Child Abduction Bill

HL Deb 19 June 1984 vol 453 cc222-36

7.43 p.m.

Baroness Faithfull

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Faithfull.)

On Question, Motion agreed to.

House in Committee accordingly.

[The VISCOUNT SIMON in the Chair.]

Clause 1 [Offence of abduction of child by parent etc.]:

Lord Mishcon moved Amendment No. 1: Page 1, line 8, leave out ("sixteen") and insert ("fourteen").

The noble Lord said: It may be for the convenience of the Committee if I make two things abundantly clear. The first one is—and I speak personally but I believe I have all my friends with me, in fact—this is a good and necessary Bill. Therefore it is our hope that the Bill will receive parliamentary sanction in both Houses as soon as possible. That leads me automatically to the next thing which I have to say. It is this: although all the amendments that I am going to move are, in my view, sensible amendments and ones which would better the Bill, it is not my intention at any time, because of the first point I made, to divide the Committee because I believe that might lead to an unacceptable conclusion for this Bill; namely, that it would take time for the amendment to be considered in another place, and that might in fact defeat the early passing of this necessary Bill.

I hope that will not in any way prevent your Lordships, when asked if you are content with the amendment, from giving strong vocal expression to your views, because that at least might impress the Government Benches and the sponsor of this Bill and sound another place to see whether the amendment is not in fact a good one. With the permission of the Committee, in moving Amendment No. 1, I propose to speak to Amendments Nos. 4, 5 and 7.

Amendment No. 4: Page 3, line 9, leave out ("sixteen") and insert ("fourteen").

Amendment No. 5: Page 3, line 17, leave out ("sixteen") and insert ("fourteen").

Amendment No. 7: Page 4, line 4, leave out ("sixteen") and insert ("fourteen").

Your Lordships will see that I am on the point of the age which should be the governing factor of this Bill, and of course I am referring to the age of the child concerned. In my view, the age which has been selected in this Bill is quite illogical. It is the age of 16, and I will say why I think it is illogical in a moment, if I may. It also happens to be completely contrary to the recommendations of the Criminal Law Revision Committee in their 14th Report on offences against the person, and this Bill is supposed, in the main, to follow the recommendations of that committee.

That committee consisted of a number of experienced people who sat and deliberated upon all the matters mentioned in their report, and certainly on the question of child abduction; and it does not seem to be very sensible that when a Committee expressly gives its attention to important matters such as the question of age their recommendations should in fact be over-ruled. I will refer, if I may to page 102 of their report. It is Cmnd. 7844, and I am reading from paragraph 239: We consider that an age limit of 14 is appropriate for these offences. If a person unlawfully detains a child above that age without the child's consent he may of course be charged with unlawful detention. If, however, a child over 14 consents to be taken away from his or her parents"— and (if I may say this in parenthesis) it is that matter that this Bill deals with— we do not consider that any offence should be committed, unless the taking is for unlawful sexual purposes. Practical reasons have led us to fix the age at 14 since parental control over that age may be difficult or non-existent". The experienced members of the committee, after considering the matter, and with their knowledge of what life is like in the average family, came to the conclusion that it would be wrong to make the age above 18. I could have understood it if those responsible for this Bill had said: "We don't think we can follow the line recommended by the committee because after all children in care, children who are being dealt with in the Family Division where there are custody orders made, care and control orders made and maintenance orders made, in both cases go up to the age of 18."

So I could have understood it if those connected with this Bill had decided to use the age of 18. They have used the judgment of Solomon upon this Bill, but I do not think with the wisdom that Solomon was famed for, because they have said, "No" to 14, as recommended by the committee, "No" to 18, which might have been the logical alternative, and they have dived in between and made the age 16. That seems to me to be a not terribly clever thing to have done. I ought to mention, because I want to make it thoroughly clear for those interested in the law in Scotland. that I have endeavoured in the amendments to which I am speaking to make the part of this Bill which deals with Scotland consistent and therefore, again, I have sought in the amendments to alter the age from 16 to 14. I beg to move.

Baroness Faithfull

I fully understand the noble Lord's reasoning in tabling this amendment, together with Amendments Nos. 4, 5 and 7, which would lower the age of a child in respect of whom the offence of abduction under this Bill could be committed. This amendment seeks to bring the age of the child into line with the recommendations of the Criminal Law Revision Committee, as the noble Lord, Lord Mishcon, has explained, on which much of the Bill is founded.

Perhaps I may explain why on further consideration 16 was thought to be the right age to which protection from abduction should extend. First, in addition to implementing the Criminal Law Revision Committee's views, the Bill is designed to fill any gap in the law which might exist. We must be confident that this Bill makes it clear beyond peradventure that it is criminal for a parent to take a child away unilaterally until that child is of a responsible age. Any discussion of what is a responsible age must of course be arbitrary. I was struck by the observation of the noble Lord, Lord Mishcon, at Second Reading and again today, that 18 years is the age at which care and custody orders cease to have effect. I have thought about whether the age limit in the Bill should be raised rather than lowered, but I believe that 16 is right for this Bill. A 16 year-old can marry and take certain decisions about sexual relations. He or she can leave school and live on his own income, and more to the point he can express his own will and thoughts with clarity.

Of course, logic is most important, but it does not always work with people. I speak now as one who has been a chidren's officer and a director of social services, and who stood in loco parentis to children who were committed to the care of the local authority until they were 18. In my capacity as a children's officer and a director of social services, I also dealt with the casework in cases of adoption, divorce, and custody being given to one parent.

Adolescence is a strange time in a young person's life, and in my experience although children are now much older at a younger age than they used to be, nevertheless there is a very big difference in dealing with children of 14 and 16. The age when they have left school, when they are earning, when they are seeking to be independent of their parents and yet dependent on their parents, is a very difficult one: and in my experience—with a few exceptions—that difficult age is reached not at 14 but at 16. That is the age when young people are seeking to be independent and are rebelling against their parents. It seems to me we should be putting at risk a number of children of 14 who cannot easily stand up for themselves; but at 16 they know that they are independent of their parents in several ways. I agree with the noble Lord, Lord Mishcon, that if we were going to be logical we would recommend 18. But if we are taking into account the adolescent stage of young people, I believe that 16 is the right age rather than 14, although I know that there might be some differences.

There is a second point, which is that when young people have been brought up by one parent and have been in constant touch—as indeed they should be—with the other parent, then, when they are seeking to be independent, particularly if they have had a deprived and difficult early childhood, they rebel against the parent who has been bringing them up. At that stage, I used to find that they very often wanted to go to the other parent. The grass was always greener in the other field. I found that, very often, they would go to the other parent and then after a while would return to the parent who had been bringing them up. But I did not find that this age of rebellion came at 14. It was much more likely to come at 16 when they were independent, earning their own living and permitted to live away from their parents. So I would strongly recommend 16, while understanding the reasons which the noble Lord, Lord Mishcon, has given for saying 18, and I submit that 14 is too young.

Lord Meston:

I am afraid that I, too, am not able to support the amendment. All age limits are arbitrary, but 14 is too low. This is a good Bill and to reduce the age to 14 would diminish it. Children do not cease to need protection at the age of 14, and they do not cease to be entitled to protection at the age 14. Not all children between 14 and 16 are sophisticated, and one must remember that Clause 1 is aimed at international kidnapping which can have irrevocable and traumatic effects. An offender under Clause 1 may well be in breach of a custody order or a care order which lasts until 18; but this does not stop the aggrieved parent from legitimately applying to vary a court order by proper processes of law, in which case the child's wishes would properly be taken into account. It does, however, prevent an aggrieved parent taking the law into his or her own hands.

Clause 2 also covers a very wide range of offences from the trivial to the most serious; for example, where a child might be abducted for the purposes of child prostitution or something of the sort. The second point is that in law—and I suggest in practice—parental responsibilities and discipline do not cease at 14, although sometimes one is tempted to wish that they ended much earlier. The other point is this. One has heard of illogicality. In fact, there is considerable consistency in the age of 16 with other statutes. There is no magic in consistency; indeed, I am glad to say that lawyers thrive on inconsistency. But one looks at the various purposes for which 16 is the magic age. It is the age of consent for medical treatment, and treatment of that kind, and it is the age of consent for sexual intercourse. It is the age limit under a number of statutes. When looking at my copy of Archbold today, I noticed that it is the age limit under Sections 1 and 3 of the Children and Young Persons Act 1933 and under Sections 6, 26 and 28 of the Sexual Offences Act. And 16 is the school leaving age. Fourteen was the age limit under the old child stealing offence in the Offences against the Person Act. To preserve the 14-year-old limit would not be a step forward; it would be a step backwards to the 19th century. One has to remember also that there is a grey area in cases involving 14 to 16 year-olds. I suggest that that grey area would be more than adequately covered by the discretion which this Bill invests in the Director of Public Prosecutions. Accordingly, I cannot support the amendments.

8.1 p.m.

The Lord Bishop of Norwich

Although I always listen with the greatest respect and attention to the noble Lord, Lord Mishcon, he has not won me this time. He often does and he often helpfully corrects me when I am wrong. But I am not with him on this amendment. I want to refer in particular to the words of the noble Baroness, Lady Faithfull: "adolescence is a strange time". Those of us who are parents will remember, if we are elderly parents and grandparents—as I am—that the age of 14 to 16 is a very turbulent time. It is a time when it seems that 14 to 16-year-olds grow up three times as fast as people of other ages. Therefore they do not understand themselves or know themselves quite so much as they think they do and as we may hope that they do. So on pure grounds of caution, compassion and care I should like to say that I have been swayed more by the noble Baroness, Lady Faithfull, than by the noble Lord, Lord Mishcon, both of whom I hold in the greatest respect.

Lord McGregor of Durris

I shall not take up the time of the Committee by rehearsing the arguments with which the amendment has already been opposed, because I support them all. If the noble Lord, Lord Mishcon, will forgive my saying so, the point that he made was a lawyer's point—cogent as such but not touching the reality or experience which I have had of children of that age. It should also be added to what has already been said that at the age of 14 there is a very wide difference in the degrees of maturity exhibited by children. And not only is there a wide difference in the range of maturities. The same child may differ very considerably from day to day. It seems to me that all the arguments point to selecting the age of 16 as the safe decision.

Lord Elton

With the greatest brevity and only for the sake of completeness, because we have an almost entirely complete set of arguments before us. I would just remind the noble Lord, Lord Mishcon, in case he has forgotten (although I do not suppose he has) that Article 4 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children says: The convention shall apply to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights. The convention shall cease to apply when the child attains the age of 16.". The noble Lord, Lord Mishcon, has now been dealt a full set of cards. I leave him to add them up.

Lord Mishcon

On this occasion the addition is not difficult. I am so glad that when I moved the amendment I announced to the Committee that I had no intention of dividing it. Therefore it enables me to retreat with some dignity, having listened to all the speeches which have been made in your Lordships' Committee. Apart from hearing the noble Baroness, Lady Faithfull, who always speaks with such experience and tolerance on matters of this kind, and the right reverend Prelate, who knows, without my having to embellish the remark, that he has my deepest respect for any view that he ever expresses, it was a great delight to hear the noble Lord, Lord Meston, again make a contribution to our proceedings. I can only say—there is no arrière-pensée behind this—that I wish we heard him more often, because he has obviously got such a contribution to make.

I can only, as I said, retire with some dignity—apart from not dividing the Committee—by making two points. First, at least I am in the good company of the right honourable Lord Justice Lawton, the right honourable Lord Justice Waller, Professor Sir Robert Cross—I shall not mention the names of all the eminent people who formed the committee which made this recommendation.

Lord Elton

I understand that Lord Justice Lawton was consulted about this change and agreed to it.

Lord Mishcon

It is within the ability of a great judge to change his mind. I was merely referring to his original opinion when I quoted him. My second point is that I believe it is absolutely right that we should have debated this matter. The Bill had a very short tenure in another place, for very good reasons. The age question was not, I believe, debated there—certainly not at any length. It is right that, having gone away from the recommendation of the committee, your Lordships' Committee, with its usual care—especially when it comes to the young and the under privileged—should have allowed me to put the point of view that I did in this amendment. In all the circumstances, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 2: Page 2, line 24, leave out from ("him") to end of line 31.

The noble Lord said: I believe that here I am on stronger ground. In moving Amendment No. 2, may I also, with the permission of the Committee, make it clear that something has gone wrong, either at my end or at the Public Bill Office end. I intend to take all the blame and to say that it must be at my end. I intend to move only Amendment No. 2. When Amendment No. 3 is called I shall say, "Not moved".

This amendment is important. Your Lordships will know of the defences that are provided for in the Bill. They are set out in Clause 1(5) on page 2. The first two sets of defences seem to be thoroughly reasonable: A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—

1. (a) He does it in the belief that the other person—
1. (i) has consented; or
2. (ii) would consent if he was aware of all the relevant circumstances; or
3. (b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him".

Then follows paragraph (c), which is a most extraordinary defence: or (c) the other person has unreasonably refused to consent". If we leave this paragraph in the Bill—I should be so interested if the noble Lord, Lord Meston, could make a contribution on this amendment, too—it means this: that any parent could say, "I don't think I am going to try to go further than this. I have asked the other parent. My former wife has said, 'No'. I think she has been thoroughly unreasonable in saying 'No', and I am going away with the child. If I am charged, I shall argue before the court, at great length, no doubt, that in my view my former spouse unreasonably refused to consent".

This means that on possibly every occasion when the provision is invoked, where there has been communication between the spouses, then the court of necessity must listen to a whole argument (unless it falls within the proviso in lines 26 to 31, which are obvious exceptions) as to whether the father or the mother who took the child away did so honestly believing that the other person was unreasonable.

It is not for the court to decide whether the other person was unreasonable; as I understand it, it would have to be the belief of the parent concerned that the other spouse was unreasonable in refusing consent. To me, this drives a coach and horses through the provisions of the Bill—quite apart from elongating the proceedings in court and making them thoroughly unpleasant because the whole question of a parent's reasonableness or unreasonableness will come into issue.

I believe that I have something rather important to say in this amendment. I hope that the sponsor of the Bill and the noble Lord the Minister, who I know is supporting this Bill on behalf of the Government, do not think that deleting (c), and all that follows from that, will affect the further passage of this Bill. Even so, I will not challenge their judgment because, as I have said already, I will not be dividing the Committee. But this is one of those occasions when I hope that the strength of the Committee's voice will have an effect if the amendment is not accepted. I beg to move.

8.13 p.m.

Baroness Faithfull

I can well understand the concern to which the amendment gives expression; concern about the impact of the Bill upon a family that has never had recourse to the courts in divorce or other proceedings and where children are not the subject of a custody or equivalent order. I hope that I can allay that concern by showing that the provisions of the Bill are intended to strike a balance in this kind of case such that Clause 1 will be effective without being too oppressive.

The primary purpose of Clause 1 is to prevent the permanent abduction of children abroad in "tug-of-love" cases. However, it makes no explicit concession for persons wishing to take their children abroad for a short visit—such as a package holiday or even a day trip to France, where there is no intention of leaving this country for good and depriving the parent left behind of all contact with the children or hope of recovering them. It is this kind of innocent travel arrangement which the defence in Clause 1(5)(c) is intended to cover.

It may be helpful if I set out the position in a little detail. In a case where a child is the subject of a custody order and one parent is refusing the other permission to take the child abroad on holiday, the parent with the holiday plans can and should go back to the court which made the order, for leave to make the proposed journey. The court's permission, if given, will override the other parent's views on the matter. But if the court's permission is not sought, or if it is sought and refused by the court, then it will not be open to the holidaymaker to rely on a defence of the other parent's unreasonable refusal.

Taking the same example of the holiday trip but applying it to the married couple, where there has been no family breakdown and no custody order, if one parent does not consent to the other parent's travel plans, there is deadlock between them. It is not practicable or reasonable to expect one or the other to go to court for a custody order when the only matter at issue between them concerns the foreign holiday. Indeed, they may not wish to take such a drastic step. It is this type of case where the parent may rely on the defence of unreasonable refusal to consent in subsection (5)(c). Without such a defence, even a day trip to France with the children taken without the approval of the other parent would be an offence. In these circumstances, it seems to me to be right that a parent should not have to face criminal proceedings, subject only to the exercise of the discretion of the Director of Public Prosecutions not to prosecute.

However, there will be other circumstances where something rather more than a package holiday is at stake. The noble Lord, Lord Mishcon, gave a good example on Second Reading and he explored the issue further today. It is the kind of case where the father, say, is posted abroad for a year as part of his job and wishes to take the children with him—but his wife disagrees. It is clearly not good enough for him to go away taking the children, and dismissing his wife's arguments out of hand.

One course of action open to the parents would be to obtain a custody order in respect of the children with a view to obtaining the court's ruling on the issue in dispute between them. However, the parties concerned may be reluctant to do this. Despite a major disagreement on what is undoubtedly a major decision in their family life, they may have no desire or intention to split up and may be loath to seek court intervention in the affairs to the extent that custody proceedings make inevitable. Indeed, a custody order giving custody to one or the other would aggravate the disagreement.

In these circumstances, it is open to them to make use of legislation already on the statute book, which provides machinery whereby parents can obtain a court decision on any particular matter in dispute between them affecting the welfare of their child. It is to be found in Section 1(3) of the Guardianship Act 1973. This reads: Where a minor's father and mother disagree on any question affecting his welfare, either of them may apply to the court for its direction, and (subject to subsection (4) below) the court may make such order regarding the matters in difference as it may think proper". Subsection (4) goes on specifically to preclude the court from making an order as to custody or access in these proceedings. Therefore, if the parents are unable to reach a compromise with regard to the foreign posting, there is this ready-made procedure for independent arbitration of their differences on the point. Having had recourse to the court under this procedure, however, it should be noted that it is not then open to the parent to claim the defence of the other party's unreasonable refusal to consent under subsection 5(c) of the Bill if he subsequently takes the children abroad in breach of the court's direction.

I hope that I have convinced your Lordships' Committee that the inclusion in the Bill of the defence found in subsection 5(c) is justifiable in that there will be cases where the criminal law should not bear heavily on family life—but equally, the existence of the defence will not allow cases to slip through the net which should be caught by it and where adequate remedies are available to assist parents to resolve their disputes so that one parent is not tempted to take unilateral action to the detriment of the other parent's position—and, even more important, to the detriment of the children's welfare.

Lord Mishcon

Before the noble Baroness sits down, and only to avoid my having to make this point later without giving her an opportunity to answer it, will the noble Baroness mind if I reflected out loud on the comments she has just made? I would have thought that what the noble Baroness has just said was an argument in favour of my amendment and not one against it. She has said that there is ample provision—and that is absolutely right—for a parent in certain circumstances, where there is a dispute and there have been no court order and no matrimonial proceedings, to go to the court and get a ruling. If that is so, why have this defence?—because this is an application that could always be made.

It will not be in the case of a holiday abroad that the Director of Public Prosecutions would ever authorise a prosecution because a holiday abroad means something short and the child will be brought back and will be caused no harm. The director will authorise a prosecution where there is the sort of case I mentioned at Second Reading and a father has said, "Look, I'm awfully sorry, I refuse to go to the court. There is no need to go to the court. I know my wife is being unreasonable, she is not coming with me to France, and she ought to. I have been given a job there and I am going to take our child. I'm going to rely upon this defence if she won't go to the court".

That strikes me as being bad for the child, bad for the parents, and bad for the court that has to hear the case and has to look at this Bill and find that it has to adjudicate on whether the other parent was unreasonable. I wonder whether the noble Baroness would care to deal with that argument before she sits down.

Lord Elton

I just want to put this reflection into the mind of the noble Lord, Lord Mishcon, in dealing with this matter, which I hope we can do swiftly. It arises from his original speech, because he is apparently under the impression that the defence is that one parent believes that the other person has acted unreasonably. But if he looks at subsection (5), he will find that the requirement that the belief should be in the mind of the parent is contained in only subsection (5)(a); it is not in subsection (5)(c). The defence there is that the other person has unreasonably refused to consent, and therefore the court will be deciding about that, and not about his state of mind.

Lord Mishcon

This is the Committee stage and therefore your Lordships are used to people bobbing up and down, which can be rather useful. I accept what the noble Lord the Minister has said. I used cautious words. I have forgotten whether I said that it was arguable that it was a question of belief, or it appeared possibly to be a question of belief. I still do not know how anybody can otherwise commit an offence, since criminal intention is obviously part and parcel of the commission of a criminal offence. If the person honestly believes that the other party unreasonably refused, and comes before the court and says so, then the court decides "Well, you may honestly have believed that, but we don't think that the other party did unreasonably refuse. Therefore you have committed a criminal offence, even though you honestly believed that the other party was unreasonable". From all practical points of view it will be a question of the genuineness of the honest, bona fide thought that the parent had that the other party was being unreasonable. I shall not detain the Committee any longer.

Lord Meston

It seems that this point derives from the definition of "abduction", which is taking without consent. If that is the definition of "abduction", then I would suggest it is sensible to add a defence of this nature where there is no order for custody to cover the pre-litigation snatch. That is not to say that a custody squabble should be transposed from the proper courts to the criminal courts, but it provides a defence for the parent who otherwise would be vulnerable to prosecution and conviction where the other party has unreasonably refused consent. In practice, where families have reached the stage of disharmony which has been described by various noble Lords, of course, there will already be a custody order of some sort, albeit an emergency order.

In introducing the concept of unreasonable refusal of consent, the Bill presents a concept well known to the law which can be well understood by a jury when properly directed. But it also sensibly provides that the defence is not available where the person removing the child is flouting some custody order and is taking the law into his or her own hands. Accordingly, I would suggest that the Bill ought to stand as it is.

Lord Elton

I wonder whether I may try to draw this question to a conclusion. It seems to me that my noble friend has put forward fairly strong arguments. But it also seems to me that in a case where a child is taken abroad by one parent without the consent of the other, if the conditions in paragraphs (a) or (b) are not satisfied, then the other parent who remains in England, let us say, would always be able to prove that his or her spouse had committed a criminal offence unless this defence was available to him or her. I am sure that that is not the intention of the noble Lord and I hope that he will read in Hansard the remarks which have been made. if he remains in doubt, perhaps he will remind us of his concerns at the next stage.

Baroness Faithfull

I wonder whether I may add one extra comment. The Bill must address the unilateral action of a parent in taking a child out of the country, but where the court judges on the facts that consent was unreasonably withheld, it is surely right that this should constitute a defence for the parent who has removed the child.

Lord Mishcon

I am much obliged, and in order to show my complete broadmindedness, may I again congratulate the noble Lord, Lord Meston, on his contribution, even though he happened to oppose the amendment that I was moving. I find it difficult to swallow a situation when a matter of this kind is going to be decided by a criminal court and jury and not even a family court. Nevertheless I am taking the hint from the noble Lord the Minister and at this stage I certainly would wish to withdraw the amendment, but I would always, of course, sit down before doing so if any other noble Lord wished to address the Committee. it appears that no other noble Lord, spiritual or otherwise, wishes to address the Committee and so I ask leave to withdraw.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Clause 2 [Offence of abduction of child by other persons]:

[Amendments Nos. 4 and 5 not moved.]

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4 [Penalties and prosecutions]:

Lord Mishcon moved Amendment No. 6: Page 3, line 38, leave out ("seven") and insert ("five").

The noble Lord said: The drawers of this Bill seem to have adopted a little bit of a perverse attitude from time to time in regard to the recommendations of the Criminal Law Revision Committee, as I mentioned on a previous amendment. Here we are dealing with the question of the penalty, I am looking at this moment at page 103 of the 14th report, to which I referred earlier, and for which I therefore do not have to give a full reference. On page 103, at paragraph 244, the committee recommends that we adhere to our provisional recommendation that abduction should be punishable with a maximum penalty of three years' imprisonment on conviction on indictment, and should be triable either way.

I now turn to page 105 of the report, and paragraph 251, which deals with the offence of unlawful detention. This is preceded by these words: The offences of false imprisonment. kidnapping. child stealing and abduction of an unmarried girl under 16 should be replaced by the following four offences". One of them is the offence of unlawful detention. In paragraph 251 the committee recommend that the offence should be triable either way and punishable with a maximum penalty of five years' imprisonment. But when you come to this Bill you find that the penalty is seven years' imprisonment. It is not a question this time of Solomon's judgment, of coming between the three and the five and making it four. It has gone up to seven. I cannot at the moment understand why it should. I have gone to the greater of those two and have made it five, and I move the amendment at this stage as a probing amendment to find out the reasoning behind the maximum sentence of seven instead of either three or five. I beg to move.

Baroness Faithfull

Once again I must acknowledge the careful and sensitive motive behind this amendment, which would reduce the maximum penalty for offences under this Bill from seven years to five years. The latter would preserve the power of arrest, which is vital to the proper enforcement of this measure and which would be lost if anything lower than five years were proposed. Perhaps I might explain why I do not think we would be wise to lower the penalties at all. This Bill replaces the old offence of child stealing with two offences based on the offence proposed by the Criminal Law Revision Committee and making a distinction between parental abduction and others, which I believe we all accept to be proper, so that the parents will not be brought further than is strictly necessary into the scope of a criminal offence in relation to actions upon their own children.

As regards abduction by non-parents, seven years is the present maximum in the 1861 Act. It was thought then to reflect properly the gravity with which society viewed child stealing. I should not like us to be seen to view the worst cases of such activity with any less gravity today. The Criminal Law Revision Committee Report looked at abduction as akin to kidnapping, but, where the child was willing to be taken away, as aggravated abduction, for which the committee recommended life imprisonment. I should add that my confidence in the penalty as drafted is enormously increased by the agreement of Lord Justice Lawton to the maximum seven years for both offences.

Lord Mishcon

I should like to pay my tribute once again to the Lord Justice for having the tolerance and breadth and openness of mind to have changed his view presumably as chairman of this very distinguished committee. I find with some regret, in spite of the fact that there were so many eminent lawyers and judges on this committee, that their recommendation has not been accepted. But I have indicated previously that I do not want this Bill to be interfered with in any way in regard to its passage through Parliament, and it would be quite wrong for me to take up any further time of the Committee on the question of sentence. Therefore, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Offence in Scotland of parent, etc. taking or sending child out of United Kingdom]:

[Amendment No. 7 not moved.]

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7 [Penalties and prosecutions.]:

8.33 p.m.

Lord Mishcon moved Amendment No. 8: Page 5, line 32, leave out ("three") and insert ("six")

The noble Lord said: May I, with the permission of the Committee, speak to Amendment No. 9 in moving this amendment? Amendment No. 9: Page 5, line 36, leave out from ("exceeding") to end of line and insert ("five years")

I have tried to show a consistency (or an inconsistency) as far as this Bill is concerned, because we now move over the Border and we are in Scotland. For some reason which for the moment escapes me there are different penalties in Scotland from those about which the noble Baroness was just speaking. If your Lordships look at Clause 7 of the Bill you will see that it reads: on summary conviction, to imprisonment for a term not exceeding three months", instead of six months; and, on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both". The noble Baroness and the noble Lord the Minister were so convincing in thinking that it should not be three and it should not be five, but that it should be seven: but if you happe0n to be fortunate enough to commit the offence over the Border, or you happen to be of Scottish nationality, then you are obviously entitled to a mitigated treatment and, therefore, you can come below the sentence that I was recommending in my amendment.

It was to produce consistency or some measure of logicality, even though that is supposed to be a quality mainly associated with lawyers and, therefore, obviously I do not want to claim it, since somebody said that it was really the province of a lawyer to be logical. As I have said, I move this for the sake of consistency. I shall be interested to learn, in any event, why there is this suggested difference in treatment. I beg to move.

Baroness Faithfull

I have some sympathy with the noble Lord, Lord Mishcon. These amendments seek to provide for uniformity in the maximum penalties available under the Bill among Scotland, England and Wales. Although I would agree that having the same maximum penalties for the same statutory offences north and south of the Border is desirable, I think there are good reasons for the differences which the Bill presently provides. Therefore, we cannot accept these two amendments.

Perhaps I might start by dealing with the second amendment first. It relates to the more serious offences, which will be prosecuted on indictment. The Bill presently provides the maximum penalty of two years' imprisonment in Scotland as compared with seven years in England and Wales, as we discussed earlier. I explained then why I thought it was right not to have different maxima in Clauses 1 and 2, but, in relation to Scotland, this Bill does not need to address abduction other than by parents; nor does it need to address the wider question of kidnapping, which the Daily judgment raised.

Your Lordships will know that the structure of Scots law is different from English law. This Bill must not seek to distort that structure, but only to ensure that there is no loophole between the two jurisdictions in a matter as important as this. The English penalty for Clause 1 is consistent with Clause 2 and with the child-stealing offence that it replaces; but it does not, and need not, fit the Scots scheme. For example, a maximum penalty of two years corresponds to the normal maximum penalty available in the sheriff court in Scotland, so that any case which requires to be tried on indictment can be taken there. This is appropriate as the sheriff court, in its civil capacity, is the court in Scotland which is empowered to hear divorce cases and to make orders relating to the custody of children. As it is orders of that sort which someone committing an offence under the Bill will be disregarding, it seems appropriate that any criminal case taken should be prosecuted there.

I fully understand that it would be a neater Bill if all the penalties were identical, but I think that, as drafted, the provisions make the measures able to work satisfactorily in both jurisdictions, and this is more important than contriving an artificial and uneasy fit.

The amendment also removes the reference to the possibility of a fine, as well as imprisonment, on conviction on indictment in Scotland. I think that noble Lords would agree that, while a fine instead of, or as well as, a sentence of imprisonment might not be very frequently imposed in these cases, it is right to give sentencing courts the maximum range of options so that they can arrive at the most appropriate sentence in any given case. To remove the option of a fine from Scottish courts considering these cases would be an unnecessary restriction of that discretion.

Noble Lords may point out, of course, that there is no comparable provision on the face of the Bill allowing a fine to be imposed in England and Wales instead of, or along with, imprisonment. But I am advised that under Section 30 of the Powers of Criminal Courts Act 1973 a Crown Court convicting someone on indictment of any offence may impose a fine in lieu of or in addition to dealing with him in any other way, such as by imposing a sentence of imprisonment. There is no exactly comparable provision for Scotland, and that is why explicit provision is needed on the face of this Bill to ensure that Scottish courts have this power also.

Let me now turn to the first of these amendments dealing with the maximum penalty on summary conviction. At the moment the Bill provides for Scotland a maximum period of imprisonment of three months or a fine of up to the statutory maximum, while in England and Wales the maximum period of imprisonment is six months. There are again two reasons for this distinction. The first is, as I have said, that the Scottish penalty does not relate to offences of abduction by strangers. Secondly, three months is the normal summary maximum in Scottish courts, and is usually exceeded only in relation to a second or subsequent offence inferring violence or dishonesty. It was, therefore, thought right that the normal summary maximum should apply in cases of this sort. Of course, any case which might attract or deserve a longer sentence of imprisonment can always be taken on indictment at the discretion of the prosecutor.

I hope that the explanations I have given of the reasons behind the two differences will be sufficient to persuade the noble Lord, Lord Mishcon, that he may withdraw his amendment.

The Earl of Caithness

I briefly add to the words of my noble friend that the penalty in Scotland under the common law for abduction by a third party, other than parents, is of course far greater than in England, because the High Court can go up to life imprisonment.

Lord Mishcon

Let me at once express my gratitude to the noble Baroness, Lady Faithfull, for teaching me something. It is not the first time that she has taught me and I hope it will not be the last. I was under the impression, obviously mistaken—and I am not a Scots lawyer—that the same powers existed in Scotland, as in England and in the rest of the United Kingdom, to impose by way of an alternative a fine instead of a term of imprisonment. I am grateful to her for having taught me that that is wrong.

I have listened with the greatest care to what the noble Baroness has said, and indeed to the contribution that has been made by the noble Earl the Minister. I do not admit—I hope that this will not seem ungracious—that I follow the logic or justice of what has been said, but, since the whole Bill is an important Bill, and, I repeat for the last time, a very necessary Bill, I do not intend to carry this matter even further tonight, and therefore ask the Committee's leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Clause 7 agreed to.

Remaining clauses and schedule agreed to.

House resumed: Bill reported without amendment.