HL Deb 22 April 1986 vol 473 cc1078-87

3.5 p.m.

The Lord Chancellor

My Lords, I rise to move that this Bill be now read a second time.

The length of the Long Title attracted a certain amount of amusement from your Lordships on the introduction and I shared in the laughter that followed. However, the Bill neatly and succintly gives effect to all that is promised in the Long Title.

The first three parts of the Bill give effect to three separate Law Commission Reports, Nos. 132, 137 and 138 of the English series, the last of which includes No. 91 of the Scottish series. Each deals with a distinct area of family law. The fourth part deals with miscellaneous matters. In essence, therefore, this is purely and simply a law reform Bill.

Part I provides a scheme for the enforcement of custody orders within the United Kingdom in order thereby to combat the growing and serious social problem of child abduction with which we dealt in the last Session in its international application. The Government are concerned to solve this problem and the Bill is further proof of such a resolve. Part I of the Bill replaces with a uniform set of rules the present multiplicity of jurisdictional bases under which the courts determine custody.

During the last two parliamentary Sessions the Child Abduction Act 1984 and the Child Abduction and Custody Act 1985 have reached the statute book. The 1984 Act dealt with the criminal aspects of child abduction. The 1985 Act, which it is planned to bring into force this summer, will enable the United Kingdom to ratify The Hague and the European Conventions and provide a civil remedy for parents whose children have been abducted abroad. Part I of the Bill complements the two earlier Acts by dealing with abducting within the United Kingdom and its several jurisdictions. It will carry out the recommendations of the two Law Commissions—The English and the Scottish—contained in their report entitled Custody of Children—Jurisdiction and Enforcement within the United Kingdom

Part I proposes to achieve this in two stages. The first stage provides a uniform set of jurisdictional rules under which the courts will determine custody disputes. The second provides a procedural method whereby a custody order may be recognised and enforced throughout the United Kingdom. The Bill does not change the test for custody. As your Lordships will know, that test has been in force for quite a long time and is uniform throughout the United Kingdom. That test determines custody by having regard to the welfare of the child as the first consideration. No one, I think, would now question the validity of that test.

Part I of the Bill will ensure that custody orders made in one part of the United Kingdom upon this test will automatically be enforced in the others. No longer will it be necessary for a parent whose child has been abducted from one part of the United Kingdom to recommence custody proceedings in the part of the United Kingdom to which the child has been taken. The threat that the second court will make an order different from the first is thus removed. Part I provides a simple enforcement procedure to ensure that the child is returned to the person rightly having custody. That part will also ensure that custody disputes will be determined in the place with which the child has the closest connection.

Before I turn to deal with the detailed provisions, I have one general point to make. In England and Wales and in Northern Ireland, the courts have jurisdiction to make custody orders in respect of children up to the age of 18. That distinction is preserved in the jurisdictional rules contained in Chapters II, III and IV of Part I of the Bill. But Chapter V, which deals with recognition, registration and enforcement, only permits enforcement throughout the United Kingdom when the child is under 16. The Law Commissions took the view that 16 should be the age adopted for the purposes of Chapter V. It was thought that it would be unsatisfactory to require a Scottish court to recognise and enforce custody orders made in the other parts of the United Kingdom relating to persons over 16 when the Scottish court could not itself make such an order. Thus, the Scots have once more achieved a Bannockburn and not suffered another Flodden.

Clause 1 defines "custody order". For the purposes of this part of the Bill it includes any orders made in proceedings commenced after that part comes into force that falls within the terms of subsection (1). However, for the purposes of Chapter V, Clause 32 widens the definition to include those orders made before the commencement of Part I that are still in force and that would have fallen within the definition of the earlier clause had they been made after commencement. The widened definition is necessary to ensure that those orders that fall within the enlarged definition of Clause 32 can be recognised, registered and enforced under Chapter V in the same way as orders falling within the narrower definition of Clause 1.

As I have already mentioned, Chapters II and IV inclusive replace the present multiplicity of jurisdictional rules with a uniform set of rules under which the courts can determine custody. The complexity of the present rules may best be illustrated by reference to the Guardianship of Minors Acts 1971 and 1973 in England and Wales. Under those Acts, the High Court has jurisdiction where the child is a British subject or is resident or physically present in England or Wales. A county court has jurisdiction if the respondent or applicant or child resides within its area, but if a respondent resides in Scotland or Northern Ireland the county court loses the jurisdiction unless the originating process can be served on the respondent in England and Wales.

Similar rules to those applicable to the county courts apply to the magistrates' courts. In addition, courts in the other parts of the United Kingdom may have jurisdiction to determine the question of custody of a child at the same time as the court is determining the application of the Guardianship Act in England and Wales. That labyrinth of jurisdictional rules does nothing to benefit the interests of the child or the other parties to the dispute.

Chapters II to IV of Part I therefore replace them by providing that throughout the United Kingdom jurisdiction will be founded, first, on the jurisdiction in divorce, nullity and judicial separation proceedings; next, on the habitual residence of the child; thirdly, on the basis that a court should act because in an emergency a child needs to be protected; and, lastly, on the physical presence of the child. Thus the scheme contained in those chapters accords primacy to the divorce jurisdiction. Therefore, the court that dissolves the marriage of the parents will determine the question of custody in preference to a court that could assume jurisdiction on one of the other bases. The scheme also provides that a court having jurisdiction may decline to determine the question of custody if that court considers it more appropriate for another court to determine the issue.

The new rules should almost eliminate the possibility that courts situated in more than one part of the United Kingdom should have concurrent jurisdiction to make custody orders, and they should ensure that the judicial forum with which the child has the closest long-term connection will determine that question.

Chapter V provides the procedural means whereby a custody order may be recognised, registered and enforced throughout the United Kingdom. It is those provisions that will assist the prevention of child abduction, and obviate the need for fresh custody proceedings to be commenced for the return of the child in that part of the United Kingdom to which that child has been taken. Clause 25 provides that a United Kingdom custody order made in respect of a child under the age of 16 will be recognised throughout the United Kingdom. Clause 26 relates solely to Scotland.

Clause 27 provides the procedure for the registration in the High Court in England and Wales or Northern Ireland, or in the Court of Session in Scotland, of a custody order made in another part of the United Kingdom. By virtue of Clause 29, a registered custody order will be enforceable by the registering court as if it were its own order, made in accordance with its own procedure. That court will be able to give interim directions, or stay, or, to use the Scottish expression, sist the enforcement proceedings where appropriate.

Chapter VI contains provisions to assist the courts throughout the United Kingdom in enforcing custody orders. They will not only ensure that an abducted child is returned to the person rightfully entitled, but should also act as a deterrent to all who contemplate abduction. Clause 33 gives the courts power to order a person to disclose information about a child's whereabouts. Clauses 34 and 37 respectively give the courts power to order the recovery of a child and the surrender of passports.

Finally, on Part I, I should like to draw your Lordships' attention to Clause 43, which will enable Part I to be extended by Order in Council to the Isle of Man, the Channel Islands, or any colony. Any extension of the scheme set out in Part I to those territories will be another means to combat child abduction.

I now come to Part II of the Bill. As I have said, each part deals with a different aspect of family law. Part II gives effect with modifications to the recommendations of the two Law Commissions contained in their report entitled Recognition of Foreign Nullity Decrees and Related Matters. The Law Commissions proposed that the recognition of foreign nullity decisions should be assimilated to the grounds of recognition of divorces and legal separations now contained in the Recognition of Divorces and Legal Separations Act 1971. Many of your Lordships may wonder why the recognition of nullity decrees was not dealt with in the 1971 Act. The reason was as follows.

That Act gave effect to the 1970 Hague Convention on the recognition of divorces and legal separations. At that time, it was hoped that a further Hague Convention would deal with the recognition of foreign nullity decrees. Unfortunately, that convention has not materialised. The Law Commissions have therefore turned to that area because, as they say in their report, the law is in an imperfect state. The rules for recognition are uncertain and complex. The assimilation of the rules for recognition of nullity decrees to those for the recognition of divorces and legal separations is therefore provided for in Part II of the Bill.

The effect will be a re-enactment of the provisions of the 1971 Act but with a number of modifications. Clause 44, which follows the recommendations of the Law Commissions, provides that all decrees of divorce, nullity or judicial separation granted by a court of civil jurisdiction in the British Isles will be accorded automatic recognition in every other part. The recognition of overseas divorces, annulments and legal separations is governed by Clauses 45 to 50, and in dealing with those clauses I fear that I cannot avoid a certain degree of technicality.

A key expression in the 1971 Act is the phrase "judicial or other proceedings". That is borrowed from the English text of Article 1 of the Hague Convention, and in the following 15 years of case law the phrase has come to include, in addition to judicial proceedings as we know them, quasi-judicial proceedings and other proceedings involving some agency, lay or religious, of the relevant state. In the 1971 Act, divorces and legal separations obtained by means of judicial or other proceedings are contrasted with divorces or legal separations obtained in other informal ways but which, under Section 6 of the 1971 Act, are in some circumstances nevertheless recognised in the United Kingdom.

In Part II of the Bill, the word "proceedings" is defined by Clause 54(1) as meaning judicial or other proceedings, and the same sharp distinction is drawn between the recognition of overseas divorces, annulments or legal separations obtained by means of proceedings and those obtained otherwise than by means of proceedings. But, as I shall now show, the consequences flowing from this distinction are not precisely the same as in the 1971 Act, or as recommended by the two Law Commissions.

Clause 46(1) provides that foreign decrees obtained by proceedings will be recognised if they are effective under the law of the country in which they were obtained, provided that either party was, at the date of the commencement of proceedings, habitually resident in, or domiciled in, or a national of that country. This follows the recommendations of the Law Commissions.

But Clause 46(2) adopts a more restrictive approach than that recommended by the Law Commissions in relation to overseas decrees granted otherwise than by proceedings. Such divorces include, for example, the bare Moslem talaq, and certain Hindu and Japanese consent divorces. Many African and Asian countries also have such divorces. The Law Commissions recommended that such informal divorces should be recognised on the same basis as those divorces obtained by judicial or other proceedings. We cannot accept this wide recommendation. There are public policy elements here. Such divorces are informal, arbitrary and usually unilateral. More importantly, there is often no available proof that what is alleged to have taken place has taken place at all. In addition, these divorces are almost exclusively obtained by men and therefore discriminate against women. Finally, particularly where the wife is resident abroad, such divorces provide little or no financial protection for the wife and family.

However, as I have said, Section 6 of the 1971 Act already provides grounds for the recognition of these divorces and it would be wrong not to continue to accord recognition on a similar basis. Clause 46(2), therefore, provides for a more restricted recognition of such decrees. One of the aims of this is to give greater protection to wives resident in the United Kingdom whose husbands have obtained an informal divorce abroad. It would be wrong to deny a wife living here recourse to the protection of our own courts.

A divorce obtained otherwise than by way of judicial or other proceedings will be recognised if it is effective in the country in which it was obtained and if at the date on which the divorce was obtained each party was domiciled in that country. Such a divorce will also be recognised if only one party was domiciled in the country in which it was obtained and the divorce is recognised under the domiciliary law of the other party. No divorce will be recognised if at least one of the two parties was habitually resident in the United Kingdom for at least one year before the divorce was obtained.

Finally, Clause 51, which lists all the grounds on which a court has a discretion to refuse recognition, includes in subsection (3) the discretion to refuse to recognise one of these informal divorces where there is no official certificate that it is effective under the relevant law. There is also a public policy ground, which can be found in subsection (3).

I have dealt at some length with Clauses 44, 46 and 51. For the rest it may suffice to say that the other clauses in this part serve to amplify the policy I have described.

Part III carries out the recommendations of the English Law Commission contained in its report Declarations in Family Matters. This part extends only to England and Wales. At present declarations as to status can be made either under Section 45 of the Matrimonial Causes Act 1973 or under the inherent jurisdiction of the High Court. The Law Commission considered that Section 45 contained outdated complexities and felt that there was an uncertainty between the relationship between the statutory and discretionary powers to grant declaratory relief. The Law Commissions recommended, that a new legislative code, based on consistent principles, should replace the existing hotchpotch of statutory and discretionary relief". Part III contains this new code. Clauses 55, 56 and 57 provide, respectively, power to grant declaratory relief in matters of matrimonial status, legitimacy and legitimation and adoption. These clauses also lay down jurisdictional rules as to who should be able to apply. Procedural safeguards such as the intervention of the Attorney-General in declaratory proceedings and the form of the declaration are provided for in Clauses 58 to 60.

Clause 61 abolishes the right to petition for jactitation of marriage, as some noble Lords will know. This procedure takes the form of a petition which claims a declaration that the parties are not in fact married, coupled with an injunction restraining the respondent from falsely claiming that he or she is married to the applicant. Several such proceedings in the past have been brought from within your Lordships' House. Prior to Lord Hardwicke's Marriage Act 1753, which first made a formal ceremony of marriage compulsory in England and Wales, thus forbidding clandestine unions by hedge-priests, and others, this remedy was important. The informality of marriages before 1753 gave rise to much doubt or dispute as to whether or not a marriage had taken place. The requirement of a formal ceremony of marriage after 1753 saw a rapid decline in the use of this remedy. The last known petition for jactitation of marriage was as recently as 1977; but it is a remedy which we believe can now be consigned to history.

Clause 62 repeals the Greek Marriages Act 1884 which was designed to validate 36 marriages celebrated in England between 1836 and 1837 between members of the Greek Orthodox Church. For all practical purposes I believe this Act is now spent and may be safely repealed.

Finally, I turn to Part IV of the Bill which is aptly described as "Miscellaneous and General". Clause 64 enlarges the rule-making powers of the Matrimonial Causes Rule Committee. A greater degree of flexibility, in particular the ability to distinguish between different cases and different circumstances, will in future be possible. Clauses 65 to 67 amend the enactments dealing with international child abduction in ways, mainly technical, which will nevertheless make them more effective.

Alas, I am only too conscious of the length of my explanation. The diversity and complexity of the provisions of the Bill made this unavoidable if I were to explain it fairly. In conclusion, all I would say is that, for the variety of reasons I have outlined above, this Bill is an important law reform measure which I commend to your Lordships. I hope that it will prove quite uncontroversial. My Lords, I beg to move.

Moved, That the Bill be now read a second time.—(The Lord Chancellor.)

3.27 p.m.

Lord Elwyn-Jones

My Lords, the House is grateful to the noble and learned Lord for taking us so felicitously through this important family law reform Bill. It deals largely with the unhappy questions that arise when a father and mother divorce each other and there then follows the great fight over custody.

I remember one occasion when it fell to me as Attorney-General to exercise the duty of calling for the intervention of the Queen's Proctor—we have now done away with that, thank goodness!—and the note I had included a statement by the husband who said, "My wife and I would have been divorced a long time ago but for the children—she won't have them and I won't have them."

However, that is a rare event and the normal consequence, alas, of the breakdown of marriage is a terrible fight over custody of the children where civilised arrangements and relationships have broken down. These circumstances have given rise to what the press have come to call "tug of love" cases; where there is this terrible battle as to who is to have custody. I am not aware that love is a predominant feature of the operation. There is a terrible attempt at in-fighting, calling in the assistance of the courts in the process. This useful measure of law reform at any rate limits the opportunities for mischief and moves towards the importance of a civilised settlement of disputes.

As the noble and learned Lord has indicated, the Bill is largely a product of the Law Commissions. It is an admirable illustration of the debt which the public at large and Parliament and the Government in particular owe for the work of the Law Commissions and the high quality of that work.

With one significant and unhappy exception to which I shall come shortly—namely, Clause 64—this Bill follows the text and recommendations of the Law Commissions. That fact is, as the report of the Law Commission concerning one part of the Bill states: A dispute over custody may jeopardise the child's welfare and happiness and the emotional distress may drive the parents or others concerned to have recourse to unlawful remedies", and it gives rise to attempts, by going from one jurisdiction to another, to get a better answer from the courts.

In an extreme case—and the noble and learned Lord has indicated some of these cases—the child may be taken from the jurisdiction of the court which has made an order for its custody to another jurisdiction, where another court may take a different view of the facts of the case and make an inconsistent order. It produces nothing but a shambles and great unhappiness. As the law stands at the moment sometimes these custody problems are aggravated by lack of co-operation between the courts which have different jurisdictions. The attempt in this Bill to rationalise the position is one which we heartily accept and with which we agree.

As the noble and learned Lord has said, Parliament legislated in the Child Abduction Act 1984 on some features of this problem in its international aspects, and the Child Abduction and Custody Act 1985 was part of the same package of an attempted solution to this unhappy problem.

I agree that Part I of the Bill dealing with child custody completes a valuable package of law reform measures which are badly needed to solve this difficult and often heartless problem of abduction by estranged parents, not only outside the United Kingdom but, in view of the conflict of jurisdictions which already exist within the United Kingdom as well. It is right that we should put the welfare of the children themselves at the forefront of our consideration as we are doing in this Bill. This is a time when care and concern about children have come to the forefront of our affairs and thinking more than ever before. I think that there is a greater awareness and recognition of the cruelties that children are suffering in our society. We hope that awareness will be reflected in the attitudes of parents toward their own responsibility for their children.

In regard to the Bill itself, the main point, which I think has been raised by the Law Society in particular, relates to the jurisdiction of the court to make custody orders and the difficulties which it is felt could arise by applying the test of the habitual residence of the child. It is quite true that this term is used in other legislation. It is not defined in the Bill and the Law Society recommends—and if I may say so I think that there is a good deal to be said for it—that a test for habitual residence for, say, a year ought to suffice and ought to make it easier for the courts to operate these provisions.

So far as concerns Part III of the Bill, which relates to declarations of status, I agree that the High Court and the county court should have concurrent jurisdiction to make declarations as to marital status. It is clearly desirable that in this field there should be maximum flexibility to ensure that cases are dealt with at the level which is most appropriate.

I come now to the provision in the Bill which has given rise to a great deal of legitimate anxiety and indeed opposition, and that is Clause 64. Clause 64 seeks to do two things: first, to empower the Matrimonial Causes Rules Committee to amend or repeal any statutory provision relating to matrimonial practice and procedure; secondly, to make it legal—for the first time so far as I am aware—in matrimonial cases to remunerate legal aid work on a wholly different basis from private work. Those who have raised this matter—and many of those concerned have written to me—fear that the probable or indeed inevitable consequence will be that what is proposed will lead to an inferior service for the legally aided client. As to the first object, there is a provision in the Bill to empower rules of court made by a rule-making committee—in this case the Matrimonial Causes Rules Committee—to: amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provision made by the rules It is startling that a rule-making committee should have power to amend or repeal statutory provisions in what may prove to be a highly important field.

It is right—and no doubt the noble and learned Lord will draw the attention of the House to this fact—that a similar power as contained in subsection (1)(a) is contained in the Supreme Court Act 1981. If I may say so, the fact that such a precedent exists does not make it any better. My submission is that amendments to statutory provisions which could be of very great importance to the citizen should be the prerogative of Parliament and not of any rule-making committee, however distinguished, anonymous or well-know n its membership may be.

For instance, it is suggested by those who have experience in these matters that to grant that committee the proposed power would enable it to abolish the decree absolute in divorce and to provide for all matrimonial cases to be heard by divorce registrars. There is no limit placed on the terms of the power. My submission is that the whole constitutionality of that proposal, at the lowest is highly dubious.

When we examine the second part of Clause 64, we find a provision that will have potentially far-reaching implications for legal aid. It would empower the Matrimonial Causes Rules Committee to discriminate against legal aid work so far as concerns the costs of proceedings. It has been and indeed still is a fundamental principle of the Legal Aid Act 1974 that the fact that a party is legally aided shall not affect the relationship with his solicitor or his barrister. Legally aided parties have always been entitled to receive the same service as those who pay, and in consequence the remuneration of barristers and solicitors in civil legal aid cases has always been assessed on a basis which applies also to private clients.

The present basis for the assessment of legal aid costs is paragraph 4(1) of Schedule 2 of the Legal Aid Act 1974 which provides that: costs shall be taxed for the purposes of this Schedule according to the ordinary rules applicable on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested". The aim of Clause 64 in its second part is to enable fixed rates to be prescribed for legal aid work while leaving taxing officers to determine fair rates for private work. An aim is to reduce the cost of legal aid and payment for legally aided work. But the fear of those who deal with these matters, who are not by any means solely concerned with their own benefit, is that the inevitable result will be a reduction in the standards of service for legally aided persons. For that reason we feel that this clause, which is not in any sense part of the responsibility or recommendation of the Law Commission—that was not what it had to deal with—is an unattractive addition and intrusion into what is otherwise an admirable Bill.

At present, taxing masters and registrars fix fair remuneration for the payment of lawyers' fees in the light of local conditions and the circumstances of the case. Good work is rewarded; bad work is penalised. The system has worked pretty well since legal aid was introduced. However, fixed rates, which are now proposed in this field, by which mechanical assessments of hours worked will replace qualitative assessment of the work done, will reduce, we fear, the quality of the service provided and will discourage efficiency.

For those reasons we hope that further reflection will lead the noble and learned Lord and the Government to abandon Clause 64 of the Bill, which is at the moment the only black mark upon what is otherwise an admirable piece of law reform.