§ 5.41 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a second time.
The object of the Bill is to enable the United Kingdom to ratify the Hague Convention on the Civil Aspects of Child Abduction and the European Convention on the Recognition and Enforcement of Custody Decisions. Not only within this country but internationally as well there has been growing concern about the increase in child abduction across frontiers. No doubt some of the reasons for this are unavoidable. They include the increase in the number of broken marriages, and they include improvements in travel facilities, particularly by air. But there are also jurisprudential causes, which can be removed. The courts of each country operate independently of each other, and therefore, without assistance from an 1249 international convention, a decision as to the custody of a child following the separation of its parents may not be enforced outside the country in which it was given. Moreover, courts in different countries can make divergent custody orders in respect of the same child.
A non-custodial parent may therefore be tempted to abscond with a child to another jurisdiction in the hope of escaping justice altogether or of receiving more favourable treatment in that jurisdiction. Apart from the wrong of taking the law into his own hands, which I deplore, the mere fact of abduction must almost always prejudice the child's welfare. He may be uprooted from a stable home life, he may be uprooted from school and friends, and he may be taken to a country which has an alien culture and a different language, and with which he has little or no connection. Moreover, the general rule is that in the case of small children, at least, they should not be separated from their mothers and the abduction by a father in such a case multiplies the evil.
A recent example which came before your Lordships' House last year by way of a criminal appeal to the Appellate Committee, at which I presided, was the case which is now referred to as R v. D. That was a very bad case in which the father removed a young female child from its mother by force and guile, not once but twice, and then fled abroad to New Zealand on the first occasion and to Ireland on the second occasion. Happily, on each occasion the child was eventually recovered, but not before both mother and child had suffered greatly.
During my first term as Lord Chancellor there occurred a case which was then called the Desremault case, and some noble Lords will no doubt be able to call it to mind. That was in the north of England—I think the north-east—and it was a prime example of the difficulties of recovering a child from abroad. In that case a French father obtained, quite wrongly, the legal custody of a young child under a magistrates' court order in England, and immediately took the child to France before the mother could appeal. The magistrates' decision was reversed on appeal, but the mother had to take fresh proceedings in France through no less than three courts, culminating in the Cour de Cassation, and then had to pursue the father into Switzerland, whither he had fled with the child, before she finally recovered her little daughter.
No less than five courts, two English and three French, had to consider the merits of custody, and the delay and uncertainty was not only distressing to the mother but detrimental to the child. It is to remedy situations like these that the two conventions to which the Bill will give effect in this country have been made.
Obviously the main provisions of the Bill cannot immediately confer benefits on a parent in this country seeking to recover a child taken from this country abroad. But enactment of this Bill is essential to permit ratification of the two conventions by the United Kingdom, and by virtue of those conventions parents here will enjoy reciprocal arrangements in contracting states by being able to invoke the jurisdictions of local courts elsewhere to enforce orders of British courts.
I will now, if I may, turn to the contents of the Bill and the two conventions which are reproduced in part 1250 in Schedules 1 and 2. Part I and Schedule 1 deal with proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 1980. Credit for the first move in this goes to Canada, which first put forward proposals for a convention in January 1976, and these were included in the programme for the 14th Session of the Hague Conference on Private International Law. A draft convention was prepared and circulated to Governments in 1979, and the convention was opened for signature in October 1980. It was signed by us on 19th November last, and has been ratified by France, Portugal, Switzerland and Canada. It will probably, I am told, be ratified by Australia, West Germany, the Netherlands and the United States of America—and, if this Bill goes through, the United Kingdom—within the next year or so.
The Hague Convention is designed to deal with the immediate problem of abduction by requiring the summary return of the child to the country of its habitual residence so that custody can then be decided by the courts there. Delays of the sort experienced in the Desremault case before the child was returned to its mother should never arise between countries which have ratified the Hague Convention.
Clause 1 of the Bill identifies the convention and gives those articles of the convention set out in Schedule 1 the force of law in the United Kingdom. The articles omitted from the schedule are of an administrative nature, covered by existing legislation. They impose international rather than private law obligations, and are either covered specifically by clauses in Part I of the Bill or are irrelevant to the United Kingdom.
I would draw the attention of the House to Articles 12 and 13 of the convention, which are conveniently set out on pages 14 and 15 of the print of the Bill. Article 12 requires the court to order the return of the child where a period of less than 12 months has elapsed between the wrongful removal or retention and the application, and even where more than 12 months has elapsed unless it is demonstrated that the child is now settled in its new environment.
This is an essential part of the convention, and deals with the primary rule that if a wrongful removal has occurred within less than 12 months from the country where the child has been habitually resident—in other words, the child's home—the child must be returned. There are narrow exceptions. Article 13 establishes grounds on which the court may refuse to return the child. These include that the person, institution or other body having the care of the child was not exercising custody rights at the time of the removal, or had consented to it, or that the child would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation if returned. The latter grounds are, of course, similar to, but more specific than, the general rule which applies in proceedings relating to the legal custody or upbringing of a minor here. The general rule to which I refer is, of course, that the welfare of the minor shall be the first and paramount consideration.
Clause 2 of the Bill provides for contracting states to be designated by Order in Council. These orders will designate the date on which the convention comes into 1251 force between the United Kingdom and the state specified in the order. We may be able to seek and obtain agreement with the other states that the convention should apply to removals which occurred before it came into force in respect of the particular states. We hope to try to do so.
Clause 3 is procedurally the most important. It makes provision for the creation of what is called a central authority in each part of the United Kingdom. The function of the central authority is set out in Articles 7 to 11 in Schedule 1. These central authorities have first a general duty to promote cooperation with each other and amongst the authorities, judicial and administrative, within the particular state in order to achieve the objects of the convention. They must also take certain appropriate measures, either directly or through an intermediary.
The United Kingdom central authorities will, in respect of England and Wales and Northern Ireland, be the Lord Chancellor and, in Scotland, the Secretary of State. The duties of the central authorities will of course be carried out from day to day by officials. These will generally discharge their functions in respect of the individual applications through an intermediary—in fact, a firm of solicitors instructed under the Legal Aid scheme.
On receiving an application the central authority will satisfy itself that the application complies with the convention, and when so satisfied will grant legal aid. A firm of solicitors will then be instructed under the legal aid certificate. The relevant documents will be passed to the solicitors, who will thereafter have carriage of the case with the normal solicitor and client relationships between them and the applicant. This system is used by the Canadian authorities and, I am told, has been found to work satisfactorily.
Clause 4 confers jurisdiction under the convention on the respective High Courts in England and Wales and in Northern Ireland, and the Court of Session in Scotland.
Clause 5 confers power on those courts to make interim orders to safeguard the welfare of a child the subject of any application, and to prevent changes in his circumstances. Such orders would, for example, forbid the removal of the child from the jurisdiction by the alleged abductor.
Clause 6 empowers the Lord Chancellor or, as the case may be, the Secretary of State for Scotland, to assist in an application being made in another state by obtaining a report by an appropriate authority, such as a probation officer, on the social background of a child.
Clause 7 deals with the reception in evidence of the documents provided with an application. In particular it makes a copy of a decision of an overseas court or administrative authority on a child self-proving when properly authenticated. It thus avoids the difficulties of swearing affidavits abroad by making documents sent via a central authority with an application prima facie evidence of their contents.
Clause 8 enables the High Court or Court of Session, as the case may be, to declare that a child has been wrongfully removed from the United Kingdom, so allowing a person seeking to recover a child to comply 1252 with the requirement of an overseas central authority to obtain a determination by means of a court to that effect.
Clause 9 requires any custody proceedings—that is, proceedings in a United Kingdom court for custody or care—to be stayed on notice that an application has been received by one of the central authorities. This provision is needed in order to comply with Article 16 of the convention, which prohibits a decision on the merits of custody in the state addressed in an applicaion.
Clause 10 is a rule-making power. Clause 11 limits, in accordance with the convention, the costs of any application which must be borne by the United Kingdom taxpayer to the cost of legal aid or legal advice and assistance.
Part II relates to the European Convention which is about the reciprocal recognition and enforcement of child custody decisions. It has a number of points in common with Part I, so I shall be able to deal with it rather shortly.
The European Convention has it origins in a recommendation accepted by the Seventh Conference of European Ministers of Justice held at Basle in May 1972. Following this recommendation, a committee of experts drew up the convention, which was finally agreed in February 1979 and opened for signature on 20th May 1980. The European Convention requires decisions on custody made in one contracting state to be recognised and enforced in any other contracting state. Up to the present time the European Convention has been ratified by France, Luxembourg, Portugal, Spain and Switzerland, and I am told is likely to be ratified by another 10 members of the Council of Europe.
The first three clauses (Clauses 12,13 and 14 of the Bill) do much the same for the European Convention as Clauses 1, 2 and 3 do for the Hague Convention. They deal respectively with giving effect to the relevant parts of the European Convention in United Kingdom law, designating contracting states by Order in Council and creating a central authority in each part of the United Kingdom. Of course, the central authorities will be the same as those for the Hague Convention. They will have similar functions of co-operation and assistance, and will operate in much the same way through solicitors instructed upon the grant of legal aid.
The central articles of the European Convention are Articles 7 and 12. These appear on pages 20 and 22 of the print. Article 7 requires a decision relating to the care of a child's person given in a contracting state to be recognised, and, where enforceable in that state, enforced, in every other contracting state. Article 12 enables a decision given after the removal of a child to be recognised and enforced in the same way as a decision given before removal.
These articles are brought into effect by Clauses 15 and 16, by way of a scheme of registration of recognised decisions. A decision of a foreign court or authority which is recognised under the convention will be elibible in the High Court in England and Wales or Northern Ireland, or in the Court of Session in Scotland. Recognition, and hence registration, may be refused on any of the grounds in Articles 9 and 10 1253 of the convention. These are set out in Schedule 2, on pages 20 and 21 of the print. It has been necessary to modify those articles in the schedule because the United Kingdom Government intend to make a reservation under Article 17 so that the courts have a discretion to refuse recognition and enforcement of a decision of another state on any of the grounds set out in Articles 9 and 10. This means that the United Kingdom will not give effect to Article 8, which deals with applications made in respect of an improper removal which has occurred within six months, provided that certain conditions regarding the nationality of the child and its parents and the child's habitual residence apply. Article 8 is not compatible with the Hague Convention and could lead to the return of the child where it might not be in the child's interest to be returned. France, Switzerland and Spain, who have ratified the European Convention, have also made reservations under Article 17.
The most important grounds of refusal of recognition are, in brief: that the defendant did not have a proper opportunity to defend the proceedings in which the decision was given; that there is insufficient connection between the child or the defendant and the country in which the decision was given; and, thirdly, that the effects of the decision are manifestly incompatible with the principles relating to the family and children in our law. This third ground would involve the court applying the principle established in Section 1 of the Guardianship of Minors Act 1971 that the welfare of the child is to be the first and paramount consideration.
In order to avoid the rare possibility of conflicting applications being made simultaneously under both conventions, registration must also be refused if a concurrent application has been made in respect of the child under the Hague Convention by virtue of Part I of the Bill. The Hague Convention therefore takes priority over the European Convention. This is permissible within the terms of Article 20(1) of the European Convention.
Provision has to be made for a decision which has been registered to be varied or revoked if the original decison is varied or revoked by an authority in the country in which it was origially made. Clause 17 does this by establishing a procedure to be followed on a notification by the person in whose favour the decision was made. That clause also allows the registration of a decision to be varied or cancelled on the application of any other interested person.
Clause 18 provides that when a decision has been registered it will be capable of being enforced as if it were an order of the court in which it is registered. Clauses 19 and 20 are similar in effect to Clauses 5 and 9 in providing for the court to give interim directions to secure the welfare of a child and stay, or sist (to use a Scottish term), domestic custody proceedings which are pending in any other court.
Clause 21 is a mirror image of Clause 6 in enabling the Lord Chancellor or the Secretary of State to obtain social background reports. Clauses 22 and 23 are, like Clauses 7 and 8, in respect of admission in evidence of documents provided with an application for registration and in enabling a parent, or other person 1254 with rights of custody, to obtain a declaration that the removal of a child was unlawful.
Clause 24 makes the necessary provision for rules of court to be made for the purposes of that part of the Bill. Clause 25 makes provision for custody orders, defined in Clause 27 as any order mentioned in Schedule 3, to cease to have effect when an order is made for the return of the child under Part I or a foreign decision is registered under Part II. Orders of the kind which will cease to have effect will be domestic custody orders or orders made in care proceedings which relate to the actual custody of the child. It would be wrong in principle, and would give rise to confusion, if conflicting orders in respect of the child's custody were to continue to have effect, and therefore in principle to be enforceable under our domestic law.
I hope that this explanation has made clear to the House the purpose of the Bill, and the way in which its machinery will operate. It is particularly important to appreciate the role of the central authorities. In explaining the Bill, I have concentrated on their role within the United Kingdom. They have an equally, if not more, important role in acting as a channel for applications by parents here when a child has been abducted to another convention country. The central authorities will be sources of advice and information for parents seeking to recover their children from abroad, and their legal advisers.
In other contracting states the central authorities, like ours, will be required to assist in the making of applications to the appropriate judicial or administrative authorities in the country to which the child has been taken. Some—Canada, for instance—will provide a lawyer acting under the legal aid scheme, as we intend to do. Others, like France, will take action directly to effect the recovery of the child.
I hope that it is also likely that the conventions will have a deterrent effect on unlawful abductions. The experience of Switzerland in this respect has been that giving effect to the conventions has by itself already resulted in a reduction in the number of cases of abductions reported to the authorities there.
The House will wish me to refer briefly to the position in the United Kingdom, even though this will be unaffected by the Bill within its several jurisdictions internally. Problems arise from conflicts between the competing jurisdictions of courts in each separate jurisdiction within the United Kingdom, and from the fact that orders made in one jurisdiction are not entitled to automatic recognition and enforcement, save in Scotland when the initial custody order has been made by the court of the child's domicile. The Law commissions for England and Wales and for Scotland have jointly reported to the Government on these problems. Their report was published on 15th January. The Government have not yet had time to reach a decision, and there is no prospect of legislation this session. On the other hand, it would be wrong to delay this Bill, which deals with a more urgent and perhaps more difficult situation.
I hope that the Bill will now have a favourable reception. Although the size of the problem is small in numerical terms, it is growing, and those involved in the abduction of a child, both parent and child, 1255 frequently suffer cruel, severe and avoidable distress. This Bill, I hope, will be of great assistance in providing a remedy. I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 6.4 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for explaining with his customary clarity and detail the provisions of the Bill. We on this side of the House welcome the Bill. I venture to think that it will be welcomed generally on all sides of the House. It is very important that we should not fall behind in ratifying useful international conventions of the kind we are discussing which we have signed, particularly when they are already in force. A tribute is owed to the Canadian authorities for the initiative that they have taken in this field. A number of European countries have also given effect to the conventions which are in force in a large part of Europe.
The Bill, as the noble and learned Lord has indicated, deals with the grevious subjects of child abduction—kidnapping used to be the old-fashioned word—and disputes regarding custody of the children of broken marriages. The difficulties with which the convention and the Bill attempt to deal have multiplied first because of the increasing number of international marriages along with ease of travel from place to place; secondly, because of the regrettably high incidence of divorce; and, thirdly, because of the hopes of some parents, denied custody of their child or children in one country, that by taking the child away to another, they might obtain a custody order there in their favour. They have come to be called in the press "tug-of-love" cases, although one wonders how much love is involved bearing in mind the harm that may be caused to the children in the course of these operations.
The noble and learned Lord the Lord Chancellor has given some examples illustrating the present problems. He has referred to one or two of the cases. I wonder whether the noble and learned Lord the Lord Advocate can tell us a little more as to the extent and frequency of the problems with which the conventions and this Bill seek to deal. According to the press, the Foreign Office has files on about 150 British children who have been taken abroad illegally, usually by one of the parents. There are also said to be up to 200 children who are brought illegally to Britain each year from foreign States. I wonder what the position is, too, between other countries. Even the figures I have given point to the seriousness of the problem.
The Child Abduction Act passed in October last year was designed to provide criminal sanctions against people who take children abroad without permission. As the noble and learned Lord has indicated, this Bill will provide a civil procedure for getting them back. The provisions of Part I of the Bill, as he has explained, which give effect in the United Kingdom to the 1980 Hague Convention on the civil aspects of international child abduction, are directed to simplifying the procedures to secure the welfare of 1256 the child caught in the parental tug of war or to prevent a change in his circumstances.
Part II, as explained to us, gives effect in the United Kingdom to the European Convention of 1980 on recognition and enforcement of decisions regarding custody of children and restoration of custody of children. In these respects, the Bill is clearly of considerable value and rests on substantial and powerful authority. However, as the noble and learned Lord, in the closing part of his speech, has indicated, the Bill does not attempt to clear up a problem on our own doorsteps. It has been there for many years. It is the different provisions in England and Wales on the one hand, from the provisions in Scotland on the other, in regard to jurisdiction to make orders as to children. As a result, parents can now flout custody orders made for example in England by taking the child to Scotland and having a go there, or vice versa. To what extent these devices succeed I do not know. It may well be that a judge in one country, hearing what has happened in the other, will be reluctant to come to a different view. But who knows? The judge might well do so.
The problem is a serious one; but happily, as the noble and learned Lord has pointed out, the Law Commissions have been examining the problem and have recently proposed—I concede that it was pretty recent—closing the loopholes which presently exist by establishing unified rules of jurisdiction throughout the United Kingdom. This would go far towards providing an orderly and effective system for dealing with cross-border country disputes. It is astonishing that they have lasted such a very long time and that they should still exist. If the situation continued, in the light of giving effect in our law to the present Bill, it would indeed by highly anomalous if a custody order made in the United Kingdom and enforceable abroad in most of the countries in Europe were not enforceable in Scotland, or if a foreign custody order were enforceable in England and Wales but a Scottish order were not enforceable.
I noted, and heard with considerable interest, the indication by the noble and learned Lord the Lord Chancellor of the Government's intention to give effect to the Law Commission's proposals. But I confess that I was less than enraptured by his statement that it could not happen in the next Session; so this grotesque situation as between the two countries will continue for a considerable length of time. It may well be that the noble and learned Lord is regretting that he could not have introduced such a provision in this Bill, had it been possible as a matter of drafting. I suspect that it could have been introduced. It would have been a welcome relief. I say that knowing as I do the pressures on the time available for legislation and the reluctance of legislation committees to be seduced by the eloquence of the noble and learned Lord the Lord Chancellor in making more and more room for law reform Bills.
However, there it is. We have to face this unhappy situation that a clearly intolerable and unacceptable arrangement has to continue because of mere lack of parliamentary time. I should anticipate that such a Bill would be non-controversial. Of course I cannot bind my successor or anyone else to the certainty that that would be so; but the present arrangement is such 1257 nonsense that I cannot believe there would be any difficulty in giving effect to what is proposed. I hope therefore it is a happy thing that it falls to the noble and learned Lord the Lord Advocate to reply, at least to this part of the discussion. Perhaps he may be able to twist the arm (if that is not an improper exercise) of the noble and learned Lord the Lord Chancellor and come more quickly than he has indicated with a long-desired and really grossly overdue arrangement to improve the comity which ought to exist between England, Wales and Scotland.
§ 6.13 p.m.
§ Lord Meston
My Lords, in many respects this Bill is more important than the Child Abduction Bill which was passed last year, and it is indeed welcome. In part that is because if there is one thing worse than child abduction it is international child abduction: in part it is because the problem is growing, as the noble and learned Lord the Lord Chancellor has said. These cases fuel themselves, and they fuel the fears and tensions of marital breakdown. To consider a case I heard of recently, it is hard to imagine anything more chilling than for a mother to return home to find her children have disappeared and then to receive a telephone call from the father saying that they are all in South America. The children in these cases will probably already have suffered the trauma of the breakdown of their parents' marriage. They are then uprooted from all that is familiar and important to them. Their world is turned upside down, and they become strangers in a foreign land. However resilient the child, that experience must be confusing, frightening, and, in the long term, damaging.
Last year's Bill was concerned simply with modernising the criminal law. This Bill, as your Lordships have been told, is concerned with the civil aspects of child abduction and effective methods of retrieval. It deals with the typical case where internal safeguards and sanctions have failed. The hope is that an abductor will now not get away with it if he gets across a jurisdictional boundary. Extradition under the criminal law is lengthy, cumbersome and inadequate, being of course directed at the wrongful abductor and not the innocent child victim. International law has so far failed to effect retrieval of children.
The statistics are not clear, but it seems that hundreds of children are abducted yearly and thousands are never retrieved. Without effective international mechanisms, deprived parents are really left powerless and desperate or are driven to expensive and clumsy attempts at self-help, with the emotions running higher and higher. It must be said that such people have not always had the assistance of diplomatic or consular officials that they might have expected to receive. They also sometimes find that in foreign countries they face bureaucracies which are uninterested or, worse still, corrupt.
These conventions will enable deprived parents to bypass diplomatic channels, to bypass lower bureaucratic organisations, and even in some cases to bypass the central authorities and go direct to the court. But in the last resort the effectiveness of these conventions depends on the quality and number of other countries adopting them. The wider the net the 1258 more workable and more acceptable the whole system, and it will be of immense value when Australia and the USA form part of that system.
As your Lordships have heard, there are two different conventions. I should like to concentrate for a brief moment on the Hague Convention. That is concerned with custody rights rather than custody orders. I would hope that the optional requirement under Article 15—what is sometimes called a chasing order—will be used sparingly. Time is very often of the essence because a child's roots can be put down very quickly. There have been really three areas of concern to family lawyers. The first is that the Hague Convention does not say in terms that the welfare of the child is the paramount consideration. However, I would accept that the whole underlying principle of this convention is that abduction is contrary to the child's welfare and speedy return is in the child's best interest in the vast majority of cases.
Secondly, there has been some concern that the convention's machinery does not allow our courts to consider the merits of a dispute between the parents. The English wardship jurisdiction, particularly in the last 10 to 15 years, has reserved and has exercised that right to consider the merits of the dispute. We shall have to overcome our natural tendency—particularly the lawyers' natural tendency—to prefer a hearing before our own courts to a hearing in the courts of the child's own home country. To allow an extensive hearing in this country will (and often does) encourage forum shopping, and, as the noble and learned Lord, Lord Elwyn-Jones, indicated, will encourage attempts to use this country's courts as, in effect, a court of appeal from the court of another country.
It is important to realise that the return of the child under the mechanism of this Bill does not purport to determine custody rights. It is important, therefore, that we should have confidence in the principles being applied abroad and in the manner in which those principles will be applied abroad, and confidence in receiving reciprocal treatment for our own children.
The third area of concern would seem to be that there are perhaps not enough exceptions to the machinery of automatic return. There are really four exceptions. Under Article 12 the court need not return automatically after a period of one year if it is demonstrated that the child is now settled. There is an exception under Article 13(a) dealing with the consent or acquiescence of the deprived parent. There is an exception under Article 13(b) where there is a grave risk of the return exposing the child to physical or psychological harm or otherwise placing him in an intolerable situation. There is an exception under the next paragraph of Article 13 dealing with the objections of children of mature age. Article 13(b) is tightly drawn, but it may be that in this country it will be rather more liberally construed by the courts.
On balance, I would suggest it is correct that the exceptions should not be too many and should not be too widely drawn; otherwise, these safety valves could be manipulated by abductors and turned into escape clauses, buying precious time to the detriment of the child. The mechanisms must be swift and simple to work.
1259 Having said all that, I should like briefly to comment on the omission of Article 20 of the Hague Convention from the schedule to this Bill. Article 20 of the Hague Convention provides as follows:The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requesting state relating to the protection of human rights and fundamental freedoms".Surely it cannot be said that this country, albeit without a written constitution, does not have fundamental principles relating to human rights and fundamental freedoms? Surely it cannot be said that Article 20 is otiose in the context of this Bill and that it is inconsistent with the interests of children, whom this Bill intends to protect? Surely Article 20 is a useful safeguard? I wonder why it has been chosen to omit Article 20, which was apparently the subject of very careful consideration at the Hague.
Subject to those comments, the Bill is welcome. There will still be difficult decisions, and I earnestly hope that, so far as England is concerned, they will be left to the judges of the High Court, Family Division. There will also still be the need, in England at any rate, for the safety net of the wardship jurisdiction, which has served so well. I certainly would agree that this Bill should deter kidnapping. It will reduce the great harm which is done by these unilateral actions and will be of great value to the innocent victims. I support the Bill.
§ 6.24 p.m.
§ Baroness Faithfull
My Lords, I was privileged to introduce into your Lordships' House the Child Abduction Act 1984. At that time it was recognised that the Act would need to be followed by another Bill, which we have before us today and which I support.
I should like to refer to two aspects of the Bill. First, the position of the parents—and in that connection the noble and learned Lord, Lord Elwyn-Jones, has referred to those parents as tug-of-love cases with one parent tugging against the other—and secondly, the position of the child.
So far as the parents are concerned, the Bill deals with the enforcement of existing judgments. The Bill deals with the legal machinery to deal with the parent who has illegally removed a child from the parent to whom custody was given and from whom the child has been removed. The legal battle is between both parents and each of them has the right to be heard by the court.
I am also concerned about the wellbeing and the rights of the child. The noble and learned Lord the Lord Chancellor referred to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. The convention was signed by the United Kingdom in May 1980 with a permitted reservation that in the United Kingdom courts the welfare of the child is of paramount consideration.
That being the case, may I ask the noble and learned Lord the Lord Advocate who is to reply—bearing in mind Articles 8 and 13 of Schedule 1—whether he considers that, under Clause 6 of the Bill, the welfare of the child is paramount? Clause 6 deals with the reports by probation officers and social workers. Does not the noble and learned Lord the Lord Advocate 1260 consider that a juvenile has the right to be heard direct by the court and not through a report, however sound it may be? Both parents have the right to be heard and surely the court should hear from the child himself what that child feels to be his right and his need? I have dealt with many older children who have felt resentful that they have not been able to express their views to the court.
May I further ask the noble and learned Lord the Lord Advocate the position with regard to the staffing that is necessary to deal with these cases? The noble and learned Lord, Lord Elwyn-Jones, has given figures as regards the number of probable cases. Do Her Majesty's Government consider that the staffing that we have to carry out home surroundings reports is adequate? If the position becomes more serious, will the Government look at the question of staffing?
Finally, I ask one last but difficult question which perhaps it is almost impossible to answer. Is there any way by which the principles of child care can be common to the countries concerned? I realise that with different cultures this is a sensitive area. But, as a start, could there at least be a form which is common to the different countries which fall under the provisions of this Bill?
§ 6.28 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, I must express my thanks and those of the noble and learned Lord the Lord Chancellor for the welcome which has been extended to this Bill by all of those who have spoken. Its intention, which will allow two international conventions to be ratified, is obviously most important, particularly when the subject is that of children and where the intention is to avoid by international agreement prejudice to the welfare of children who are involved and who have been involved in various ways in what has been described in the House today as kidnapping, abduction, tug-of-love, and the like.
Obviously this is a first step. However, it is important because we have here the start of international agreement to overcome something which has for long been recognised as a problem. In response to what was said by the noble and learned Lord, Lord Elwyn-Jones, let me just say that at present there is certain information on the number of cases which would be affected by these conventions.
The figures which were quoted by him, namely 160 British children in the Foreign and Commonwealth Office files, is in fact correct. The best estimate at present is that somewhere in the order of 100 cases a year arise of the abduction of children from the United Kingdom. While that may seem in one sense small, neverthless a figure of that kind indicates the urgency with which we should attempt to deal with this problem. The next figure I have in so far as foreign countries are concerned is that in relation to France. The figure is of a similar order, perhaps slightly higher, about 250 cases a year.
The noble and learned Lord indicated that one of the advantages of this Bill was that it simplifies procedures. I suggest also that it allows people to receive assistance through the central authorities in recovering children who have been removed from, or 1261 retained in, these countries which are concerned. The noble and learned Lord, at the end of his speech, went outwith the terms of the present Bill. He raised a problem which has been well known for a considerable number of years, and which arises within the separate jurisdiction in the United Kingdom in relation to custody orders. That matter is referred to in the joint report of the Law Commissions, and one observes from passages within the report that there had been a previous attempt to obtain some clarification of these issues in the Hodgson Committee.
However, I would always hesitate to put any kind of pressure upon my noble and learned friend the Lord Chancellor. I was going to say that even a quarter Nelson, let alone a half Nelson, would I am sure have no effect if' he were determined upon a particular step. However, I like to think that we can take comfort from what my noble and learned friend said at the outset. He indicated that it would not be possible to find time in this Session for legislation, and it may be—and it certainly would he my hope—that it might be possible to introduce a Bill somewhere along the lines of the Law Commissions' proposals in their draft Bill perhaps in the next Session ahead. Obviously one can say no more than that.
It would be wrong of me not to suggest that it is fully recognised that this too is a problem which ought to be solved as rapidly as we can, particularly since I, speaking as a Scotsman, realise that the basis upon which the Scottish courts exercise their jurisidiction in custody orders differs somewhat slightly from that upon which English courts act. This obviously leads to precisely the same difficulties as appear in relation to the tug-of-war cases, forum shopping, and the like. I would accept that the Law Commission has set out at least one way in which that problem might be solved.
The noble Lord, Lord Meston, referred to the trauma to families when abduction takes place. In one sense he has merely underlined the need for internationally accepted procedures to be obtained in order to overcome the problem. In regard to Article 15 of The Hague Convention, he expressed the hope that it would be used sparingly, and I think it would be our hope also that that would be the case. Indeed, that was the intention of the convention's draftsmen. But it may sometimes be necessary when there is real doubt as to the effect of the law of a child's habitual residence: for instance, concerning the father's position in relation to a child horn out of wedlock. One can sec that in such circumstances the article is obviously necessary and its use may be required.
The noble Lord, Lord Meston, also made reference to the issues arising under Articles 12 and 13. He set that off against the need to prevent manipulation by abductors. I suggest to your Lordships that what appears in the convention—and of course in this Bill it is to be taken into the law—in fact strikes the right matter of balance between those competing interests.
Finally the noble lord asked why it was that Article 20 of The Hague Convention had been omitted. I wish to make it clear at the outset that its omission does not mean that we are not bound by it, or cannot use it. The reason why it was left out is simply that it states a general principle which cannot be easily accommodated in a United Kingdom legal text. But if an issue 1262 arises in which the text is relevant, then judges in the courts in the United Kindom—the High Court in England, or the Court of Session in Scotland—can of course have regard to it. I trust that that would at least satisfy the noble Lord's point on that particular matter.
My noble friend Lady Faithfull—who of course in a sense was the progenitor of the ciminal half of the Bill we have before us today, the Child Abduction Act 1984—has quite properly pointed out that in certain circumstances the child too should have a voice in the disposal by the court that is deemed appropriate in relation to custody. That is specifically provided for in Article 13 of the convention. She raised the point in relation to Clause 6, but there again it is important, just to be clear, to say that that is dealing with the situation not of the court and whether it should have regard to the child's wishes but simply to the position where the Lord Chancellor, or the Secretary of State, is requested to provide information relating to a child under Article 7(d) of the convention. That proviso is to be found on page 13 of the Bill:to exchange, where desirable, information relating to the social background of the child".In fact, that clause does not perhaps go quite so far as at one stage she feared it would do.
She also asked about the question of staffing. Taking what I did from the numbers—which are likely to rise each year—which would be covered by the conventions, it will be possible that all the necessary staffing requirements can be met within the present public service manpower limitations. It has been estimated that for England and Wales this would be of the order of three persons, and in Scotland and Northern Ireland of one part-time post for each of those parts of the United Kingdom. But, of course, these are early days. It depends on how the matter grows, and in the light of experience we shall obviously have to keep that under review.
Finally, my noble friend raised the issue of child care. I think I would be wary of being led on to that ground, which does not arise directly in this Bill. I am fully aware of my noble friend's interest in the matter; and at this stage I would simply say that I shall watch with interest her attempts to promote the kind of uniformity in child care which I know she is anxious to see. However, for the moment I can do no more than say that the Bill as it at present stands simply envisages the child care arrangements that at present exist in each of the countries which will be party to the convention.
I would simply join with my noble and learned friend the Lord Chancellor in commending this Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.