Child Abduction and Custody Bill [H.L.]

HL Deb 28 March 1985 vol 461 cc1154-78

3.43 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

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.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 1 to 3 agreed to.

Baroness Faithfull moved Amendment No. 1:

After Clause 3, insert the following new clause:

("Reports for applications.

. In considering an application under the Convention, in all cases the Central Authority shall ensure that a full report on the case is prepared in writing by a local authority, probation officer or other qualified person, such report to include where practicable the wishes and feelings of the child.").

The noble Baroness said: There are a number of amendments in my name on the Marshalled List and in the names of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon. All these amendments have the same purpose and texture. They are based on my experience of court work in divorce cases and in custody cases. I remember well children appearing before the magistrates' court in a custody case where custody was given to one of the parents, and where the children were not heard although they had been asked by the probation officer or social worker what their views were.

The magistrates made an order without hearing the children and taking simply and solely the reports submitted to them. Those children ran away the next day. They came to my office and asked, "Why didn't the court hear us? Why didn't they hear what we had to say? We refuse to go home". The case had to be reheard. Having been reheard, custody was given to the other parent. This was because although the mother was an extraordinarily able person, she was a mental patient at the time—which nobody knew. The children found it very difficult to be in the home with her. These amendments have been set down with that experience in mind.

I therefore move first Amendment No. 1, which reads: In considering an application under the Convention, in all cases the Central Authority shall ensure that a full report on the case is prepared in writing by a local authority, probation officer or other qualified person, such report to include where practicable the wishes and feelings of the child". I have said that in my experience of working in the courts, it is a disaster not to take heed of what children think and to treat them just as baggage as between the parents. It is in that spirit that I beg to move Amendment No. 1.

Lord Elwyn-Jones

I should like to support the noble Baroness in this amendment and the others in her name. It seems to me that the sooner the authorities who will have to handle these delicate and difficult matters are as fully informed as possible about the position, the better it will be for the future conduct of the matter. I doubt very much whether the noble and learned Lord will be inclined to disagree with that proposition.

The first amendment is designed to ensure that the basic and relevant matter of the wishes and feelings of the child should be known at an early stage. The noble and learned Lord the Lord Chancellor and his department are to have this additional burden cast upon their shoulders, and it seems to me that a full report on a case prepared by the authority responsible or which will carry a good deal of the responsibility—namely, the local authority, the probation officer, or other qualified person—at an early stage, would, I anticipate, do nothing but good and could do very little harm. For those reasons, I support the amendment.

Lord Denning

I was unable to be in your Lordships' House for the Second Reading of the Bill and so perhaps I may be permitted to say a few words now. I would sympathise entirely with the views of the noble Baroness if the matter were to be dealt with simply by an English court dealing simply with English law. But here we have a court that has to deal with international conventions. The international convention governs the various considerations.

Perhaps I may remind your Lordships of a typical case with which the convention would deal. There might be a wife with her children at home in England. She is separated from her husband and the husband has the children out, perhaps when he has access to them, but instead of returning them, he takes them to Heathrow and flies them off to Switzerland or the United States. He deprives the mother of them in that way; or it might be that he simply goes into the house and kidnaps the children and flies them off overseas. It is that kind of problem which the convention would deal with.

The meeting regarding the convention lasted for months at The Hague in 1980, with many nations represented. They all agreed on the convention and the words used were that its objective was to secure the prompt return of a child who had been wrongfully removed, say, from England to somewhere overseas. In order to secure prompt return responsibility was to be entrusted—and this is a most excellent arrangement—to central authorities to be set up in each country. It will be the Lord Chancellor who will be responsible in England and, I suppose, very important people will be involved in other countries. They will work together and collaborate to get all the information on what has happened and obtain prompt return of the child to the home from which it was seized; and the real merits of the matter can be decided. That is the kind of principle underlying the Bill. The central authorities are of first importance in organising on an international basis the prompt return of a child, whenever it is possible. That is the outlook of the international convention. It then entrusts the court to determine on prompt return or not. There are all kinds of provisions about that.

I shall now refer in turn to the three amendments put forward by the noble Baroness, Lady Faithfull. The convention states that the central authority is to take all appropriate measures. It refers to exchange where desirable and to information relating to the social background of the child. So, of course, the authority will get this information which the noble Baroness suggests.

The next amendment states that, a court shall regard the welfare of the child concerned as the first and paramount consideration". However, the convention itself states that the first and paramount consideration is to return the child who has been wrongfully taken away. This matter would involve the court in a full determination of the case. With the third amendment the court has to ascertain the "feelings of the child." There is a special provision in the convention which says, in Article 13, that judicial or administrative authority may also refuse to authorise the return of the child if it finds the chiild objects to being returned and has attained an age and degree of maturity when it is appropriate to take account of its views. In other words, I suggest that the convention deals adequately with the various problems which the noble Baroness, Lady Faithfull, raises and there is no need to have these amendments in the Bill.

Lord Meston

Perhaps I may briefly share the reservations expressed by the noble and learned Lord. It is important to remember that in this country the courts are never bound by the wishes of a child; they are just one fact to be taken into account in a custody dispute. The weight given to the wishes of the child depends on the age of that child. It is also notorious that children in these situations have a number of defence mechanisms. Either they clam up completely or they express their views in a coded message which it takes the skill of a welfare officer to discern; or, sadly, they feel that they have to express their loyalty to the parent they are with by means of an exaggerated hostility to the other parent. One sees that all too often. It is a very real and genuine feeling on the part of the child but, in fact, it is not always representative of what is in its best interests.

These children have enough pressures without feeling that they have to make a choice between the parents who have done them the disservice of splitting up acrimoniously. As one learned judge very wisely put it, children have the right not to have to decide their own future in such cases. In practical terms, it is important to remember that the procedures of this Bill do not purport to decide the custody of the children. They provide a summary remedy for the swift return of children to the proper forum for that decision.

Time is of the essence. Court welfare officers have to take time. They are grossly overworked, particularly now that they are also burdened with conciliation procedures. Even an expedited report from a welfare officer can take months rather than weeks. Accordingly, I share the reservations of the noble and learned Lord, Lord Denning, for the reasons expressed by him. Article 13 provides that the wishes of the child shall be taken into account when the child is of an age and degree of maturity and when it is appropriate to take account of its views. It should not be necessary to have a welfare officer's assistance in every case.

The Lord Chancellor

Before we get into a worse muddle I think that perhaps I ought to intervene at this stage. Despite my noble friend's very considerable experience in the courts and the powerful support she has received from the noble and learned Lord, Lord Elwyn-Jones, I must point out exactly where we are going and what this Bill is about. I tried to get it across on Second Reading, but evidently I made no impact at all in what I was trying to say. I shall try once again.

The object of this Bill, and its only object, is to enable us to ratify two conventions—The Hague Convention and the European Convention. That is the Bill's only object. If anything is done which would prevent our ratifying those two conventions, the Bill might just as well be thrown into the wastepaper basket because it will have no value whatever.

Our interest in this matter consists in protecting our own children who happen to be taken abroad, lawfully or unlawfully. The Hague Convention is intended to protect them from abduction by causing a foreign court—not our court—to send them back here. The European Convention is intended to help our children abroad by causing a foreign court—not our court—to recognise a custody order made in this country by our courts. The only effect of my noble friend's amendment, were it to be passed, would be to affect orders in this country about foreign children. They arise only for the purposes of this Bill.

I must say again—I thought I had explained it in words of almost one syllable on Second Reading—that the only purpose of the proceedings under this Bill is that the price we have to pay for the return of our children who have been abducted, and the price we have to pay for the recognition of our own orders for custody, is that we must show reciprocity with other countries. The only way we can show reciprocity with other countries is by ratifying these conventions. The only effect of any of my noble friend's amendments—this applies to them all—is that we could not ratify either convention, so the Bill would be useless.

4 p.m.

I shall not go into every amendment, but I should like to show what is wrong with this one, because, mutatis mutandis, the same kind of argument applies, which I think was seen fairly clearly by my noble and learned friend on the Cross-Benches. We could not ratify with this amendment The Hague Convention. There are at least five respects in which the convention would be breached if we passed this amendment. We must remember that we are talking about The Hague Convention. There is the question of the return of our own children abducted abroad and the reciprocal return abroad of foreign children abducted hither.

The convention operates on the basis that the rights of custody which are defined in Article 5(a) of The Hague Convention obtained in another contracting state shall be respected, and where there has been a wrongful removal the child shall be returned to the person exercising the rights of custody without the determination of the merits of the right of custody —that is to say, without the kind of protection which my noble friend is seeking to give foreign children here. The effect of the new clause would be that the report would be considering matters which go to the heart of the merits of the right of custody, and therefore we could not ratify the home convention.

Secondly, the grounds on which the refusal to return a child under The Hague Convention, set out in paragraph 2 of Article 12 of the convention, which your Lordshps will find in the first schedule, I think, and in Article 13, can be used only by a respondent—normally the respondent will be the abductor or the alleged abductor of the child—to an application under Part I of the Bill. It is for the respondent (that is, the alleged abductor) to raise those issues and prove them, and not for the central authority (that is, the Lord Chancellor) to obtain a report which could be relevant only to a decision on the question of custody. In other words, it is not a question of putting on my office an additional burden; it is a question of doing something which is contrary to the convention, the purpose of this Bill being to enable us to ratify it.

Thirdly, by requiring that a report be prepared as proposed in the new clause, the United Kingdom would become in breach of its obligation under Article 11 of the convention. Again, your Lordships will find it for easy reference in the First Schedule. The preparation of a report would hinder the prompt return of a child because of the length of time it would take to produce a report of the type proposed in the new clause. I think that the noble Lord on the Liberal Benches, Lord Meston, touched on that point.

Fourthly, the duties of the central authority are defined and set out in Article 7 of the convention, again in the First Schedule. Those duties are to assist the person whose rights of custody have been infringed and not to instigate investigations into the merits of each application.

Fifthly, Article 7(d) of the convention provides that the central authority where the child who has been wrongfully removed has his habitual residence may be required to exchange, where desirable, information relating to the social background of the child. In paragraph 93 of the explanatory report on The Hague Convention the rapporteur explains: Indeed, the insertion of the clause, where desirable, demonstrates that there is no wish to impose an inflexible obligation here". The possibility of there being no information to provide, and the fear that reference to this provision might be used by the parties as a delaying tactic, are some of the arguments which prompted that approach.

Therefore, the proposed new clause conflicts with the provisions contained in the convention by imposing a duty to report where under the convention the obtaining of a report from the central authority for the country where the child is habitually resident by virtue of Article 7(d) of the convention is merely permissible. It would therefore be inappropriate and impractical for the welfare authority directed to prepare what is called a full report without definition to make inquiries in the country of the child's habitual residence which such a report would require.

There will be nothing to prevent the High Court or the Court of Session from requiring a report on a child who is the subject of a Hague Convention application where the court considers one would be necessary. For example, if the respondent alleged under Article 12 that a period of more than one year had elapsed since the wrongful removal and that the child had now settled in its new environment, the court could, and probably would, order that a report be made. In cases—probably the large majority—where there is no defence to an application, to require a welfare report would clearly be contrary to the interests of the child itself.

In the light of what I have said, it is not necessary for me to add, but I must add, that the drafting of the clause is defective for the following reasons. There is no indication as to what is meant by a full report in the new clause, including how much information would be required from the country where the child has its habitual residence. Secondly, the words, "and/or other qualified persons" imply a doubt whether a report by a local authority or a probation officer has to be made in conjunction with some other qualified person. I must add a quirk of my own: the phrase, "and/or", is unsuitable for inclusion in any English statute.

Having said that, I want to stress the point of principle with which I began. The purpose of this Bill, and its only value, is to enable us to ratify the convention. All these proposed amendments would render it impossible for us to do so.

Lord Mishcon

One always listens with every conceivable respect to the noble and learned Lord the Lord Chancellor and to the noble and learned Lord, Lord Denning, but I venture to suggest that on this occasion the noble and learned Lord the Lord Chancellor has taken the Committee through his interpretation of the convention and this Bill in a perfectly fair way but that there is a completely different way of looking at the matter which does not have the dire effects which he forecast to the Committee of breaching the convention and making the Bill unenforceable.

Whether it is our children who have gone abroad or been taken abroad or foreign children who are here, they are still children. The purpose of the convention (and I know of this Bill which is being piloted by the noble and learned Lord) is to see that children are not made packages which are just, as it were, sent through the post or put on a ship or on an aircraft—that is the whole purpose of the convention—whether there be a custody order in another country in the case of a foreign child, where one parent has been granted custody, and contrary to that order that child has been removed by another parent, or whether the reverse situation is the case and it is an order of our court.

The noble and learned Lord very correctly, if I may be allowed to say so, took us through certain provisions of the Bill and of the convention. I know that he will bear with me if I try to do the same but do it in a rather contrary way to his, in the sense that from my point of view one reaches a different conclusion.

It is not just a question of an ordinary administrative decision as to whether a child shall be taken away from this country or from another country in the case of one of our own children. May I refer the Committee, first of all, to the article to which the noble and learned Lord referred, Article 7, which deals with the duties of central authorities—the central authority in this country being the Lord Chancellor; the central authority in another country being, if ever that were to be true, his equivalent?

What are the duties of the central authorities in co-operating with each other when a child has been abducted in this way? They are set out at the top of page 13 of the Bill because the convention is scheduled to the Bill: In particular, either directly or through any intermediary, they shall"— not "may" but "shall"— take all appropriate measures"— and then you look at (b)— to prevent further harm to the child"— a discretionary matter (that is of course my interpolation)— or prejudice to interested parties by taking or causing to be taken provisional measures"— then look at (c)— to secure the voluntary return of the child or to bring about an amicable resolution of the issues". May I pause there? How can anybody tell any central authority whether or not it is possible to obtain the voluntary return of the child without knowing what the child's wishes are? It is impossible. It is impracticable.

I then turn to the next paragraph: (d) to exchange, where desirable, information relating to the social background of the child". I am not sure that I quite understand what the words "social background" mean here. If they really mean—to use, I suppose, a particularly English but not always desirable definition—whether it is working class, middle class or whatever else the social background may be, I know not. But I will interpret it on the basis of the background of the child, which obviously would include the circumstances of the removal and the wishes of the child where they can be obtained.

Having dealt with what are the duties of the central authorities in both countries, I go over from there and I look, as did the noble and learned Lord, at Article 10: The Central Authority"— again the Lord Chancellor, in our case— of the State where the child is shall take or cause to be taken all appropriate measures … to obtain the voluntary return of the child". That is a repetition in very strong terms that the child is not to be posted off, if I may use that word. It is the duty of the central authority to see whether or not the child can be voluntarily returned. After endeavouring to get an amicable solution, as we read under the previous article, now they have to try to obtain the voluntary return. Again, how can that happen without knowing what the wishes of the child may be where that can be obtained?

Then we look at Article 13, again an article to which the noble and learned Lord referred but in a different way, if I may say so, from the way in which I venture to refer to it. I am looking at the second paragraph of that article, which is very important in relation to this amendment: The judicial or administrative authority may also refuse to order the return of the child —again you will see that it is nothing automatic, there are duties, discretions, vested in the judicial or administrative authority— if it finds that the child objects to being returned"— how can you find that out unless you have before you a full report as to the wishes of the child if you are able to obtain it? Then the paragraph goes on: and has attained an age and degree of maturity at which it is appropriate to take account of its views". How can you find that out without a report? What is the age? What is the degree of maturity? How is anybody to find that out without a proper report?

Then I go to the last sentence of Article 13: In considering the circumstances referred to in this article, the judicial and administrative authorities shall take into account"— it is mandatory— the information relating to the social background of the child provided by the Central Authority"— again, in our case, the Lord Chancellor, his counterpart in another country, relating to one of our children, or other competent authority of the child's habitual residence". If the noble and learned Lord had answered this amendment by saying that it is wrongly drawn because it is asking for a full report from the local authority, I could have understood it and I should have said, "Yes, noble and learned Lord, but this is really a drafting point. The spirit of the amendment is in the last words, which stipulate that a report should be obtained where practicable to show what the wishes and the feelings of the child are". If the noble and learned Lord says, "Yes, because of all the duties which are cast upon the central authority, and indeed the administrative and judicial authorities, under this very convention, it is necessary to have a report which will show what the wishes and feelings of the child are", then I should have said that another amendment can be brought forward at the Report stage and we shall deal with that particular issue; maybe we should not have asked for a full report to which some kind of answer may be given, such as the noble Lord sitting on the Liberal Benches said would take up a very considerable amount of time.

4.15 p.m.

What is asked for in principle in this amendment is a definition of what has to be considered by those who are to make a decision in regard to the child. Obviously, that decision cannot be made without a proper report being before the party or the body which has to make the decision. This decision is very vital in order to procure in some cases the voluntary return of the child and in other cases possibly communication between the central authorities to ask, "Is it a good idea anyway? Is this in the paramount interest of the child?"

The Lord Chancellor

I should like to try once more because this really goes to the heart of the Bill. I really must try once more. Of course I do not deny that, under Article 13 of the convention of The Hague and under Article 10(1)(b) of the European Convention, the child could in certain circumstances, particularly in the circumstances envisaged by my noble friend Baroness Faithfull, be heard; nor do I deny that under the convention there are means, referred to by the noble and learned Lord on the Cross-Benches, whereby reports of one kind or another can be obtained. All I am saying is that the convention lays down how that shall be done.

In all these amendments, the noble Lord, Lord Mishcon, and my noble friend are devising another means by which it is to be done. If therefore they pass their amendment—which God forbid!—this Bill will be a waste of time because we could not ratify the convention. That is a perfectly simple matter and I must try to put it across.

The noble Lord says that this is my opinion. Of course he knows as well as I, perhaps better, that I am not talking now about English law (about which I might be said to have a small, superficial knowledge: I am talking about international law and the interpretation of a convention. I have to take advice on this and that is the advice I must give the Committee based on the best opinion that I can get. It is no good complaining that I am given that advice, because that is what I am told.

However, I must also say this, because the noble and learned Lord has a certain capacity for arousing -legitimate emotion in his treatment of these matters. Of course the object of this Bill and the object of both conventions is to stop a child being treated as a package. Of course it is. But the application envisaged under the Hague Convention—which I must say refers to a foreign child brought here and not to a British child taken, let us say, to British Columbia or France—takes place after the child has been treated as a package and wrongfully treated as a package, maybe by a wealthy and wicked respondent.

The object of these conventions is to stop that happening. We cannot stop it happening to British children abducted abroad unless we ratify the convention. In order to ratify the convention, the price that we have to pay is that we follow the convention and not some better method (if it be better, but certainly a different method) envisaged by my noble friend and by the noble Lord, Lord Mishcon. We are in danger of losing the Bill if any of these amendments are allowed.

Lord Mishcon

I wonder whether the Committee will forgive me if I come back to the argument dealt with by the noble and learned Lord the Lord Chancellor in his last speech. We are adding nothing to the duties of the convention other than to see that there is proper information before all the duties cast by the convention itself are carried out. I wonder whether the Committee will bear with me and whether the noble and learned Lord will exercise his usual patience if I tell him that I have come recently from a case which I believe is very much in point. Obviously, there will be no names mentioned or anything else that could identify those involved, although it was a case that was decided eventually by the Court of Appeal.

A child was brought to this country by a mother who was in breach of an order made by another country in regard to custody. The judge at first instance, on hearing the matter, took it for granted that he was bound to send the child back. The matter came before the Court of Appeal, and the Court of Appeal, having had a full report such as this amendment seeks, and having, indeed, had the opportunity of knowing from a welfare officer's report about the case and the child and having interviewed the child, said that the judge at first instance was wrong. "We have in this country", the court decided, "the duty to take as the paramount consideration the welfare of the child, and in those circumstances, and in spite of the custody order, we are going to say that, having seen the welfare officer's report, it is for the welfare of the child that the child should remain here with the mother".

That is a typical case, I would suggest, of what can happen—just as typical as the noble and learned Lord's definition of the case where the child has already been made the unwilling parcel and been brought over by some wealthy parent who can afford to breach another court's order and pay the fare of the child and also his own fare to come over here, or vice versa. All that we are asking is that, in regard to the decision that has to be made as to whether the child can be voluntarily persuaded to go back or whether the child should go back, the proper information is before the court in order that the child's wishes may at least be known. I would have thought that the noble and learned Lord, on reflection, might agree that this is not a breach of any convention; nor does it ruin the Bill. It enables the Bill and the convention to be properly carried out.

The Lord Chancellor

I must, I am afraid, try once more. The convention provides a method by which the court can require a report. That is Article 13. The amendment says that the court must in every case require a report. That is contrary to the convention. There are four other ways in which the convention is breached. But, really, the case is, I would have thought, plain almost beyond argument, that if you want to ratify a convention you must follow the words of the convention and not think of something better for yourself.

Lord Donaldson of Kingsbridge

It is occasionally useful for a layman to speak when lawyers are arguing. I have listened, as laymen always do, and I was convinced by each lawyer who argued. Looking back at the three, I wish to commit my colleagues here to the second lawyer who spoke, the noble and learned Lord, Lord Denning, who said that everything that was asked for in the amendment was desirable but that the convention already covered them. This, I believe, is perfectly true, and it takes lawyers to go on arguing about it. I should, however, like to add one point. I join in condemning the use of the expression "and/or". If, however, one looks at the amendment, one sees that those words are not there.

Lord Campbell of Alloway

On a point of principle, I support entirely the view that has been propounded by my noble and learned friend the Lord Chancellor. Your Lordships, on this type of Bill, cannot be concerned with the issue of whether Chapter II of Schedule 1 should have been drafted otherwise in relation to the convention, or, indeed, become concerned in any criticism of the convention as such or any enlargement of it. The obligations in this regard are solely based upon the Hague Convention. Take, for example, the analogous reciprocal enforcement of maintenance orders. We have our domestic statutes, our statutory instruments, and the system of reciprocity, as explained by my noble and learned friend, is carried into one's own law in implementation of the convention. This Bill is not an appropriate vehicle, as a matter of law, for carrying any amendment whatever, however desirable, however humanely attractive, whether substantive or procedural, into our own domestic law. This is, in my submission, a total misconception. If we approach our international obligations in that sort of spirit, we shall not be making any conventions, let alone ratifying them.

Lod Elwyn-Jones

I want to assure the noble and learned Lord the Lord Chancellor that we are not in a conspiracy to wreck the convention. He talks at us as if we were. We are trying our best to assist him in carrying out his duties as the central authority which has to perform certain duties. We have done no more than that. I do not see why this should have caused a rise in temperature, which I have not myself felt. That is all we are seeking to do. If the noble and learned Lord, with all his customary conviction, says, "Thank you very much, but I think I can fulfil all these duties quite happily without the assistance of the reports and other things suggested in the amendment", then so be it, I shall certainly not fight the matter further; but I think that he is making a mistake.

The Lord Chancellor

The last thing I would suggest is that the noble and learned Lord is engaged in a conspiracy. The trouble, I believe, is that like one of the babes in the wood, he is wandering about among the trees and being covered with leaves. I give him, nonetheless, an unequivocal assurance that if the Bill is passed I shall have all the powers to perform the duties imposed upon me by the convention without the amendment. I think that this is the assurance for which he asks.

Baroness Faithfull

I thank all noble Lords who have taken part in this debate. Before taking any action, may I ask my noble and learned friend the Lord Chancellor a point about which I am not clear? I am the last person who would wish to wreck the Bill. None of us wishes to wreck the Bill. None of us wishes not to subscribe to the convention. But if in certain parts of the convention it is laid down that the child should be consulted, how can this be done? We are anxious to support the convention and to support the Bill. I am well aware that perhaps the drafting of this amendment is not right, but before withdrawing this amendment may I ask for the help of the noble and learned Lord the Lord Chancellor as to how the children's wishes are to be known?

The Lord Chancellor

Through Article 13.

4.30 p.m.

Baroness Faithfull

Having received that somewhat short reply, I say again that I am most grateful to all noble Lords who have taken part in this debate. If I may, I shall study very carefully what has been said by every noble Lord, both legal and lay. I shall withdraw the amendment, but there is a possibility that I shall bring it forward in another form at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Judicial authorities]:

Baroness Faithfull had given notice of her intention to move Amendment No. 2: Page 2, line 31, at end insert— ("( ) In considering an application under the Convention, a court shall regard the welfare of the child concerned as the first and paramount consideration.").

The noble Baroness said: Having withdrawn the first amendment, I realise that I have many more amendments in the same spirit. I put down the second amendment to ensure that the principle on which all domestic courts must decide questions of custody is that the child's welfare is paramount and applies to applications made under the Hague Convention. I imagine that, having had a long legal debate, your Lordships would not want to go through the whole debate again. Therefore, as with the first amendment, I withdraw this amendment, with the proviso that I may bring it forward at the next stage.

[Amendment No. 2 not moved.]

Clause 4 agreed to.

Clause 5 [Interim powers]:

Baroness Faithfull had given notice of her intention to move Amendment No. 3: Page 2, line 37, at end insert— ("( ) Before giving such directions the court shall where practicable ascertain the wishes and feelings of the child and give them due consideration having regard to his age and understanding.").

The noble Baroness said: Again, I beg leave to withdraw this amendment and reconsider the position for the next stage.

[Amendment No. 3 not moved.]

Clause 5 agreed to.

Clause 6 [Reports]:

Baroness Faithfull moved Amendment No. 4: Page 2, line 43, at end insert ("including the wishes and feelings of the child concerned").

The noble Baroness said: I beg to move the amendment, but then beg leave to withdraw it, as before.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 and 8 agreed to.

The Lord Chancellor moved Amendment No. 5:

After Clause 8, insert the following new clause:

("Suspension of court's powers in cases of wrongful removal.

. The reference in Article 16 of the Convention to deciding on the merits of rights of custody shall be construed as a reference to—

1. (a) making, varying or revoking a custody order, or any other order under section 1(2) of the Children and Young Persons Act 1969 or section 95(1), 97(2), 143(6) or 144 of the Children and Young Persons Act (Northern Ireland) 1968 (not being a custody order);
2. (b) registering or enforcing a decision under Part II of this Act;
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3. (c)determining a complaint under section 3(5) or 5(4) of the Child Care Act 1980 or an appeal under section 6 or 67(2) or (3) of that Act;
4. (d) determining a summary application under section 16(8), 16A(3) or 18(3) of the Social Work (Scotland) Act 1968;
5. (e) making a parental rights order under section 104 of the Children and Young Persons Act (Northern Ireland) 1968 or discharging such an order, or giving directions in lieu of the discharge of such an order, under section 106(2) of that Act.").

The noble and learned Lord said: This looks enormous. I could, I think, with perfect conviction, assure your Lordships that these amendments—I shall enumerate them in a moment—are purely technical. The amendments to which I refer are Nos. 5, 13, 14, 15, 22, 24, 25, 26 and 27.

Amendment No. 13: Clause 20, page 7, line 38, leave out subsection (1) and insert—

("(1) Where it appears to any court in which such proceedings as are mentioned in subsection (1A) below are pending in respect of a child that—

1. (a) an application has been made for the registration of a decision in respect of the child under section 16 above (other than a decision mentioned in subsection (1B) below) or that such a decision is registered; and
2. (b) the decision was made in proceedings commenced before the proceedings which are pending,

the powers of the court with respect to the child in those proceedings shall be restriced as mentioned in subsection (1A) below unless, in the case of an application for registration, the application is refused.

(1A) Where subsection (1) above applies the court shall not—

1. (a) in the case of custody proceedings, make, vary or revoke any custody order, or any other order under section 1(2) of the Children and Young Persons Act 1969 or section 95(1), 97(2), 143(6) or 144 of the Children and Young Persons Act (Northern Ireland) 1968 (not being a custody order);
2. (b) in the case of proceedings on a complaint under section 3(5) or 5(4) of the Child Care Act 1980, determine that complaint;
3. (c) in the case of proceedings on an appeal under section 6 or 67(2) or (3) of that Act, determine that appeal;
4. (d) in the case of proceedings in respect of a summary application under section 16(8), 16A(3) or 18(3) of the Social Work (Scotland) Act 1968, determine that application; or
5. (e) in the case of proceedings on a complaint under section 104(1) of the Children and Young Persons Act (Northern Ireland) 1968 or on an application under section 106(2) of that Act, make a parental rights order under section 104 or, as the case may be, discharge or give directions in lieu of the discharge of such an order under section 106(2) of that Act.

(1B) The decision referred to in subsection (1) above is a decision which is only a decision relating to custody within the meaning of section 16 of this Act by virtue of being a decision relating to rights of access.").

Amendment No. 14: Page 8, line 9, leave out ("in the United Kingdom"). Amendment No. 15: Page 8, line 10, leave out subsection (4).

Amendment No. 22: Clause 27, page 10, line 42, leave out from ("proceedings") to end of line 2 on page 11 and insert ("in which an order within paragraph 1, 2, 4, 5, 7 or 8 of that Schedule may be made or in which any custody order may be varied or revoked").

Amendment No. 24: Schedule 3, page 24, line 27, at end insert—

("(iv) an order made under section 16(8), 16A(3) or 18(3) of the Social Work (Scotland) Act 1968;

(v) an order made in the exercise of any power under Part III of the Social Work (Scotland) Act 1968 to authorise any person to take a child to a place of safety, to issue, renew or recall a warrant for the apprehension or detention of a child, or to order the detention of a child in secure accommodation;").

Amendment No. 25: Page 24, line 39, at end insert—("(aa) section 49 of the Mental Health Act (Northern Ireland) 1961;").

Amendment No. 26: Page 25, line 4, at end insert ("(being, in the case of an order under section 144, an order corresponding to an order under section 95(1)(a) or (b) of that Act)").

Amendment No. 27: Page 25, line 6, at end insert ("(being an order corresponding to an order under section 95(1)(a) or (b) of the said Act of 1968)").

The first amendment in this group is to insert a new clause after Clause 8. I shall in due course ask the Committee to negative Clause 9, to amend Clause 20 by inserting a new subsection (1) and inserting subsections (1A) and (1B), amending subsection (3) and deleting subsection (4), and to amend Clause 27 and Schedule 3. They are all technical amendments, and I apologise for having to move them. They stem from the need to provide a new definition of the phrase "custody proceedings" and for the purposes of preventing decisions being made in such proceedings on the merits of the custody of children who are subject to convention applications. To allow decisions on the merits of custody to be taken when convention applications are pending would be contrary to the provision of both conventions, as I am advised.

The definition in Clause 27 is insufficiently wide to cover care proceedings, and so the definition is amended to encompass care proceedings. However, the effect of the new definition on Clauses 9 and 20, as they stand in the Bill, would be to catch all proceedings in which ordinary custody orders can be made. As a consequence, all proceedings in which a custody order could be made—such as divorce proceedings between the child's parents—would thereupon be stayed, or, in the case of Scottish decisions, sisted. It is undesirable for all such proceedings to be stayed or sisted when an application is made under either convention. The desired effect is achieved by the new clause and the amendments to Clause 20, which merely prevent custody and care orders being made.

The amendments to these clauses also prevent proceedings following parental rights resolutions or orders being determined pending a decision under either convention. The amendments to Schedule 3 reflect the amendments made to the definition of custody proceedings in Clause 27 and the amendments to Clauses 9 and 20. I apologise for the necessity for these amendments. They are, I am advised, essential, if technical, amendments. I beg to move Amendment No. 5.

Lord Denning

I know that my noble and learned friend says that these are technical amendments, but I venture to doubt it. I am not sure that he is not hoist with his own petard, as he was in the last discussions. We must remember that we are dealing with an international convention which took months and years to agree. All the proponents met at The Hague—the professors and everyone else. I knew them all. They hammered out, with their drafts and amendments and everything else, this final convention, which they all signed. In the case of many of them, once they ratified it, it became law. In this country it does not become law until we incorporate it in a statute; but in many of those countries they are bound by the laws as stated in the convention.

The question which is raised by this amendment is: what is the true interpretation of the convention itself? The convention has to be interpreted not only by our own courts but also by foreign courts, and they must give the same interpretation throughout. There was a great case which came to your Lordships' House. It was all about the Warsaw Convention. It was the case of Fothergill and Monarch Airlines 1981 Appeal Cases. The House of Lords laid down judicially that in finding out the meaning of a convention like this you do not confine yourself to the words, as we so often do in England, with English statutes, but look at what is called the travaux préparatoires. If need be, we look at all those drafts which went through when they were preparing the convention. We look at what the jurists have said about it, so as to see what is the true meaning of the words in the convention to be applied by all courts—ours and the others.

In this amendment we are dealing with the few words in Article 16 relating to the meaning of the words "the merits of rights of custody". They read: After receiving notice of wrongful removal or retention of a child, the judicial or administrative authorities of the contracting state to which the child has been removed, or retained, shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned". In other words, when deciding whether or not the child is to be returned, the courts, in whatever country, must return the child at once. They do not have to go into all the merits of the case, but they must return the child at once to the country from which he or she has been kidnapped. So here we have the words: shall not decide on the merits of rights of custody". When this Bill was first drafted it included provisions about the meaning of "rights of custody". The original Clause 9, which my noble and learned friend the Lord Chancellor seeks to oppose, said: Where custody proceedings … are pending … Article 16 of the Convention shall be construed as requiring the court … to stay or sist the proceedings in accordance with what is set out in the schedule.

In this amendment my noble and learned friend is departing from that meaning. He is saying that: The reference in Article 16 … to deciding on the merits of rights of custody shall be construed as a reference to this, that and the other. In other words, in this amendment, as in the previous clause, the legislature of this country is proclaiming the interpretation of the words: to deciding on the merits of rights of custody". The rights of custody are already defined at the beginning of the convention. I put it simply: this is an international convention. The words: the merits of rights of custody apply to the countries which are a party to the convention, and the French and English languages carry the same weight. That interpretation of those words is to be applied by all the courts of all the countries concerned—it is to have the same meaning.

However, this amendment tells those courts how to determine the meaning of those words. The meaning of those words is to be determined elsewhere and I do not think that it is for the legislature of this country to declare what meaning they should be given. In a way, I agree that this is a technical point, but we should go by the convention; all courts ought to follow the convention. We should not slip in special provisions as to interpretation unless they have been agreed by the convention. It is a technical matter but I say that we should stick to the convention—that is what we are bound to do. If it is to be recognised, we must stick to the convention and not put our own interpretation on the phrase—let that be interpreted by all the courts.

4.45 p.m.

Lord Mishcon

I ventured to disagree with the conclusion of the noble and learned Lord concerning the amendment moved by the noble Baroness, Lady Faithfull, although I could not quarrel with what the noble and learned Lord then said was the procedure normally adopted by our courts. It would have been a gross impertinence for me to have differed from him on such a subject.

However, I find myself in great difficulty, and one can have one's own thoughts as to how the layman must feel in relation to this Bill. As I understand it, the amendment of the noble and learned Lord the Lord Chancellor is not trying to define the merits or to deal with the question of any definition at all. The noble and learned Lord is simply saying that, because of the procedures in our country or the proceedings that might be taken in our country, these very words apply to the following procedures which are native to our shores. That is all that the noble and learned Lord has said.

If that were all I had to say, I would have left it to the noble and learned Lord the Lord Chancellor (in the hope that he agreed with me) to say in very much clearer language than I usually employ. Unfortunately, I cannot leave it at that because the noble and learned Lord the Lord Chancellor reprimanded the movers of the previous amendment because they were endeavouring to alter the convention. He said that they could not alter the convention or anything about it because, if they did, they would make his Bill meaningless.

Before Clause 9 is abandoned, I shall look at it because the noble and learned Lord—I am sure with very good reason—did not refer specifically to what Clause 9 said. Clause 9(3) originally said: Nothing in this section shall prevent the exercise by any children's hearing, court or justice of the peace in Scotland of any power under Part III of the Social Work (Scotland) Act 1968 to authorise any person to take a child to a place of safety, to issue, renew or recall a warrant for the apprehension or detention of a child, or to make an order for the detention of a child in secure accommodation". Of course, that was to vary what the convention says one can or cannot do. I understand very well why Clause 9(3) no longer appears in the new Clause 9. However, if we were making an error in thinking we could avoid or vary the wording of the convention—and, with great deference and respect, I still do not think we were doing so and, as the noble Baroness said, we may have to return to this at another stage—we ought to be forgiven because this Bill, prior to the amendment now before us, was doing precisely that of which I believe we were not guilty.

Lord Morris

As a layman, perhaps I may leap in here. With respect, I would suggest that the proposal of the noble and learned Lord, Lord Denning, that Amendment No. 5 is an attempt to re-interpret Article 5 which covers the interpretation of "rights of custody" just cannot be right. In his reference to Clause 9 (3), the noble Lord, Lord Mishcon, forgot Clause 9 (1) of the Bill which says: Where custody proceedings … are pending". I believe that that is quite an important point and I believe that it has an application with regard to the reference to the Social Work (Scotland) Act 1968. Whether or not that comment is of any use, I shall be willing to learn.

Lord Donaldson of Kingsbridge

Before the noble and learned Lord the Lord Chancellor replies, may I ask what "sisting" means?

The Lord Chancellor

Perhaps I may answer for my noble and learned friend the Lord Advocate that "sisting" means the same as "stay", but the Scots have a learned language of their own in order to keep out the English lawyers! I do not know whether anyone else wants to speak about this, but I must plead not guilty to being hoist by my own petard. I am getting out of being hoist by my own petard, as the noble Lord, Lord Mishcon, suggested I was. The object of this elaborate amendment is to put right a mistake in the Bill and not to put right a mistake in the convention. I realise that the noble Lord, Lord Mishcon, was really leading up to a leg-pulling exercise based on the previous amendment, and I take that in very good part.

Baroness Faithfull

May I ask the noble and learned Lord the Lord Chancellor to explain one small point? Amendment 5, paragraph (a), mentions the Children and Young Persons Act 1969. Should there not also be a reference to the Mental Health Act as regards the guardianship and hospital orders? This is a small point but I wonder whether they should be included.

The Lord Chancellor

It is a small point. I think the answer is no, but I will ask those advising me to correct me if I am wrong. I very much objected to having to put right what ought to have been in the Bill at first, but I have done my best and obviously, as the defect was brought to my attention, I had to put it right. I must apologise once more to the Committee. I will take on board my noble friend's point, but I will not attempt to answer it off the cuff.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Jacques)

The Question is, That Clause 9 stand part of the Bill? The Lord Chancellor.

The Lord Chancellor

No; it is for you to say, "The Question is, That Clause 9 stand part of the Bill?" I shall then say "Not content" when the Question is put.

Lord Mishcon

I shall say how content I am with what the noble and learned Lord said.

The Deputy Chairman of Committees

This should be easy.

Clause 9 negatived.

Clause 10 [Rules of court]:

[Amendment No. 6 not moved.]

Clauses 10 to 14 agreed to.

[Amendment No. 7 not moved.]

Clause 15 [Recognition of decisions]:

[Amendments Nos. 8 and 9 not moved.]

Clause 15 agreed to.

Clause 16 [Registration of decisions]:

[Amendments Nos. 10 tand 11 not moved.]

Clauses 16 to 18 agreed to.

Clause 19 [Interim powers]:

[Amendment No. 12 not moved.]

Clause 19 agreed to.

Clause 20 [Priority between Part II proceedings and custody proceedings]:

The Lord Chancellor moved Amendment No. 13:

[Printed earlier: col. 1166.]

The noble and learned Lord said: I believe I have already spoken to this. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 14:

[Printed earlier: col. 1166.]

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 15:

[Printed earlier: col. 1166.]

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clauses 21 to 23 agreed to.

Clause 24 [Rules of court]:

[Amendment No. 16 not moved.]

Clause 24 agreed to.

Clause 25 [Termination of existing custody orders, etc.]:

The Lord Chancellor moved Amendment No. 17: Page 10, line 6, after ("child") insert ("other than a decision mentioned in subsection (1A) below)").

The noble and learned Lord said: If I may, I shall also move Amendments Nos. 18, 19, 20 and 21:

Amendment No. 18: Page 10, line 8, at end insert—

("(1A) The decision referred to in subsection (1)(b) above is a decision which is only a decision relating to custody within the meaning of section 16 of this Act by virtue of being a decision relating to rights of access.

(1B) In section 17 of the Children and Young Persons Act 1969 (termination of supervision orders) at the end there shall be added— (c) in the case of an order made by virtue of section 1 of this Act, if an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child.".

(1C) In Schedule 3 to the Children and Young Persons Act (Northern Ireland) 1968 after paragraph 2 there shall be inserted— 2A. A supervision order made by virtue of section 95(1)(d) or, in the case of a child or young person committed to the care of a fit person under Part V, section 143(6)(d) or 144 shall cease to have effect if an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child".").

Amendment No. 19: Page 10, line 15, leave out from ("(d)") to end of line 18 and insert ("an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child".").

Amendment No. 20: Page 10, line 23, leave out from ("(e)") to end of line 26 and insert ("an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child."."). Amendment No. 21: Page 10, line 30, leave out from ("if") to end of line 33 and insert ("an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child".").

These amendments to Clause 25 are again due to technical defects in the Bill. They arise from two matters: one concerning foreign decisions on access registered in a United Kingdom court and the other concerning supervision orders made in care proceedings. It is not clear that custody orders as defined in Clause 27(1) will not cease to have effect under Clause 25(1) if the decision on rights of custody, which has been registered under Clause 16, is only a decision relating to rights of access. By Article 11(1) of the European Convention—that is to be found in Schedule 2: Decisions on rights of access and provisions relating to custody, which deal with the rights of access, shall be recognised and enforced subject to the same conditions as other decisions relating to custody".

As the Bill now stands, if the decision relating solely to access is registered under Clause 16, Article 11 might be construed to mean that any custody order would cease to have effect under Clause 25(1)(b). However, where the registered decision relates solely to access, it will not conflict with the internal United Kingdom custody order and it would be wrong for this order to cease to have effect, which could only mean the re-litigation of the question of custody. For example, an order as to access made in France would not conflict with an English custody order and it would be wrong to allow, by the operation of the convention, the former to nullify the latter. The clause is amended to put this beyond doubt. Furthermore, parental rights resolutions or orders are not included within the definition of custody orders or proceedings. Amendments are made by subsection (2), (3), and (4) to the respective United Kingdom legislation relating to parental rights resolutions or orders so that, on the making of an order for the return of a child under Part I of the Bill or the registration of the custody order under Part II, the parental rights resolution will cease to have effect. These three subsections are amended so as to prevent parental rights resolutions or orders ceasing to have effect where a decision which relates soley to access is registered under Clause 16.

Although an order made under Parts I or II of the Bill will generally frustrate the performance of a supervision order, where the supervised person is required under Section 12(2) of the 1969 Act to live at a specified place, the making of an order under either of the conventions may give rise to conflict between the requirement under a supervision order to live at a specified place and an order for the child's return made under the Bill. Therefore subsection (1B) amends Section 17 of the 1969 Act by providing that on the occurrence of the event under Clause 25 of the Bill any supervision order made under Section 1(2) of the 1969 Act in respect of the child will terminate.

An equivalent Northern Ireland provision to the one contained in subsection (1B) is contained in subsection (1C). The amendments other than (1B) and (1C) therefore are made because there is some doubt as the clause is presently drafted whether the decisions which related solely to access which are registered under Clause 16 will terminate custody orders. Such a termination would be contrary to the purpose and spirit of the European Convention. The amendments remove any such doubt in respect of custody orders and parental rights resolutions or orders. Doubt is also removed by the insertion of subsections (1B) and (1C) on the effect of an order made under either convention requiring the child to be returned in relation to a supervision order which contains requirements that a child shall reside in a specified place or with a specified person. This is ensured by ensuring that the supervision orders will be terminated on the making of an order under either convention except where, in respect of the European convention, the registered decision relates solely to access. I beg to move Amendments 17, 18, 19, 20 and 21.

On Question, amendments agreed to.

Clause 25, as amended, agreed to.

Clause 26 agreed to.

Clause 27 [Interpretation]:

5 p.m.

The Lord Chancellor moved Amendment No. 22:

[Printed earlier: col. 1166.]

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

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

Remaining clause agreed to.

Schedule 1 [Convention on the Civil Aspects of International Child Abduction]:

Lord Meston moved Amendment No. 23: Page 16, line 19, at end insert—

("Article 20

The return of the child under the provisons of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.").

The noble Lord said: In moving this amendment at least I cannot be accused of having added something to the convention which was not there originally. The purpose of the amendment is obvious: it is to cure the strange omission of Article 20 of the Hague Convention from the schedule. It is curious, I would suggest, that this country signs the convention as a whole but ratifies it in part, particularly when what is left out is apparently both important and sensible. Having signed the convention as a whole without reservation, it would be right, in my submission, to say that this country has an obligation to abide by the convention as a whole and not seek to restrict its obligations by leaving out parts which, for one reason or another, this country does not find suitable.

At Second Reading, the point was raised and it was explained, as I understood it, that such a statement of general principle as is contained in Article 20 is inappropriate in a United Kingdom legal text and also that, despite its omission, the courts would nevertheless have regard to Article 20. I have to say that I am unable to see what is inappropriate in a United Kingdom legal text in the reference to fundamental principles relating to the protection of human rights and fundamental freedoms. Furthermore, I question whether the courts would have regard to Article 20 if it is not there. On the contrary, the courts are most likely to say that they will not have regard to it because Parliament, for one reason or another, has deliberately left it out and therefore must have done so for a reason. The statute therefore would prevail over the convention.

I suggest that it is wrong to deny our courts the valuable safeguard contained in Article 20. It would apply in only a very limited number of cases—for example, in relation to political refugees and people of that sort. It is the nearest thing there is in this convention to what could be called "a public policy exception" and it would be wrong for the courts to send children back to a country where, for example, the abductor or the alleged abductor would either be sent straight to prison without trial or would be denied a fair hearing. This article, I would suggest, is not too wide to provide a loophole or a means of delay in these difficult cases in which, as I have already suggested this afternoon, time is of the essence.

The worst that could be said about this article is that there is no harm in having it included and it would apply in only a very few cases; but I would suggest there would be a positive value to the courts in having it included. I beg to move.

Lord Denning

May I support this amendment on the principle which I have been seeking to enunciate so far? When we agree to an international convention and other countries do too, when they ratify it it becomes part of their law without having to go through any legislative machinery. It is only in this country, or perhaps just a few others, that it has to be implemented by a statute. When we do that, in order for it to be binding we should include all of it and implement the convention as a whole—not take out bits or say that we will interpret bits in this way or that. We ought to implement it as a whole because it is on that condition that the other countries have all agreed: they have agreed to the convention on the basis that everyone else has also agreed. Is it going to be open to us to pick out bits to leave out or to give our own interpretation to this part or that? It seems to me wrong, as a matter of legislative principle, that we should omit, for instance, one of the clauses in the convention which has been internationally agreed and agreed by everybody. Therefore I would support the amendment on the basis of supporting the convention.

Lord Campbell of Alloway

This amendment introduces, inevitably, the jurisprudence of the Court and the Commission into our own domestic law. It is excluded at the moment. Whether it is right or wrong is a wider subject, but at the moment it is settled beyond all doubt. Although the noble and learned Lord, Lord Denning, at one time made a brave attempt to introduce to some degree that body of jurisprudence into our domestic law, this failed affirmatively and definitively in the decision of your Lordships' Appellate Committee in Fernandes. It is settled that courts may not have regard to such jurisprudence.

I support the spirit of the amendment, for the reason given by the noble and learned Lord, Lord Denning. Also, on the wide principle, I would think the time is beginning to come when the jurisprudence ought to be part of our domestic law. I wonder whether my noble and learned friend the Lord Chancellor can give some assistance on that aspect of the matter, which I find rather difficult.

The Lord Chancellor

The noble Lord, Lord Meston, raised this question on Second Reading and my noble and learned friend who is now sitting beside me gave what I thought was a wholly adequate answer to it. May I say that I think the noble Lord, Lord Meston, inadvertently misled the Committee when he said that we were not ratifying the whole of the convention. We are ratifying the whole of the convention, and this Bill enables us to do so. This is what we are going to do. The point between us is really one of draftsmanship. My noble and learned friend on Second Reading, at col. 261 on 5th March, said in answer to the noble Lord, Lord Meston: I wish to make it clear at the outset that its omissions [of Article 20] 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 arises in which the text is relevant, then judges in the courts in the United Kingdom—the High Court in England, or the Court of Session in Scotland—can of course have regard to it. The draftsmanship advice which we have received is quite unequivocal on this point, and on a matter of draftsmanship I must accept this advice unless the contrary is quite clearly the case. I am afraid that neither the noble Lord, Lord Weston—I used to spend my childhood at Weston-super-Mare and it was a Freudian slip; I mean the noble Lord, Lord Meston—nor my noble and learned friend on the Cross-Benches have convinced me that the draftsman is wrong.

Article 20 of the convention provides that the return of a child may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms". The article is intended to apply only to such fundamental freedoms which are already accepted by and embodied in the law of the state in question. Different states have different ways of embodying things of this kind. We have our own way. It becomes doubtful, so I am advised, whether there is any such existing fundamental provision of United Kingdom law which is not already covered by the exceptions embodied in other articles.

So the draftsman, as I at present think quite correctly, omitted this article from Schedule 1 on the ground that it is wrong to incorporate a provision in a United Kingdom statute, the meaning and effect of which would at least be uncertain. If the noble Lord can indicate to what principles of United Kingdom law the article applies, and what precise effect would ensue from enacting Article 20 as United Kingdom law, I will, of course, consider it. But, with respect, I think that the noble Lord has perhaps omitted to notice exactly how this schedule occurs in the statute. Clause 12(2) states: Subject to the provisions of this Part of this Act, the provisions of that convention"— that is, the European Convention— set out in Schedule 2 to this Act (which include Articles 9 and 10 as they have effect in consequence of a reservation made by the United Kingdom under Article 17) shall have the force of law in the United Kingdom". If there is, in fact, no principle separate from the others which would have the force of law in the law of the United Kingdom, the draftsman must have been right to omit it from his schedule which is married to Clause 12(2) of the Bill, despite all that my noble and learned friend on the Cross-Benches may have said. If there is such a law, I shall be glad to be told what it is. The noble Lord, Lord Meston, has not done so yet. I am afraid that I have got into a muddle again. I should have referred to Clause 1(2) and not to Clause 12(2). I hope that the noble Lord, Lord Meston, and the rest of the Committee will forgive my cross-reference being wrong. But the point is exactly the same. We are talking about the way in which the convention, the whole of which we are ratifying, has the force of law in the United Kingdom.

Despite the support which he has received from my noble and learned friend on the Cross-Benches, the noble Lord, Lord Meston, has not convinced me at the moment that the draftsman is wrong. It is a matter of draftsmanship, and, although we all of us fancy ourselves as draftsmen, I am old enough and wise enough to know that the parliamentary draftsman is usually better than I am. But if the noble Lord, Lord Meston, can tell me where there is something in the law of the United Kingdom where Article 20 can expressly bite, I shall certainly take it into account and see what I am advised about it, because I do not think there is any question of principle at all between us.

5.15 p.m.

Lord Campbell of Alloway

May I raise one quick specific point which worries me? Let me take Article 8 of the Convention of Human Rights, on respect for family life, which is usually in their jurisprudence construed against Article 2 of that Convention. As I understand the position as a result of Fernandes, which I was in, you simply cannot have regard to that jurisprudence because our courts say that you cannot. The draftsman was totally right, in view of Fernandes, to exclude it, for the very reasons which have been given by my noble and learned friend the Lord Chancellor. But where does that leave us? I do not know and perhaps I am making a non-point.

The Lord Chancellor

I do not think that my noble friend is making a non-point at all. I think that he is raising a difficult point of statutory interpretation precisely because, in practice, as my noble and learned friend on the Cross-Benches said in connection with this point a little earlier, it is the practice nowadays of our courts to look at international conventions by which we are bound in order to construe our existing statutory law. So I do not in the least think my noble friend is making a non-point.

What I do think is that he is discussing something in rather a specialised context which raises questions of statutory interpretation. The best thing I can do is to think about Fernandes—with which he is evidently more familiar, for obvious reasons, than I am, caught upon my feet—and write him a letter. If he wants to raise it at a later stage on the Floor of the House, I shall be only too glad to do the best I can. But I do not think there is anything between any of us. We are bound by Article 20. The only question is whether the draftsman was right to leave it out of Schedule 1, and, as at present advised, I am following his advice.

Lord Mishcon

I wonder whether I may make one small contribution, in view of the fact that the noble and learned Lord is considering the whole matter. One of the things that worry me is that anybody reading this Bill when it becomes an Act will, on looking at the wording of subsection (2) of Clause 1, take it for granted that something has gone wrong with his copy of the print of the Act, because he will go through it and find there is an Article 19 and a 21, but no 20. Not having had the benefit of the noble and learned Lord's explanation before him, he will either blame Her Majesty's Stationery Office which has printed his copy of the Bill wrongly, or blame Parliament for having done something rather foolish in passing a Bill which leaves out Article 20 of the convention.

I therefore wonder whether, if the noble and learned Lord comes to the conclusion, as I believe he will, that we cannot have Article 20 of the convention in the schedule, he could consider wording subsection (2) of Clause 1 in the following way: Subject to the provisions of this Part of this Act, the specific provisions of that Convention set out in Schedule 1 to this Act shall have the force of law in the United Kingdom". Anyone carefully reading those words will see that it is only the specific provisions contained in the schedule which will have the force of law in the United Kingdom in the statute. I throw that out for what it may be worth.

The Lord Chancellor

I am very grateful indeed to the noble Lord, Lord Mishcon, and what he says will be considered. I am very grateful to him for his suggestion. I have not the slightest idea what the answer will be.

Lord Morris

While we are at this point, it is also true of Article 1 and Article 2—they are not there—and Article 20, about which we have been speaking; and Article 25, which is missing from Schedule 1.

Lord Meston

I am grateful for all those observations and indeed for the support I have had. I apologise if I inadvertently referred to our not ratifying the convention as a whole. We may be ratifying the convention as a whole, but we are not seen to be enacting the convention as a whole. My first reaction was that of the noble Lord, Lord Mishcon, that some error had taken place and something had been left out by mistake. I would indeed support his suggestion as to an appropriate amendment to Clause 1(2) to which we have been referred.

I am not an expert in statutory interpretation but I know that when a judge sees that Parliament has deliberately left something out, the judge concludes that Parliament has done so so that the judge can disregard what has been left out. I was pressed for some indication of examples that might be covered by Article 20 and I had hoped that I had already made that clear. It is to deal with a situation when a court may be compelled to send an abductor and child back when that abductor will have no right of access to the courts in the requesting state.

That brings me on to a point which I think was made by the noble Lord, Lord Campbell—the reference to fundamental principles relating to the protection of human life and so forth. The reference in the article is to the fundamental principles of the requested state and that seems to make it clear that the reference is not to international conventions or declarations to which we are not party but really to our own fundamental principles which should be applied and should be seen to apply in these cases. But having said all that, I would wish further to consider the matter and not press it at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Schedule 2 agreed to.

Schedule 3 [Custody orders]:

The Lord Chancellor moved Amendment No. 24:

[Printed earlier: col. 1166.]

The noble and learned Lord said: I have already spoken to this amendment and Amendments Nos. 25, 26 and 27.

[Printed earlier: col. 1166.]

I beg to move these amendments en bloc.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

House resumed: Bill reported with the amendments.