition so far as its substantive jurisdiction is concerned. What seems to be happening to magistrates' courts is that they are becoming the enforcement agency for the maintenance orders of the superior courts. The number of orders registered for enforcement in magistrates' courts has increased tenfold in recent years, from some 2,000 to 20,000 and more.

The statistics about the matrimonial proceedings in the summary courts used to be published in the criminal statistics by the Home Office. In about 1964 they were transferred, after criticism of this from at least half a dozen committees, including the Adams Committee on the civil judicial statistics, the committee on the criminal statistics, the committee on the age of majority, the committee on one-parent families. These were transferred to the civil judicial statistics and they were published there, my recollection is, from 1968 to 1979.

Suddenly the table disappeared, and there were no statistics from the Home Office, there were no statistics from the Lord Chancellor's Office, and I have not seen any since. All that I have seen is a statement in the report of the Robinson Committee on Conciliation which says that the Home Office discovered in 1981 that these statistics were unreliable and was arranging new ones. So here we are in one very important area of maintenance with no knowledge of any kind and not even a statistic currently published, in circumstances in which the Home Office had been told year after year since the middle of the 1960s that the statistics were grotesquely inaccurate.

My argument is simply that of course we need research, we need surveys, but you cannot get the lead of which the noble and learned Lord on the Woolsack spoke if you have no information of any kind as to what is happening. I therefore rate the provision of annual statistics from court records as an imperative necessity. We need statistics on maintenance, the number of orders made, the amounts for which they are made, the number of applications for variation, and the like. Without those we cannot maintain an adequate criticism of our system of justice. That is a lengthy—an over-lengthy—justification for the second part of the amendment, for which I apologise.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord McGregor of Durris, as one who has been a practitioner in the field of the social services and conciliation. I do not think that the setting up of a research and feasibility study is at variance with the collection of annual statistics. In fact, as the noble Lord, Lord McGregor of Durris, said, they are complementary. In every other field annual statistics are collected. The number of children in care is produced once a year. The number of children appearing before the juvenile courts is produced once a year. In all the social services—housing, health and education—annual statistics are collected in order that one can see the trends. I suggest that to collect these statistics in the civil judicial list would not cost anything. It would give very little work to people because the statistics in any case have to be collected in other areas and they would be useful to other departments—for example, the Department of Health and Social Security.

The cost of living index varies—I was going to say from year to year but it is almost from month to month—but it does vary from year to year and it is important to have statistics for other departments as well as for the Lord Chancellor's department. It is important to have them in Government departments. Therefore, I very much support this amendment as complementary to the previous amendment, which I know has been withdrawn. In fact, it is very difficult to carry out a research and feasibility study without having annual statistics. They are extremely important. They would, in any case, have to be kept.

My last point is on the question of policy. If one does not keep annual statistics it is difficult to see the trend. If one waits for five years the trend will have changed and one will not know what has gone on in the intervening period. Furthermore, in local government—as in central government, but I quote local government—all the departments have to keep their statistics annually in order to be able to fix their policy and their rates for the following year. With the greatest respect I beg the noble and learned Lord the Lord Chancellor to consider this as being a great practical asset both to the researchers on the feasibility study and those who are working in this field.

The Lord Chancellor

My Lords, I am sure the House is indebted to the noble Lord, Lord McGregor of Durris, and also to my noble friend for their contributions to this debate. However, there is one statistic to which I must draw the attention of the House and it is one of vital importance to me. This amendment was put down so late that, having been processed by my department, it arrived on my desk somewhere between 2 and 2.15 p.m. I have to change my clothes during that quarter of an hour, and in the nature of the case I have had to sit here almost continuously dealing with other amendments since 2.30 p.m. with only a brief interval. I should have liked to deal with this important amendment in rather greater detail and in a more constructive way than I am perhaps able to do. I hope that the noble Lord, Lord McGregor of Durris, and my noble friend Lady Faithfull will acquit me of any intentional discourtesy.

It should not be thought that I am in any way deriding the importance of collecting statistics. It is no less important in the field of judicial administration than in other fields of administration. The amount of work involved is staff intensive and it has to compete for available resources. That puts the administrator in a considerable difficulty, if it be true, and the extent to which it is true—and the noble Lord, Lord McGregor, has indicated that it is to a large extent true—that one starts very largely from scratch. The collection of statistics from the courts for the judicial statistics is now under review within the Lord Chancellor's Department with a view to improving the value of the information which can be obtained from them.

The old system of collecting magistrates' court domestic statistics—which is of course outside the field of my department and within the field of the Home Office—was recognised by the Home Office as defective, so a new data collection scheme to collect magistrates' court statistics of domestic proceedings was set up at the beginning of 1983. Publication of the first returns for January to June 1983 was made in a Home Office statistical bulletin published on 19th January 1984.

There are, I am told—although I shall not enumerate them at this hour—drafting defects in the amendment as proposed. I cannot of course undertake at short notice to impose undesirable burdens upon public funds and pre-empt decisions on priorities which I have not yet made and which can be made only in competition with and consultation with other departments.

The amendment is unnecessary to this extent. There is a feasibility study into research on the financial consequences of divorce, which is what the Law Commission recommended (as we saw in the previous amendment) in paragraph 9 of Law Commission report 112 and which has already started. It is being carried out by the social survey division of the Office of Population Censuses and Surveys. If the feasibility study proves viable—and the report on that will, I think, be available in June, at any rate to me—it is hoped to carry out a full study next autumn lasting about 18 months. Thereafter it may prove possible to undertake monitoring of financial provision on divorce by slightly extending the scope of the general household survey. Such other monitoring as is required can be achieved by improvements to the collection of statistics of orders made in ancillary proceedings which are now under consideration within my department, as I indicated a moment ago. These of course would be published annually in the judicial statistics.

I greatly regret that in the time available I have not been able to acquire a more constructive or positive approach to the amendment of the noble Lord, Lord McGregor. I hope that he will not think from that that I am deriding the business of collecting statistics and that he will pursue the matter from time to time. I shall be very happy to pursue it with him, but I cannot give him more information at the moment.

In the meantime, as it stands, the amendment would involve me in a commitment which I am not able to make this evening. It is, I believe, subject to the criticism of the defects in drafting which I have not enumerated, but which I am told exist. I am very grateful to the noble Lord, Lord McGregor, for having raised the subject and to my noble friend for having enlarged upon it, but I do not think that I can go further this evening.

Lord McGregor of Durris

My Lords, I am grateful to the noble and learned Lord on the Woolsack for his friendly response to the amendment which, we said at the beginning, we intended as a matter for consideration, not for division. I very much regret that the amendment invaded his dressing room. I think it is fair to point out that the amendment has been slightly reworded from the one that we originally put down for the Committee stage and that all the changes have been made to conform with what the noble and learned Lord on the Woolsack said in Committee. As now couched, the amendment carries some of his own phrases. Perhaps some of the further discussion that the noble and learned Lord mentioned can take place at Third Reading.

The Lord Chancellor

My Lords, it is of course always possible to put down amendments for Third Reading, though it is not for me to indicate to the House whether or not it is desirable to do so. But if an amendment is put down in good time, I shall try to deal with it, if that is the wish of the House.

Lord McGregor of Durris

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 6 [Variation and discharge of orders for periodical payments]:

9.58 p.m.

Baroness Lockwood moved Amendment No. 10A:

Page 7, line 28, leave out ("subsection") and insert ("subsections")

The noble Baroness said: My Lords, in moving this amendment I wish at the same time to speak also to Amendment No. 10B:

Page 7, line 35, at end insert— ("(11) The following provisions shall apply to any order for periodical payments or secured periodical payments:

1. (a) The amount specified in the order shall be deemed to be varied annually by a percentage to be specified in the retail price index: and
2. (b) the variation shall take effect on each anniversary of the making of the order.

(12) Nothing in subsection (11) above shall affect the right of any party to a periodical payments order to apply to the court at any time for the order to be varied; but an order so varied shall thereafter be subject to the provisions for annual increase set out above.".")

Both the amendments hang together. They are concerned with the very important principle of index linking being built into maintenance awards. In speaking to the two amendments I am conscious of the fact that the issue was raised previously in Committee, but in drafting the amendments we have tried to take on board some of the Lord Chancellor's difficulties in relation to what we propose.

In the first place, on the earlier amendment the Lord Chancellor pointed out that though it made reference to an order for periodical payments, it did not make reference to secured periodical payments. That point has now been inserted into the amendment so that there is harmonisation between the two types of payments.

The second point is that in order to meet some of the very real difficulties which I appreciated when the noble and learned Lord the Lord Chancellor outlined them in Committee, we are suggesting that the changes in the amounts specified in the order should be varied in accordance with the retail price index. This would mean that it would not be necessary for a special maintenance index to be prepared by the Lord Chancellor's Department, but that such variations would be in accordance with those that take place in relation to retirement pensions and other benefits that are index linked.

I know that at Committee stage the noble and learned Lord the Lord Chancellor made reference to the fact that he had some difficulty because he thought this might be unfair to some people in the sense that everyone is above or below average. It is not possible to meet that criticism entirely, but I feel that the amendment goes a considerable way towards meeting it. If we index link the payments in a way that is acceptable in relation to other benefits, then, I think, we are doing the best that it is possible to do in order to be fair to all concerned.

It is a fact, I think, that wage and salary increases to date have on average been ahead of the retail price index. So, if we are concerned with relating a maintenance order to someone who is a wage earner, I would not have thought that there is any difficulty in building this annual adjustment into the system.

The noble and learned Lord the Lord Chancellor made reference to the difficulties that would be created for his department and the courts in dealing with something like 100,000 orders registered in the county courts and the magistrates' courts. I would point out that, in the Inland Revenue, for instance, we are in the process of having our tax returns and our taxation system computerised. I hope that the Lord Chancellor's Department would not be behind the Inland Revenue in introducing computerisation to the payment of awards. In that sense, I believe that if the system was computerised, again, it should help to relieve some of the difficulties that the noble and learned Lord the Lord Chancellor pointed to.

We state clearly that nothing in this subsection shall affect the right of any party to a periodical payment to seek a variation in the order. But the whole point of the amendment is to try and render that obsolete, to try and reduce as much as possible the need for individuals to go back to the courts for a variation. I suggest that there are two reasons why it is important that this should be done. It does take up the time of the courts if one goes back to the courts for a variation.

Perhaps much more important, it is a terrible ordeal very often to the individual concerned to have to go back to the court for a second, third and fourth time. Often this ordeal is so great that the individual does not apply for a variation. As a consequence many people who might be maintained to a greater extent by their former spouse are left to be maintained by the state. I suggest that this would be a great help in reducing the number of occasions when individuals would need to go back to the courts to seek a variation. For all those reasons, I hope that your Lordships' House will be able to look favourably upon the amendment.

Lord Elwyn-Jones

My Lords, I would like to support my noble friend's amendment.

A Noble Lord

Oh!

Lord Elwyn-Jones

My Lords, the noble Baroness most certainly is my most dear and noble friend, if I may add affectionate additions to the description of her. I am very happy indeed to support her amendment. The amendment raises the important principle that periodic index linking should be built into maintenance awards. My noble friend has already pointed out that this would have a very considerable advantage in a number of ways. It would eliminate the necessity for frequent variations which could be brought in with all the cost and expense and difficulty that that would cause. And of course there are, as she pointed out during the Committee stage, many precedents for index linking—namely, state pensions; various Department of Health and Social Security awards contain elements of index linking: and pensions have sometimes been linked to past increases and sometimes to anticipated future increases in the cost of living. Amendment No. 10B which follows links the matter to the changes in the retail price index.

I hope, therefore, that it will be possible for the Government to agree to this important proposal, which will, I venture to think, do justice to the needs of the parties concerned, and do so in a decent and time-saving way which will reduce unnecessary legal aid expenditure which would otherwise be involved. I therefore hope that we shall receive even at this late hour an indication of approval by the Government of the actual terms of the amendment. If I may say so, we have not had many acceptances in the course of this day. Fine words have come, but perhaps this time we may have actual undertakings.

Lord Simon of Glaisdale

My Lords, I am far from confident that I have got the point right, because it is only just by the courtesy of the noble Lord, Lord Underhill, that I have the right Marshalled List. I can see the attraction of this amendment in an inflationary situation, but we are not legislating purely for an inflationary situation. One must remember that during the 1930s there was, pretty steadily, a gradual deflation.

I have already indicated my view that the principal Act involved an injustice to wives and that that is compounded by this Bill. I am not sure that this amendment in a deflationary situation will not inure further to the detriment of wives. It will automatically decrease their maintenance, whereas it seems to me that the husband's emoluments will go further in that situation. As I have said, I may have got the point entirely wrong because I was working from the Marshalled List which was evidently current until today. However, I should like to be reassured on that point.

The Lord Chancellor

My Lords, I, too, have been considerably inconvenienced by the late hour at which this amendment was brought forward. I must begin by apologising to the noble Baroness and to the noble and learned Lord for not realising to the full the political friendship which existed between them. The noble Baroness lurks on the Mappin Terraces somewhere at a bearing of 270° from the Woolsack, and I had not normally associated that with ardent support of the Labour Party but rather with support of the other occupants of that block of Benches. However, that is a mistake for which I can only apologise. It is our business to know as much as we possibly can about as many as possible of our noble colleagues.

However, I am afraid that, in spite of the extremely urbane and attractive way in which the noble and learned Lord supported his noble friend, I cannot offer much comfort over this. As the noble Baroness pointed out, there are about 100,000 maintenance orders made in the divorce county courts which are subsequently registered in magistrates' courts, and one only has to consider the amount of work which that would involve on the part of staff to realise how difficult it would be.

The amendment provides that the variation shall apply to the retail price index—that is, of course, an average figure as regards any individual because none of us corresponds with the index—and that it shall take effect on each anniversary of the making of the order. Therefore, the effect of that is that in every one of those cases, on the anniversary of the making of 100,000 orders the magistrates' clerk would have to recalculate the amount of the particular order which had taken place on the anniversary of that day and then I suppose send notice of it to the payer; in the meantime—despite what the noble Baroness seems to have thought—computerisation would not assist in other orders not registered in the magistrates' courts, because in those cases the order is dealt with and enforced only by the parties. The recipient therefore would have to calculate and remind the payer—that is, the ex-husband—of the amount he must add to the payments on the anniversary of the making of the order in question. My mind at least boggles at the thought of the paper work which would emerge from this particular operation.

Of course, that is only the beginning of the trouble, because one then has to ask whether the noble Baroness is reasonably right in her prognostication that this would actually stop the number of applications for variation by the courts. I think that it would multiply it by about 100,000 per cent. None of our cases corresponds with the retail price index. The husband might have had promotion, demotion or unemployment; the wife might have had an increase in income; two of the children of the first marriage might have become of age; there may have been three children of the second marriage who had come into being—or six, if one reads the newspapers day by day. The number of applications for variation upwards or downwards would, I think, multiply absolutely exponentially. I simply cannot accept this as a means of saving money on legal aid or of reducing the amount of the burden of time imposed upon the courts.

I am told that the wife might wish to vary an order upwards; but it should be noted that even in times of high inflation an application for variation is quite likely to result in what, in real terms, is a decrease rather than an increase. This appears to have been established by Professor McGregor, as I think he then was, and Dr. Colin Gibson in their research for the Finer Committee on one person families. The whole effect therefore is that the principle upon which this amendment is based is an ineffective principle. One is well able to see that when circumstances change, either as a result of inflation or individual circumstances, either party to a maintenance order should be able to apply to the court for variation. This I objected to in its rather less refined form on Committee as a bed of Procrustes which bore no relation to the needs, requirements or the justice either of the payment or the recipient, and I can only say in its cruder form as it has been reproduced on Report at the last moment, I find it even less attractive.

Baroness Lockwood

My Lords, I am glad the amendment has thrown light on one situation even if it has not thrown light on the subject of the amendment itself. I must apologise to the noble and learned Lords, the Lord Chancellor and Lord Simon of Glaisdale, for the late submission of the amendment; it was due to a misunderstanding arising from the submission of the previous amendment, and certain subsections have not been put in for amendment. I apologise and I understand that it may have caused confusion.

I accept the point made by the noble and learned Lord. Lord Simon of Glaisdale, that in a highly inflationary situation this would be even more desirable than at the present time, but even in the deflationary situation in which we find ourselves today we do have a 5—plus per cent. increase in prices, and the intention behind the amendment was to build into the system a compensation for that increase in price; a compensation based on the assumption that the award had been given in accordance with the income of the spouse who was paying the maintenance award, and in accordance with the needs of the spouse who was receiving it. Even in the present deflationary economic situation therefore, there is this rise in prices which creates great concern.

I regret the fact that the noble and learned Lord the Lord Chancellor feels that he cannot look any more kindly on the previous amendment than he could on the present one. I cannot help but feel his assessment that applications to the court for variations would multiply 100,000 per cent. is a great exaggeration, perhaps due to the lateness of the hour. The fact is that there are very real difficulties for people who are caught up in price increases. I accept that there are other reasons and other causes—as the noble and learned Lord the Lord Chancellor has outlined—why people should apply for a variation in the order; but I think that this amendment would have the effect of cutting out some of the routine applications which come before the courts, and more of which would come before the courts if the recipients of the payments could only summon up their courage in order to apply for a variation.

At this late hour I will not press the amendment to a Division but regretfully ask leave of the House to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 10B not moved.]

Clause 8 [Orders for financial relief made by magistrates' courts in matrimonial proceedings]:

[Amendment No. 10C not moved.]

The Lord Chancellor

My Lords, may I say in advance that all the Government amendments are either technical or drafting. I am willing to go at very great length into all of them, but I shall try not to unless I am pressed.

10.21 p.m.

The Lord Chancellor moved Amendment No. 11:

After Clause 21 insert the following new clause:

("Recovery of maintenance in magistrates' courts after overseas divorce etc.

Extension of s. 28A of Maintenance Orders (Reciprocal Enforcement) Act 1972.

.—(1) Section 28A of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (complaint by former spouse in convention country for recovery in England and Wales of maintenance from other spouse) shall have effect with the following amendments.

(2) For subsection (1) there shall be substituted the following subsection— (1) Where on an application under section 27(1) of this Act for the recovery of maintenance from a person who is residing in England and Wales—

1. (a) that person is a former spouse of the applicant in a convention country who is seeking to recover maintenance, and
220
2. (b) the marriage between the applicant and the former spouse has been dissolved or annulled in a country or territory outside the United Kingdom by a divorce or annulment which is recognised as valid by the law of England and Wales, and
3. (c) an order for the payment of maintenance for the benefit of the applicant or a child of the family has, by reason of the divorce or annulment, been made by a court in a convention country, and
4. (d) in a case where the order for the payment of maintenance was made by a court of a different country from that in which the divorce or annulment was obtained, either the applicant or his or her former spouse was resident in the convention country whose court made the maintenance order at the time the application for that order was made,

the application shall, notwithstanding that the marriage has been dissolved or annulled, be treated as a complaint for an order under section 2 of the Domestic Proceedings and Magistrates' Courts Act 1978, and the provisions of this section shall have effect.

(3) For subsection (4) there shall be substituted the following subsection— (4) A divorce or annulment obtained in a country or territory outside the United Kingdom shall be presumed for the purposes of this section to be one the validity of which is recognised by the law of England and Wales, unless the contrary is proved by the defendant.

(4) Subsection (5) shall be omitted.")

The noble and learned Lord said: My Lords, this is a technical amendment which can be seen as consequential on the provisions in Part III of the Bill. What it purports to do is to enable the international arrangements for the recovery of maintenance to extend to the beneficiary of a maintenance order made under Part III following an overseas divorce. It is obviously desirable that a woman who obtains such an order should, so far as possible, be in no different a position from the beneficiary of any other type of maintenance order. Thus, there are provisions in the schedule to the Bill which facilitate the enforcement of a Part III order in the other law districts of the United Kingdom. Equally, we want to ensure that women with Part III orders can take advantage of the international machinery for maintenance recovery where the payer lives in or moves to another country.

The United Kingdom legislation which gives effect to our international obligation under various conventions and bilateral arrangements is the Maintenance Orders (Reciprocal Enforcement) Act 1972. In fact, that Act requires no amendment to enable a woman to send a claim for maintenance abroad based on a Part III order. In practice however, because the international arrangements are based on reciprocity, such a claim is unlikely to succeed unless an equivalent order made abroad is acceptable as a basis for proceedings against a payer in this country. This is what this amendment achieves in relation to England and Wales. Similar amendments, Nos. 16 and 23, make provision in relation to Scotland and Northern Ireland. I beg to move.

On Question, amendment agreed to.

Clause 23 [Circumstances in which a Scottish court may entertain application for financial provision]:

Lord Mackay of Clashfern moved Amendment No. 12:

Page 21, line 23, at end insert— (" ; and (c) where the court is the sheriff court, either—

1. (i) one of the parties was, on the date when the application was made, habitually resident in the sheriffdom; or
2. (ii) paragraph (b)(iii) above is satisfied in respect of property wholly or partially within the sheriffdom.")

The noble and learned Lord said: My Lords, this amendment clarifies the requirement which must be satisfied before any particular sheriff court in Scotland has jurisdiction to entertain an action for financial provision under the clause. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 13.

Page 21, line 31, leave out ("the court") and insert ("a court in Scotland")

The noble and learned Lord said: My Lords, this is a minor and technical amendment which improves the provision made by Clause 23 for the jurisdiction of the sheriff court. I beg to move.

On Question, amendment agreed to.

Clause 25 [Interpretation of Part IV]:

Lord Mackay of Clashfern moved Amendments Nos. 14 and 15:

Page 23, line 7, after ("In") insert ("the foregoing provisions of")

Page 23, line 31, after ("in") insert ("the foregoing provisions of")

The noble and learned Lord said: My Lords, Amendments Nos. 14 and 15 are paving amendments for Amendment No. 16. I beg to move.

On Question, amendments agreed to.

Lord Mackay of Clashfern moved Amendment No. 16:

After Clause 25, insert the following new clause:

("Extension of s. 31 of Maintenance Orders (Reciprocal Enforcement) Act 1972.

(" .—(1) Section 31(4) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (recovery of maintenance in Scotland from former spouse on order made in convention country) shall have effect with the following amendments.

(2) In paragraph (i), for the words "granted in a convention country" there shall be substituted the words "obtained in a country or territory outside the United Kingdom".

(3) For paragraph (ii) there shall be substituted the following paragraphs— (ii) an order for the payment of maintenance for the benefit of the applicant as a divorced person has, in or by reason of, or subsequent to, the divorce proceedings, been made by a court in a convention country; (iia) in a case where the order mentioned in paragraph (ii) above was made by a court of a different country from that in which the divorce was obtained, either the applicant or the said former spouse was resident in that different country at the time the application for the order so mentioned was made; and".")

The noble and learned Lord said: My Lords, Amendment No. 16 is the equivalent for Scotland to Amendment No. 11, which my noble and learned friend the Lord Chancellor has already moved. I beg to move.

On Question, amendment agreed to.

Clause 31 [Directions as to distribution and transfer of family business and proceedings]:

Lord Elwyn-Jones moved Amendment No. 17:

Leave out Clause 31.

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 18 and 19: Leave out Clause 32. Leave out Clause 33.

These amendments to leave out Clauses 31, 32 and 33 are clearly probing amendments to enable the House once more to give consideration to what we submit is the imperative need for the family court.

At this late hour it would not be beneficial to traverse once again the case for and the need for the family court, which is fully supported in very many responsible quarters. The Law Society in particular, with its long experience of the involvement of the courts in family proceedings, has urged strongly the early introduction of a family court, as have many other interested bodies and persons. What we really hope for is an indication from the noble and learned Lord the Lord Chancellor that a fair wind shall be given to further examination of the prospects for a family court. We had the distinguished early report in this field which I think occurred, I am bound to say, during my term of office in the previous Administration. The Lord Chancellor was apparently described as a "family courts' man" at some stage. No doubt, he is other people's man as well as a family courts' man.

It would be very helpful if he could give some indication of the extent to which continuing consideration is being given by the Government to the need to eliminate some of the multiplicity of tribunals dealing with the matters contained in the Bill. If we could get some indication from the noble and learned Lord of that kind of interest and concern, I venture to think that this would be very helpful and well received.

The Lord Chancellor

My Lords, I think I can respond in, at any rate, a friendly spirit to the noble and learned Lord. There is a sense in which I am a family courts' man, but it is not Government policy at the moment and therefore I cannot do more than express a certain friendly interest. When I was first faced with this Bill I recognised that there were three stages, each independent of the other but which could be followed. The original plan which I had was the more ambitious one but, intermediate between the full family court system and the status quo, was to try to amalgamate the Family Division jurisdiction in this field with the county court jurisdiction in this field. I still favour that, but the difficulties of a practical nature exceeded the advantages and I doubt whether, if I had pursued that indefinitely, this Part of the Bill would have seen the light of day at all; so that we would have been worse off than we are.

What I ultimately decided to do—and I am still persuaded that I am right, because the thing is intrinsically desirable in itself and much easier to perform in practice—was to try to increase the degree of transferability between the county court and the High Court. That is what this Bill at the moment proceeds to do, and this is what I contend to be a decision of a practical nature at the present time. Obviously beyond the intermediate stage there is a prospect of a family court which would involve, of course, amalgamation and affiliation, the magistrates' courts jurisdiction and other things, which I think is in the more distant future and which presents various kinds of difficulty.

I appreciate that many noble Lords have expressed regret at the absence from this Bill of a more radical provision concerning the amalgamation of the various jurisdictions. I have even read the Law Society's recent memorandum and comments which follow that kind of line. I wish that I could add more than I was able to do on the subject when we debated this matter before Christmas at the Committee stage, but I explained then, and I repeat now, that I agree with my right honourable friend the Home Secretary that the concept of the family court should be re-examined, beginning with the detailed study of the resource implications of several possible models. Work will shortly be put in hand to assess the cost, in financial and other resources, of several models for a family court, with a view to establishing whether a family court, as such, is feasible.

The provisions in Part V of this Bill represent a first, but important if undramatic, step towards a more rationalised approach to the distribution of family business, with the possibility of a more radical revision once these amendments have been made. As I have said, what I have done in this Bill is a deliberate choice of my own. Half a loaf or a quarter of a loaf is better than no bread, and what I have done certainly will not prejudice any further steps which either I or my successors may make. But I do not think that we can go further without more information and a clearer understanding of the implications of establishing a unified family court.

There is more than one way in which such a court could be established, as a study of the Finer Committee Report shows; and it will be necessary to explore different possibilities. Apart from questions about accommodation and staffing requirements, and the size and composition of the Bench which need to be answered, consideration must be given to the correct avenue of appeals and the implications for legal aid expenditure which would need to be looked at carefully. Many of these questions have never been thoroughly examined before, and what my right honourable friend and I intend is to embark upon a realistic assessment of the facts and of the possibilities and implications as the essential basis for sensible decisions.

I told the House in Committee—and I have already said it again now—that I am not hostile to the conception of family courts. I am quite sure that they could not find a place in this Bill, even if proposals were ready to be produced like the proverbial rabbit out of the proverbial hat. I am also sure that I have made the right choice, even in not doing what I would have preferred to do; namely, to amalgamate the High Court and the county court jurisdictions, which was the second of the two options. Transferability is as far as we can go for the moment; but I am quite sure that this will result in the end in quicker progress later on. So perhaps the noble and learned Lord will be as generous as he sometimes is to me in realising that my intentions are good, even if my achievement is modest.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord for what he has said and I am very happy now that we put down these probing amendments, so that we may know that there are active steps, at least, for further examination of these proposals. I can assure the noble and learned Lord that he will be under a great deal of pressure about this from various quarters. A good deal of water has flowed down the Thames since the Finer Report and there is impatience from a great many quarters. I ought to speak with suitable modesty about this, because, once upon a time, I might myself have done more about it. But it is too late for confessions. But, speaking seriously, it is a serious matter. Other jurisdictions in other countries have functioned with family courts. We have struggled very slowly from our ancient customs of the Probate, Divorce and Admiralty Division, and all the old stories about whoever it was who launched a thousand ships. It took us a very long time to get out of that régime and we have not fully left it yet. So I hope that the noble and learned Lord's intentions will be fulfilled with new enthusiasm. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Transfer of family proceedings from High Court to county court]:

[Amendment No. 18 not moved.]

Clause 33 [Transfer of family proceedings to High Court from county court]:

[Amendment No. 19 not moved.]

Clause 34 [Family proceedings rules]:

10.34 p.m.

The Lord Chancellor moved Amendment No. 20:

Page 26, line 29, at beginning insert ("Subject to subsection (1A) below,")

The noble and learned Lord said: My Lords, the purpose of this amendment, which is a paving amendment, is to remove the adoption rules and the probate rules from the ambit of the new family proceedings rules created by Clause 34. The amendment makes it clear that the adoption rules and the probate rules do not fall within the ambit of the new Family Proceedings Rule Committee, which will be the successor body to the Matrimonial Causes Rule Committee. The adoption rules are presently made by me alone. The probate rules are made by the President of the Family Division with my concurrence. Given the special and self-contained nature of both these sets of rules, I think it preferable that the present situation should continue. Of course, when making these rules, I will continue to consult with all interested parties. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 21:

Page 26, line 43, at end insert— ("(1A) Subsection (1) above is without prejudice to the powers of the following authorities to make rules in respect of the matters referred to below and rules in respect of those matters shall continue to be made by those authorities and shall not be made by the authority constituted by subsection (1) above. The rules and rule-making authorities are—

1. (a) adoption rules made by the Lord Chancellor under section 9(3) of the Adoption Act 1958, section 12(1) of the Adoption Act 1968 or section 66(1) of the Adoption Act 1976;
2. (b) probate rules made by the President of the Family Division with the concurrence of the Lord Chancellor under section 127 of the Supreme Court Act 1981.")

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 36 [County court proceedings in principal registry of Family Division]:

The Lord Chancellor moved Amendment No. 2:

Page 28, line 6, leave out ("or in a county court respectively")

The noble and learned Lord said: My Lords, this amendment will prevent confusion arising as to the position of the Principal Registry of the Family Division. Clause 36 deals with the jurisdiction of the Principal Registry and the occasions when it can act as a county court. At present it implies that there are some family proceedings which may be heard in a county court and not in a divorce county court. This is indeed so, but the purpose of subsection (3) of Clause 36 is to equate the Principal Registry to a divorce county court so that when it is acting as such it can do anything that such a court can do. The added reference to a county court pure and simple is therefore unnecessary and can be removed. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 23:

Before Clause 38, insert the following new clause:

("Extension of s. 29A of Maintenance Orders (Reciprocal Enforcement) Act 1972. 1972 c. 18.

.—(1) Section 29A of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (complaint by former spouse in convention country for recovery in Northern Ireland of maintenance from other spouse) shall have effect with the following amendments.

(2) For subsection (1) there shall be substituted the following subsection— (1) Where on an application under section 27(1) of this Act for the recovery of maintenance from a person who is residing in Northern Ireland—

1. (a) that person is a former spouse of the applicant in a convention country who is seeking to recover maintenance, and
2. (b) the marriage between the applicant and the former spouse has been dissolved or annulled in a country or territory outside the United Kingdom by a divorce or annulment which is recognised as valid by the law of Northern Ireland, and
226
3. (c) an order for the payment of maintenance for the benefit of the applicant or a child of the family has, by reason of the divorce or annulment, been made by a court in a convention country, and
4. (d) in a case where the order for the payment of maintenance was made by a court of a different country from that in which the divorce or annulment was obtained, either the applicant or his or her former spouse was resident in the convention country whose court made the maintenance order at the time the application for that order was made.

the application shall, notwithstanding that the marriage has been dissolved or annulled, be treated as a complaint for an order under Article 4 of the Domestic Proceedings (Northern Ireland) Order 1980, and the provisions of this section shall have effect.

(3) For subsection (4) there shall be substituted the following subsection— (4) A divorce or annulment obtained in a country or territory outside the United Kingdom shall be presumed for the purposes of this section to be one the validity of which is recognised by the law of Northern Ireland, unless the contrary is proved by the defendant.

(4) Subsection (5) shall be omitted.")

The noble and learned Lord said: My Lords, Amendment No. 23 inserts a new clause into the Bill which amends Section 29A of the Maintenance Orders (Reciprocal Enforcement) Act 1972. The amendment is entirely analogous to Amendment No. 11 and, in effect, does for Northern Ireland, by way of an amendment to Section 29A of the Maintenance Orders (Reciprocal Enforcement) Act 1972, what Amendment No. 11 does for England and Wales by way of amending the equivalent provision—that is, Section 28A of the 1972 Act.

The amendment makes it possible for a person who has been awarded maintenance in a country which is a party to the United Nations convention on the recovery abroad of maintenance following a divorce in some third country to bring proceedings in Northern Ireland under the 1972 Act for the recovery of maintenance. I beg to move.

On Question, amendment agreed to.

Clauese 39 [Commencement]:

The Lord Chancellor moved Amendments Nos. 24 and 25:

Page 29, line 30, after ("V") insert ("section (Extension of s. 29A of Maintenance Orders (Reciprocal Enforcement) Act 1972) above")

Clause 40 [Short title and extent]:

Page 29, line 39, leave out ("and Part IV extends to Scotland only") and insert (", Part IV extends to Scotland only and section (Extension of s. 29A of Maintenance Orders (Reciprocal Enforcement) Act 1972)) above extends to Northern Ireland only.")

The noble and learned Lord said: My Lords, Amendments Nos. 24 and 25, which it will be for the convenience of the House to take together, are both consequential upon the new Clause 37A. The amendment to Clause 39 will enable the Lord Chancellor to bring the new Clause 37A into effect when the necessary changes have been made to the Northern Ireland Magistrates' Courts Rules. The amendment to Clause 40 ensures that the new Clause 37A takes effect only in Northern Ireland. Section 29A of the Maintenance Orders (Reciprocal Enforcement) Act 1972, which Clause 37A will amend, applies to Northern Ireland alone, and it follows that the amending provision must similarly apply only in Northern Ireland. I beg to move Amendments Nos. 24 and 25.

On Question, amendments agreed to.

Schedule 1 [Minor and consequential amendments]:

The Lord Chancellor moved Amendment No. 26:

Page 31, line 26, at end insert—

("Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18)

. In section 28A(3)(c) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, for the words "section 3(1)" there shall be substituted the words "section 3(2) and (3) ".")

The noble and learned Lord said: My Lords, this is essentially a drafting amendment which is consequential on Clause 8 of the Bill. Clause 8 substitutes a new Section 3 in the Domestic Proceedings and Magistrates' Courts Act 1978 and references to that section in the Maintenance Orders (Reciprocal Enforcement) Act 1972 need to be revised accordingly. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 27:

Page 32, line 15, at end insert— (" .In section 45(2) of that Act for the words "county court rules" there shall be substituted the words "rules of court".")

The noble and learned Lord said: My Lords, this is a consequential amendment to Clause 34. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 28:

Page 32, line 47, at end insert—

("Children Act 1975 (c. 72)

. In section 100 of the Children Act 1975— (a) in subsection (2)(c) for the words "section 102 of the County Courts Act 1959" there shall be substituted the words "section 9(3) of the 1958 Act or section 34 of the Matrimonial and Family Proceedings Act 1984"; and (b) alter subsection (9) there shall be inserted the following subsection— (10) Any court to which the proceedings on an application are transferred under any enactment is, as regards the transferred proceedings, an authorised court if it is not an authorised court under the preceding provisions of this section.

Adoption Act 1976 (c. 36)

. In section 62 of the Adoption Act 1976— (a) in subsection (2)(c) for the words "section 102 of the County Courts Act 1959" there shall be substituted the words "section 66(1) of this Act:" and (b) after subsection (6) there shall be inserted the following subsection— (7) Any court to which the proceedings on an application are transferred under any enactment is, as regards the transferred proceedings, an authorised court if it is not an authorised court under the preceding provisions of this section.".")

The noble and learned Lord said: My Lords, this amendment ensures that a county court to which a case is transferred from the High Court is an authorised court for the purposes of the Children Act 1975 and the Adoption Act 1976. Section 100 of the Children Act 1975 (and Section 62 of the Adoption Act 1976) define what are "authorised courts" for the purposes of adoption proceedings and in the case of the Children Act other proceedings under that Act.

Under Clause 32(3) of this Bill the High Court can transfer a case to any county court as it may direct. Clause 32(5) enables that county court, which may not normally have territorial jurisdiction, nevertheless to be authorised to hear and determine such a case. Therefore, we must include in Section 100(2) of the Children Act a reference to those county courts to which adoption proceedings have been transferred by the High Court under Clause 32 of the Bill. The amendment provides this.

I should add that the Adoption Act 1976 is the consolidation provision which has not yet been brought into force, pending the implementation of the whole of the Children Act. I beg to move.

On Question, amendment agreed to.

Baroness David moved Amendment No. 29:

Page 33, line 1, at end insert— (" . In section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978—

1. (a) in subsection (1) after the words "on the ground that" there shall be added the words "the applicant or";
2. (b) in subsections (1), (3) and (5) before the words "the respondent", wherever those words appear, there shall be added the words "the applicant or";
3. (c) in subsection (2) for the words "the applicant", wherever those words appear, there shall be substituted the words "the other party"; and
4. (d) in subsection (4) at the end there shall be added the words "save that an order made under this section may be backdated to the date of the application under section 2 of this Act.".")

The noble Baroness said: My Lords, I moved the last amendment at Committee stage. This is not quite the last amendment tonight, but at any rate your Lordships will have a change of voice after all this time. This is a small, tidying-up amendment to Section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978. It had quite a favourable response from the noble and learned Lord. He was kind enough to write a letter to me on 18th January, saying that an amendment along the same lines was being prepared, but that it might not be ready for Report stage.

We took the precaution of putting down this amendment so that we could have an assurance at Report stage, and I hope that is what we shall have. I beg to move.

The Lord Chancellor

My Lords, I give the noble Baroness that assurance. I had hoped to get something done for Report stage. If she will withdraw this amendment, I can give the noble Baroness an assurance that a Government amendment to give effect to her proposal will be put down at Third Reading.

Lord Elwyn-Jones

My Lords, I should like to express the thanks of us all to my noble friends Lady David and Lady Lockwood for standing the pace of the evening and for being with us to the very end. We are nearly at the very end, although I may well say a few words in a moment about the durability of the noble and learned Lord—but he still has some burdensome tasks to perform, because I understand that a difficult amendment is to follow! I do wish to express my sincere thanks—in particular to my noble friend Lady Lockwood; about that there never has been and never will be any doubt whatsoever.

Baroness David

My Lords, I thank the noble and learned Lord the Lord Chancellor for his assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Repeals]:

The Lord Chancellor moved Amendment No. 30:

Page 35, line 11, column 3, at beginning insert ("Section 45(3).")

The noble and learned Lord said: My Lords, this amendment provides for the repeal of Section 45(3) of the 1973 Act. That section deals with the transfer of applications for legitimacy decrees, and so on, from the county court to the High Court, and will no longer he required when transfer is dealt with under Part V of the Bill. I beg to move.

Lord Elwyn-Jones

My Lords, there is no opposition to this radical amendment! But I believe it would be wrong of me to let a long night pass without expressing the gratitude of the whole House to the noble and learned Lord for having borne the heat and burden of the day almost single-handed for the Government side.

I confess that we are somewhat disappointed that there have been no concessions by the Government on some of the amendments which have been moved, but there have been undertakings and meetings of the way on others. We shall consider this Bill further in due course, but in the meantime I repeat our gratitude to the noble and learned Lord for giving his assistance and, if I may say so, for staying the course so manfully.

Lord Denham

My Lords, I wonder whether, with the indulgence of the House, I may say a brief word at this point. A Chief Whip's lot is never a happy one; he has to get the business through in the time, and I am afraid that my life consists entirely of blustering and then apologising afterwards. I should like to thank the whole House, the noble and learned Lord, Lord Simon, on the Cross-Benches, noble Lords opposite, the noble Lord on the Alliance Benches, the noble Baroness who is meekly sitting further to the rear than her great talents merit, for getting through this business, and also my noble and learned friend who has, I know, put so much effort into this Bill, and my noble friends behind me who have stayed. The time is now reaching—in fact has reached—a quarter to eleven.

On Question, amendment agreed to.

House adjourned at thirteen minutes before eleven o'clock.