Family Courts

HL Deb 22 July 1987 vol 488 cc1392-418

3.19 p.m.

Lord McGregor of Durris rose to call attention to proposals for the estabishment of family courts; and to move for Papers.

The noble Lord said: My Lords, it is my good fortune to speak to the Motion standing in my name on the Order Paper. During this debate we shall hear the noble and learned Lord on the Woolsack on a subject in which he has recently been reported in the press to be "deeply interested" and anxious to secure a much more sympathetic way of dealing with all the problems affecting children. It is also the good fortune of your Lordships that this afternoon we shall hear the maiden speech of the noble Lord, Lord Blyth.

The concept of family courts has a short history in England. Perhaps the earliest systematic proposal came from the noble and learned Lord, Lord Simon of Glaisdale, when he was leader of the Divorce Bar and submitted a detailed plan to the Morton Commission in 1952. At that time there were three systems of family law. One provided for those who could afford access to the High Court. Another gave a restricted jurisdiction to magistrates to deal with the family troubles of those who could not utilise the jurisdiction of the superior court which gave licences to marry again.

The third system of family law had been embedded in the poor law for three and a half centuries and survived in the hands of the National Assistance Board and then in those of the Supplementary Benefits Commission which, after Beveridge, dealt with the dependent poor whose subsistence came from the taxpayer.

Accordingly, family law was principally a regime of discriminate justice for different social classes, even as late as 1969 when the Finer Committee on one-parent families was appointed. That committee urged the establishment of a family court as the institutional counterpart of the social and financial reforms which it recommended. There was nothing sentimental, romantic or thaumaturgic in its concept. In the first place, the committee wanted to ensure that all citizens should have the same remedies in the same courts with the aim not only of terminating: a state of disorder which does no credit to a judicial system, but, more particularly (of terminating) arrangements which, whatever the theory may be, ostentatiously cater on a second-class basis for poor people". The committee also attached high importance to removing the criminal taint from the administration of family law by magistrates. In that, it followed the Gorell Commission of 1912, which reported that: there was a serious objection to a Court, whose main duties are of a criminal character, entertaining applications which are of a civil nature concerning the domestic relations of men, women and their children". One essential basis of the proposed family court was therefore the abolition of the summary jurisdiction. Unhappily, that recommendation has frequently been taken by magistrates as a criticism of them. However, that is wide of the mark. What the committee concluded in its report was that: It is probable … that only the care which so many magistrates have devoted to this task has saved the jurisdiction from floundering long ago under the weight of its inherent defects". The report emphasised: The continuing need for the services of the lay magistracy … as an indispensable source of lay experience and outlook". The family court would permit: greater flexibility in the association of lay and professional judges". In the second place, the committee sought to bring the private law of family maintenance into a new relationship with the public law of social security. Research demonstrated that the great majority of wives, mothers and their children who in theory receive maintenance from court orders were in reality dependent on supplementary benefit because the orders were mostly paid irregularly or not at all. By the end of the 1970s (the last period for which information is available) maintenance orders produced no more than 12 per cent. of the income of divorced and separated women on supplementary benefit. The commission provided the remainder.

Moreover, even if orders had been paid regularly and in full, recipients would still have been on supplementary benefit, as the orders were invariably for amounts which were less, and often substantially less, than their entitlements to minimum rates of benefit. One remarkable feature of that situation was that magistrates assessed amounts of orders, made variation orders and remitted arrears without reference to the Supplementary Benefits Commission, which alone possessed the information, experience and knowledge to make reliable assessments of income, need and ability to pay.

On the crucial issue of what deserted women and their children were to live on, realism and reason alike required that the courts and the social security authorities should be brought into an intimate working relationship instead of operating as if they had no connection with one another. Thus, fundamentally, the Finer Committee recommended a family court in order to replace family laws for the different social classes by a single family law for the whole community in a civil court and to bring the private law of family maintenance into a realistic relationship with the law of social security.

The Finer Committee defined rigorously the criteria which its family court had to satisfy. The court had to be an impartial judicial institution, applying to all citizens a uniform set of legal rules derived from a single moral standard and doing justice according to law. The committee said: The court must see (those) with whom it is concerned as 'clients' still less as patients for whom the court process is one form of, or a preliminary to 'treatment'". The family court should provide the best possible facilities for conciliation, which I think was carefully distinguished from reconciliation for the first time in the report. Moreover, it should be assisted by a professional staff which would also be available to parties in all matters requiring social work services and advice.

The committee said: The aim must be to make adjudication and welfare march hand in hand. But there should be no blurring of the edges, either in principle or in administration". In its desire to remove all criminal associations from the family court, the committee recommended that the juvenile court should continue with its jurisdiction unchanged. The committee set its face against a specialist bench. It wished the county court judge to be the focus of the court, with the Family Division of the High Court as the top tier and as its link with the rest of the higher judicial system.

The committee saw the family court as a prerequisite for its proposals to ameliorate the severity of the burdens and disadvantages which family breakdown inflicts upon the very large numbers of dependent children involved. The importance of that task should not be underestimated. Today one in eight of all families is a one-parent family.

How far the Finer Committee's major recommendations still remain to be acted upon may be judged against the findings of the newly published report, The Overlapping Family Jurisdiction of Magistrates' Courts and County Courts, by Mr. Mervyn Murch and his colleagues at the Socio-legal Centre for Family Studies of the Faculty of Law of the University of Bristol. That was undertaken for the Inter-departmental Review of Family and Domestic Jurisdiction, which provided a consultation paper for the noble and learned Lord on the Woolsack some 14 months ago.

The research shows that the magistrates' jurisdiction, preserved by the backward-looking Domestic Proceedings and Magistrates' Courts Act 1978, still serves to meet the needs largely of working-class litigants. Fifty-nine per cent. of the sample who went to the magistrates' court resented the criminal associations to which they were exposed, though some of those going to the county courts made similar complaints. Mr. Murch observes that: litigants react badly to … poor reception facilities … over-crowded waiting rooms and corridors, aggravated by a combination of poor listing practices and lack of appointment systems". Further, many litigants felt that the environment and condition of the courts seriously infringed the privacy in which their family affairs ought to have been treated. It is not difficult to understand why most solicitors and litigants prefer to take the civil route through the county court.

There have been very few studies of maintenance in England, although the results of the survey commissioned by the Lord Chancellor's Office from OPCS are awaited. However, nothing has changed since the English Law Commission, with a candour rare in official papers, said in the Financial Consequences of Divorce in 1981: one of the most serious difficulties encountered in examining any proposal for law reform in this area is that … very little reliable up-to-date information is available". We carry on legislating in this branch of the administration of justice without data and by hunch and guesswork.

We still know very little about the social and financial consequences of family breakdown in a society in which between one-third and one-quarter of all marriages are breaking down. Sadly, however, we know that supplementary benefit maintains 92 per cent. of separated mothers and 40 per cent. of divorced mothers, with more than half of all the one-parent families on supplementary benefit and a further 10 per cent. living on less than the scale rates.

I have stressed the Finer Committee's jurisdiction and model of a family court in part because it has shaped discussion ever since its report was published. However, what was then very much a minority interest is now capturing the attention of almost everyone concerned with family law and social policy. Many of the individuals, and most of the 45 legal and social welfare organisations which constitute the Family Courts Campaign established two years ago, accept the Finer Committee's recommendations as their starting point. The weight and vigour of this new body suggest that the cause of family courts is at last acquiring a political cutting edge.

So far the recurring theme in governmental comment has been the issue of cost. When Mrs. Barbara Castle, as Secretary of State for Social Services, rejected the main recommendations of the report in 1975 she referred to the, "grim realities of public expenditure".The Review of Family and Domestic Jurisdiction, to which I have already referred, sets out possible options for change in the structure and business of the courts concerned with family jurisdiction.

However, one of the several disappointing features of the review is its insistence upon the importance of the likely costs of family courts and its failure to give any guidance as to how these might be measured. There is no reference in the review to the important pioneering paper by Her Honour Judge Jean Graham Hall and Douglas Martin, towards A Unified Court—The Cost Factor. The review ignores the gaps in and limitations of court records which prevent, any clear comparative statistical picture of the way the courts work", being drawn.

The review itself is driven to say: We have not been able to assess the costs incurred in the family and domestic jurisdiction of the magistrates' courts". If this cannot be done, how are the costs of a family court to be estimated, especially in circumstances in which they fall across different departments and include the cost of administering supplementary benefit, which itself may offer possible large savings which could accrue from more efficient or cheaper methods of extracting money from liable relatives?

Naturally, most proponents of family courts recognise the significance of the costs involved, but nobody really knows what these would be or how to calculate them. The assumption of the review that any change must be more expensive is not acceptable. Indeed, Her Honour Judge Graham Hall and Mr. Douglas Martin showed how something of the order of £20 million per year could be saved by taking steps towards a unified family court. Is it not essential at this stage to undertake a technical study of how to estimate the costs of the administration of family jurisdiction? This would have to involve not only lawyers and practitioners but statisticians, economists and those skilled in cost benefit analysis. But even if we could estimate accurately what the costs may be, there would still remain the question of priority. There will be no family courts, be their costs light or heavy, until a government make this non-party issue a first priority of legal administration. I hope that the noble and learned Lord on the Woolsack may be able to give some indication that this has become a political possibility.

3.37 p.m.

Lord Hailsham of Saint Marylebone

My Lords, I congratulate the noble Lord, Lord McGregor, on having selected as his subject for this short debate a matter of very considerable importance to those who wish to see an improvement in our legal system. I was, and still am, looking forward to hearing the maiden speech from my noble and learned friend on the Woolsack. I should like to take the opportunity of congratulating him on his assumption of this exacting office and to offer him my very best wishes. However, should I be driven away from the end of this debate by a confusion of engagements, I hope the House will acquit me of discourtesy. I shall stay every moment as long as I can.

It seems a very long time ago since, as a member of the Heath administration and Lord Chancellor, I was instrumental in appointing the Finer Committee on single parent families. Since then there have been a very great number of different reviews, including a current investigation by Newcastle on the advantages of conciliation. There have been the Booth Committee on Matrimonial Procedures and the interdepartmental committee which I was responsible for initiating and to which the noble Lord, Lord McGregor, has drawn attention. It was carried on in conjunction with but independent of the Civil Justice Review.

I am quite clear about one matter; namely that we cannot go on indefinitely as we are. We must make progress in this field. My noble and learned friend knows that I made an attempt before the general election to secure in our election manifesto a commitment to the principle of family courts. As the noble Lord, Lord McGregor, indicated I failed on the grounds that I was unable to estimate the expense of such a commitment. I make no complaint about that fact. There are numerous variables to be taken into account and, with all the parameters to be inserted into the calculation, it is not possible to make a precise estimate at the present time. It is plain that the conflicts and complication of jurisdiction involved in the field of important social litigation are not such that they can be tolerated indefinitely.

We have been waiting a very long time for progress in this field and I am quite sure that my noble and learned friend on the Woolsack would take the same view; though how, to what extent and by what steps the advances are to be made are obviously matters of contention.

My conviction, for what it is worth, is that we must build on the existing structure. I do not think there is any other way forward. One must bear in mind what we mean by a court. I know that the enthusiasts for a so-called family court would be satisfied with nothing short of a separate set of buildings with a different judiciary, a wholly distinct supporting staff and probably a distinct core of advocates to practise in front of them. I believe that to be impracticable, quite apart from any other consideration. Even so I would regard it as a regressive step. In fact, it would interfere with the general march of the progress of law reform which has been almost uniformly in favour of concurrent jurisdiction with a single structure of courts and a comprehensive and, so far as possible, simple pyramid of appeals leading upwards.

The point is what we must get going. What do we mean by a court? What do we mean, for instance, by the commercial court, the divorce court, the companies court, the bankruptcy court? We do not mean a separate set of buildings for every jurisdiction, but we do mean a specialist list with a competent series of properly specialised judges in charge in each case. We do not necessarily mean that we should erect a separate set of buildings. After what the Lord Chief Justice said last night, it is very clear that the shortage of court buildings is one of the practical and material causes of delay in litigation generally. To put the family court into the field of those who are competing with other jurisdictions for a separate set of buildings would be to create administrative chaos.

I do not believe that the Finer Report was altogether fair to the magistrates' jurisdiction. It is true, of course, that the physical place to which litigants have recourse is the same building as that which carries a criminal jurisdiction, but the magistrates are selected from a specially trained and suitable panel. By and large, people do not have to go to that court to get justice. They go there because they want to. My impression is that the magistrates provide a cheap, informal and fairly rapid system of justice. For the immediate future, at any rate, I do not think that it would be possible to eliminate their jurisdiction, though I would personally like to see whether it is possible for them to deal with any question involving status, such as adoption.

I feel quite sure that there must be a gradual amalgamation in this field in spite of what the Lord Chief Justice said yesterday, at least between the county court and the High Court. I think that the present structure is unnecessarily complicated and cumbersome. As county court judges habitually sit as deputy High Court judges and registrars habitually are treating with the same types of cases between High Court and county court jurisdictions, I believe that it is by now purely an anomaly that the two sets of courts should have a separate jurisdiction and should live, as it were, in distinct worlds. We must recognise facts. There has been regular progress towards unification and I believe that that should go further.

People talk about costs. It is quite clear that if part of the magistrates' jurisdiction were to be eliminated, which would be the consequence of something that I have said, the legal profession itself would tend to demand payment under legal aid—of course, we are talking in the main about legal aid cases—on the scale of the county court or High Court and not on the scale of the magistrates' court. Be that as it may, it would cost a significant amount of money; but if we were to progress along the lines that I have indicated it would be perfectly possible to contain any increase in expenditure within the limits of the legal aid budget as it at present exists. I may be wrong, but that is the conclusion which I form.

Having said that, I leave the matter to the much greater wisdom of other speakers who are taking part in this interesting little debate. I am sure that we cannot stay as we are. I believe that we must progress forward by steps or we shall not progress at all. I have tried to indicate the lines upon which I think progress is possible.

3.46 p.m.

The Lord Bishop of Southwark

My Lords, in 1984 the Board for Social Responsibility, one of the main advisory boards of the General Synod of the Church of England, gave evidence to the Committee of the Lord Chancellor's Department on Matrimonial Causes Procedure. In the course of their evidence its members made a general point which I believe is of equal importance in considering this more recent report from the same source on family and domestic jurisdiction. It was that procedures have an important effect on people's understanding of the nature and importance of marriage and family life. They said; The attitude of the State to marriage as an institution is established as much in the procedure as in the substance of the law affecting these issues. We … believe that good procedures will help couples whose marriages are in crisis to come to terms with all the personal and material information they need to face in making decisions about the dissolution of their marriage". The board's members went on to say that they believed that there had been: a considerable erosion in this respect over the last 10 years. We believe … that the concept of irretrievable breakdown as the sole ground for divorce requires an inquisitorial method of procedure and encourages the process to take the possibility of reconciliation seriously and make adequate provision for it". In this regard the board expressed the strong hope that conciliation as opposed to reconciliation procedures would also be developed both in court and out of court; procedures which are not helped by an adversarial approach, particularly in the early stages.

One of the strongest arguments for a family court is that it will shift the emphasis towards helping families to understand what is going on, and so gain their confidence in the procedure as one which is there to help everyone concerned in the matter under dispute. All the evidence I have been able to gather from such bodies as the Church of England Children's Society and the Mothers' Union, as well as from the director of Welcare in my own diocese of Southwark, is united on this point. One of their main points of criticism is that this report does not sufficiently address the needs of children—a lack which may reflect the fact that its authors are all officers of the Lord Chancellor's Department or civil servants. No social workers, doctors or nurses, for instance, seem to have had any direct say.

Children are frequently involved in domestic proceedings of various kinds as well as in criminal cases in the juvenile court. As it was put to me by the director of Welcare: A system must be found which allows people space and time to work through their differences. We should not gear our court system in a way which focuses concentration on past grievances, but rather one which allows some planning for the future needs of children". It follows that a system of family courts will only be effective, especially where children are concerned, if it has its own welfare staff and is itself responsible for organising conciliation services. These, I suggest, are essential ingredients in producing the right mix of adjudication and care, and they will cost money. Set against this extra cost, and the possible extra cost of additional judges and magistrates, are the considerable savings in social costs that may arise as a result of the improved arrangements.

I should like here to underline strongly the clear and telling comments made by the noble Lord, Lord McGregor of Durris, about the question of cost and the difficulties caused by the absence of adequate information about this in the report. I also noted with interest what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said about the undesirability of separate buildings, quite apart from the general question of costs.

Members of your Lordships' House may have seen the figures put forward by the family courts campaign suggesting that a 10 per cent. reduction in matrimonial care orders and a 1 per cent. reduction in care orders under the Children and Young Persons Act 1969 would alone produce possible savings of approximately £80 million. It is essential that a comprehensive assessment is made of the indirect benefits as well as the legal costs and that we are not subjected once again to one of those narrow accounting processes which, for example, do not allow one to make connections between the lack of preventive medicine and the soaring cost of hospital treatment or between the decline of our inner cities and the ever-mounting costs of policing, insurance and civil disturbances.

The consultation paper states in paragraph 1.6: Successive governments have taken the view that a family court would require additional public resources which could not be found within prevailing levels and priorities for public expenditure. These questions of resource availability and allocation of priorities remain central to this issue". If it does nothing else I hope that the debate and the degree of concern that I am sure will be expressed, and has already been expressed, about what is happening already to so many families and children will ensure that there is a vigorous argument about which "additional public resources" we are talking about. To perpetuate the present arrangements more or less on the grounds of economy and then to spend more and more on legal aid, social security payments and the treatment of ill health and so is not true economy at all and compounds many problems for the next generation.

3.53 p.m.

Lord Blyth

My Lords, I have chosen to make my maiden speech today for a number of reasons, and I am grateful to the noble Lord, Lord McGregor of Durris, for introducing the subject. I had intended to make my speech earlier but the general election interfered with my plans. The prospect of speaking at all cast a mild nervous terror over me every time I considered it. Making it today had the advantage of there being only one more sitting day; by October I felt that it would hopefully be forgotten.

I decided that I must make a maiden speech during 1987 because the title that I hold was created in 1907. I am the fourth holder. The 80th year seemed to me to be appropriate since during that 80 years no holder of the title has ever spoken in this noble House. In the course of the next few minutes your Lordships may well regret that I have broken that 80-year silence.

Before going on to the matter in hand, I should like to say a word of thanks to the many noble Members and servants of the House whom I have found at all times to be extremely kind and helpful to a newcomer, and I appreciate it.

It is with some trepidation that I address the House on a subject of family law courts. I am not in any way connected with the law and I speak as a layman.

The family as a unit has come under increasing pressure in the past few decades. There is no reason to assume that this pressure will do anything other than increase. The breaking up of families, whether the parents are married or not, is a daily occurrence. Surely the best way of picking up the pieces is to have specialised courts. A parent who is frequently more interested at the time that the family breaks up in attempting to hurt either financially or otherwise the person he or she considers to be the errant partner is not the best judge of what is best for the children.

I have always found that in personal matters it is a good idea to ask oneself exactly what one is trying to do. In the matter that we are debating today, this is surely to make the best possible provisions both for the children and for the weaker partner in the relationship. It is very important that at times of great stress and anxiety people should be subject to as little added burden as possible. Most people appear very infrequently in front of a court and when they do there is an element of fear that needs to be reduced to a minimum. I think that this could be done better in some family type of court. Shattered lives need careful handling.

I wonder also whether consideration could not be given to bringing first time possessors of drugs under a family court. I do not mean dealers or pushers. Drug addiction is one of the biggest problems of the age among the young, and it certainly comes within the definition of being a family matter. Parents on drugs affect their children and children on drugs affect their parents, brothers and sisters. A young person—in that category I include people certainly up to the age of 25—in possession of drugs for his or her own use in my opinion should not be criminalised. The greatest possible steps should be taken to try to assist those who want to come back into normal society. They are frequently not able to do so on their own. Drug addiction is another problem that will probably continue to grow.

The idea of family courts is to me an attractive one, but I am certainly not qualified on the make-up or procedure. However, I feel that sympathetic lay people should form part of the decision-making process; we should never forget that people's lives and happiness are involved and decisions taken will affect them for the rest of their lives.

Finally, I confess that now and again when I am reading newspapers certain of them seem to open at page three. This morning happily one of them opened also at page 20, where under my stars of the day I read: The planetary set-up is perfect to arrange meetings and air your opinions and, although certain individuals have turned a deaf ear recently, you should he delighted by the response you receive".

3.58 p.m.

Baroness Elliot of Harwood

My Lords, I rise to congratulate the noble Lord, Lord Blyth, on a very interesting and entertaining speech. I hope that we shall have the opportunity of listening to him many times. I am sure that his contributions will be greatly appreciated. I congratulate him very much.

The debate comes at a very appropriate moment. Everyone interested in child care and the ways in which it is operating will be concerned about the reports of cases particularly from Cleveland. As such cases can occur elsewhere, something must be done to help. I am not an authority on what operates here in England, but I have long experience of what we try to do in Scotland in cases similar to those reported in Cleveland.

I should like for a short moment to talk about Scotland. I was for many years chairman of the children's committee and the social work committee on my county council in Roxburghshire. I was also the chairman of the advisory committee on child care for Scotland. That gave one a deep insight into what was going on. But it was a while ago and the position has changed. We are now doing something different. It is that which I should like to describe.

In Scotland we have a system of children's hearings. There is appointed to the children's panel a reporter who is an independent officer of experience in child care and who has legal knowledge. The reporter has statutory discretion in all referrals made to him as to whether or not a child's case should be considered by a child hearing. That is a lay tribunal which has replaced the juvenile court and has power to impose compulsory measures of care if the reporter considers this necessary.

The best interests of the child is the basic principle upon which the system works. However, the rights of both children and parents are protected. A matter of disputed fact, or any decision made by the reporter, is open to challenge by referral on application or appeal to a private hearing before a sheriff.

If the Cleveland type of situation had taken place in Scotland, the procedure would have been as follows. First, the local authority in a non-emergency situation would have to be satisfied that some form of compulsory supervision was likely in the child's best interest. The local authority would have a statutory duty to refer the child to the reporter. The reporter would study the case and decide whether there was a prima facie case for compulsory measures. He would then arrange a hearing. On the other hand, if he thought he could arrange some informal social work supervision with the parent's help and consent, he could do so and avoid a special hearing.

However, in an emergency where the child has been taken to hospital or to a place of safety under orders, the reporter is obliged to arrange a hearing on the first lawful day after the discovery, and not later than seven days at the outside. From then on he can be legal protector for the child and also of the legal rights for the parents to have a right of appeal.

This system has worked well. With the introduction of an independent prosecution system for adults in England and Wales and from the descriptions which we have heard I suggest that the Scottish model might well be considered—an independent official to whom all children in need of compulsory measures of care may be referred.

As I see it, the decision to refer the matter is not taken by the police or the local authority but by an independent officer—the reporter to the children's hearing. In this way many of the conflicts of interest that exist in England are eliminated in Scotland. I suggest to the English authorities that this system might be considered as it has worked very well in Scotland. I think that it is worth trying.

4.4 p.m.

Lord Denning

My Lords, I should like to join in congratulating my noble friend Lord Blyth on his modest and unassuming speech. Although he is the first of his line to speak in this House for 80 years, I hope we may often hear him again.

Family courts have been under consideration by me for over 40 years. Over 40 years ago I was chairman of a committee on the procedure in matrimonial causes. At that time we could do little other than not allow all cases to be heard in the High Court but allow many of them to be heard in the county court. For many years I was also the president of the National Marriage Guidance Council. From that experience I soon learnt the importance to the whole community of an advisory and conciliation service with regard to marriage and all its consequences.

Let me put these thoughts together. First, our substantive law has changed beyond recognition in those 40 years but our procedural law remains embedded in the past—a hotch-potch of courts and procedures which have never been brought up to date. Perhaps I may say a little on the background. The institution of marriage, I have always thought, is the foundation of our civilised society, with the bringing up of children in the home and with loving parents putting them along the right path. In the old days it was well buttressed by the law. There was no divorce until 1867; then for years there was divorce on proof of a matrimonial offence. Since 1969 there has been divorce on the irretrievable breakdown of marriage. But under the procedure of our courts that has now become divorce by consent; divorce by post. Therefore, that first buttress has broken down altogether.

The other buttress was that children of a non marriage were illegitimate; they were bastards. In Victorian times the daughter who sinned, as it was called, was turned out of the home, or the son was cut off without a shilling. That was the stigma of illegitimacy, the stigma of bastardy, which, unpleasant as it was, was a buttress of marriage. That has all gone. We are not allowed to speak of a child being illegitimate or a bastard. A "one-parent family" is the only acceptable phrase. That stigma has therefore gone. Furthermore, the man who is living with his mistress is no longer described as living with his mistress but with his common-law wife, or they are co-habitees. Most distressing of all is the number of young people now setting up home and living together without being married. Those are some of the failures of our society today. I do not need to go further into them.

However, on procedure—because these matters come so often before the courts for solution—perhaps I may suggest first that there should be an advisory and conciliation service, if need be sponsored by the state, whereby one or other of a couple in difficulty can go to that service and hopefully get conciliation, or advice if it means going to law. I therefore suggest, first, the setting up of an advisory and conciliation service. Then if the matter is bound to go to law, let there be a first tier. For what I might call the smaller cases I welcome magistrates taking on this extended jurisdiction. I have always had the greatest regard for our magistrates. They might be assisted by a probation or welfare officer. The first tier might consider such matters as the custody of children, access to children and even maintenance. Let such matters go before the magistrates, with a possible appeal.

I would put a second tier of higher courts on the rank of our county courts, with recorders and perhaps laymen to consider property cases and so on, cases of great difficulty and importance. That would form a new simplified structure of family courts. I suggest that that is the right course.

I am quite unacquainted with the financial resources available to the Government, but to get our procedural law equal to the developments in the substantive law we ought to have a new set of family courts, models taken from the past a great deal but dealing with the problems of the future. I suggest an advisory and conciliation service to start with; a first tier court consisting mainly of magistrates; and a second tier of higher courts for the higher and more important cases, rather like our Crown Courts, staffed by Crown Court judges, recorders or even High Court judges. There is room for, and with imagination and effort we can and I hope soon will have, a system of family courts.

4.11 p.m.

Baroness Strange

My Lords, I am happy to be speaking in the debate initiated by the noble Lord, Lora McGregor of Durris. I am sure that your Lordships will also be very happy that I shall not speak for long. I congratulate the noble Lord, Lord Blyth, on his excellent maiden speech. I hope that it will not be another 80 years before he speaks again.

I am speaking as a member of a largely silent and often maligned majority, the parents. It may sound a platitude, but I believe that some people may sometimes forget that if there were no parents there would not be children either.

Parents may not always be perfect. In fact sometimes they are very much less than perfect. I remember at the school sports of my youngest son we had a mothers' egg and spoon race with a cricket ball; the spoon was a real egg spoon and very small. Some mothers, suitably attired in gym shoes, with steady hands and twinkling feet, were runaway winners. Shamingly my cricket ball fell off, I could not pick it up with the egg spoon and my feet were just plodding along. However, I said to my son, who was a bit embarrassed, "Never mind, you may not have a mother who wins, but at least you have a mother". My husband of course is very nearly perfect. He always won the fathers' race at all schools and in style. Even if parents are not perfect, they are the only parents children have. That is why I believe that parents should be involved in family courts with the children as well as everybody else.

If a marriage breaks up, or for some other reason children are taken into custody, in the present system there are five different courts which can all deal with the same situation. In Scotland, as my noble friend Lady Elliot said, we have a children's hearing involving the children, which is very much nearer to the family court system. But in England, and Wales too, there is the High Court, the juvenile court, the county court, the magistrates' court and the domestic court, not to speak of the three higher courts: the Supreme Court, the Court of Appeal and the Crown Court. If I am a little confused about this now, how much worse must it be for parents already upset and in an emotional state.

I give an example which will demonstrate the confusion. This occurred in the Cleveland area when the local authority applied to the magistrates' court for a place of safety order. When the parents appealed against that in the magistrates' court, the local authority sought to make the children wards of court. After the case had started it was transferred to the High Court and was heard by Lord Justice Watkins, the senior presiding judge. How confusing and upsetting this must have been for parents already confused and upset; indeed for all those involved in the case—social workers, doctors and the police. If there had been one family court to deal with the whole matter the pain and confusion might have been considerably less.

In New Zealand and Canada the system of family courts worked so well that in New Zealand 58 per cent. reach agreement after a family court hearing and in Toronto the figure was 79 per cent. This must surely show the success of the system when applied.

Let us not forget that a happy and secure family life is the basis of our civilisation and the secure and happy upbringing of our children within that framework is our hope for the future.

4.16 p.m.

Viscount Buckmaster

My Lords, it gives me great pleasure to support the noble Lord, Lord McGregor of Durris, in his advocacy of family courts. I should like to add my very warm congratulations to those expressed to the noble Lord, Lord Blyth, on his splendid maiden speech.

I am not a lawyer and I am most hesitant to give tongue in the company of so many distinguished lawyers, but I strongly support any initiative which tends to bolster up the influence of the family and family life in general. I say this particularly in view of the present moral climate which has been referred to by other speakers, a climate where traditional moral standards are all too often blown away like straws in the wind and the sins of Sodom and Gomorrah are spreading unchecked in so many areas. I am sorry to say that it is considered quite normal for a Wimbledon champion to have an illegitimate child. In such circumstances, surely is it not the family which can act as a bulwark against such processes? Here I refer to the family as a life-giving and unifying element, a seed-bed where children are nurtured and developed and where the basic human qualities of commitment, compassion and caring can best be inculcated and fostered.

Perhaps I may remind your Lordships of the various organisations with which I am associated which are now working to promote the family: in particular the National Campaign for the Family, Family and Youth Concern, the Conservative Family Campaign and Familybase. However—and this is the main point I want to make, unpopular though I feel sure it will be—one must bear in mind that in Britain there are at the moment about 2 million Moslems. Estimates vary between 1½ and 2 million, but there may be as many as 2 million. There is no doubt that there are more Moslems than Methodists. The Union of Muslim Organisations, which represents their interests, hopes to secure the application of Moslem family law (which Moslems consider to be of divine origin) to British Moslems. I fully realise that this is likely to be a non-starter, but I make the plea at least that wherever possible Moslems, well versed in all aspects of Moslem family law, should be on the Bench whenever either party is a Moslem.

I make this recommendation because as I see it Moslem family law principles could be incorporated into the family court procedure in the following ways. Perhaps I may give as an example, wardship. Here I must emphasise once more that I speak with great temerity in an area in which I am not in any way well-informed. It seems to me and to others who have studied this matter that, in deciding on the custody, education and upbringing of children who are declared wards of court, the children born of Moslem parents or in mixed marriages where the father is a Moslem should be brought up as Moslems. Surely there is nothing very difficult about that. Local Moslem organisations or the Union of Muslim Organisations could surely be contacted to provide suitable facilities to the authorities in such cases.

I turn to the questions of divorce, nullity and judicial separation. As I see it, if both parties are Moslems, or one of them is a Moslem, a conciliation procedure should be deemed mandatory. Reference can be made to a Moslem leader or some Moslem organisation to whose meditation both parties would agree. Secondly, a Moslem divorce could be granted only when all attempts at reconciliation had failed. Thirdly, the upbringing of children as practising Moslems should be strictly enforced. Surely there is nothing very difficult about that. For the purposes of evidence of marriage it should be sufficient if the parties produce the certificate of the Islamic marriage, as is recommended by the Law Commission (Cmnd. 9595).

I emphasise once more that these proposals will run counter to current thinking but perhaps I may make the final plea that wherever possible—I should have thought there are cases where it would be possible—due concern should be taken of the religious susceptibilities of the many Moslems in our land.

4.22 p.m.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord McGregor, and indeed all other noble Lords who have spoken in their pleas to Her Majesty's Government to set up family courts in this country. May I also congratulate the noble Lord, Lord Blyth, on his speech which we all so much enjoyed.

I am the last Back Bench speaker and every point that I have in my paper has been ably made. I still propose to make them again. First, on the question of history, it is, as the noble and learned Lord, Lord Denning, said, more than 40 years since family courts were first discussed. There were discussed also, as the noble Lord, Lord McGregor, said, in 1952 by the noble and learned Lord, Lord Simon of Glaisdale, in his report to the Morton Committee. The noble and learned Lord, Lord Gardiner, spoke in your Lordships' House in 1969 of the harmful consequences and the hurt to human feelings of family breakdowns.

In 1971 the Law Commission set up a working party to look into the structure by which family matters should be dealt with. Finally, in 1974, the Finer Committee, of which the noble Lord, Lord McGregor, was a notable member, recommended the setting up of family courts. For 40 years people have been asking for a change in family courts.

Perhaps I may take up the point made by my noble friend Lady Strange about the feelings of the parents who are perforce the consumers of the legal system which covers divorce, wardship, judicial separation, adoptions and custody under the Guardianship of Minors Act 1971. The Family Courts Campaign reports that there are in the region of 670,000 petitions and applications in domestic courts each year. That means approximately two million men, women and children come into contact with the legal system in connection with domestic issues or other family proceedings. I make a plea on the part of all those involved for the court structure to be simplified and made understandable to those who must use it.

There are 185 county courts dealing with divorce, 83 other courts dealing with guardianship and domestic violence and 700 magistrates' courts dealing with juvenile justice and domestic jurisdiction. And, of course, there is the High Court. Each court has its own particular welfare service. I believe that the best people to resolve the question of the needs of children and the equitable distribution of joint assets are often the parents themselves. But it is surely reasonable that the state should offer machinery which encourages them to do that and prevents wherever possible the recourse to the ultimate judicial forum for decision.

My second point deals with the form which family courts should take; and here we are in choppy waters. There is the school of thought which considers that the juvenile justice system should come into the family courts. This may happen in the distant future but at the moment it is unacceptable to many who want no element of criminality in the family courts, as was stated by the noble Lord, Lord McGregor. The juvenile justice system in this country, despite the outstanding work done by magistrates, probation officers and social workers, requires overhauling. I fully support my noble friend Lady Elliot in all she said about the panel system. I hope one day that this may be introduced into England and Wales. It was said that we do not take notice of Scotland. My Lords, we do, particularly in this area.

I would, however, say that these varying views are no reason for doing nothing. In the disappointing inter-departmental review of family and domestic jurisdiction it was stated that the consensus of support for family courts was more apparent than real. The Family Courts Campaign, of which the noble Lord, Lord McGregor, is a member—I am, too, as are several Members of your Lordships' House—is also made up of 45 organisations, Members of another place, at least 15 Members of your Lordships' House, academics from all parts of the country and various departments of faculties of universities and polytechnics. I was going to refer to the recently published report from Bristol to which the noble Lord, Lord McGregor, referred. I should like to refer to a book just published by Mr. Peter Reeves, a lawyer and lecturer, in which he said: Family law is an area which suffers through a lack of coherence". There is at present no coherent pattern of welfare services. I believe that welfare and conciliation services are an essential precondition for the establishment of a family court. A conciliation service is a vital component for a successful family court. There is not the time to give the statistics of other countries such as New Zealand which has demonstrated how valuable is the national conciliation service.

We come to the question of resources. It was a disappointment that no political party had in its manifesto the recommendation for the setting up of family courts. As many noble Lords have said, this has never been properly costed. I believe that the noble and learned Lord, Lord Hailsham, said that the recommendation for family courts was turned down because the estimated cost was £40 million.

In the Civil Justice Quarterly of July 1983, Judge Jean Graham Hall published an article costing family courts, and the noble Lord, Lord McGregor, has referred to this matter. Time did not allow the noble Lord, and it certainly does not allow me, to go into the details. However, Judge Jean Graham Hall finishes her report by saying that cost need not be an obstacle or a cause for delaying the setting up of family courts.

The Family Courts Campaign has made some, admittedly crude, estimates which suggest, for example, that each year £40 million could be saved by a 10 per cent. reduction in matrimonial care orders, a further £40 million by a 1 per cent. reduction in care orders under the 1969 Children and Young Persons Act, and nearly £60 million by a 10 per cent. saving on relevant supplementary benefit payments as the result of streamlined enforcement of maintenance orders through a single court organisation.

I should like to ask the noble and learned Lord the Lord Chancellor how the Government and the Treasury costed family courts. Did they take into account the hidden savings that could be made on the family courts system? It would be interesting to know how the Treasury, if it was the Treasury, came to make the statement that they were too expensive to set up.

Those of us who have worked with families where there has been separation or divorce and with children whose families have broken up realise that there is a figure which can never be quantified in terms of happiness, security and stability. The happiness, security and stability of children are the seed corn of the future.

4.33 p.m.

Lord Meston

My Lords, I should like to thank my noble friend Lord McGregor for his perseverance and ultimate success in securing a debate on this topic. The Motion has been awaiting the ballot for debate for such a long time that it encourages one to hang on to one's premium bonds.

I have spent much of my working life over the past 14 years in the family courts of today, and I have the privilege of being a member of the committee of the Family Law Bar Association. As such I wish to dispel a number of misunderstandings. The first is the idea that the Bar is somehow entrenched against the family court. The fact that those of us who deal with the consumers and are involved in the daily practice of the law have not suspended our critical faculties when the phrase "family court" is uttered does not mean that we are against the idea.

The Family Law Bar Association and some of our colleagues on the Northern circuit made thorough and constructive responses to the consultation paper. Our experience does not lead us to think that lay magistrates have a monopoly of common sense or that social workers have a monopoly of expertise. We say that if we are to have a family court then we must have the best. Whatever may be second best is unlikely to be better than the present system.

The second misconception is that the present system suffers badly from undue formality, or legalism, or lack of welfare guidance. Much of our work is in chambers, unrobed, sitting around a table using affidavit evidence. Our methods of litigation have something to teach other areas of the law which are being scrutinised by the civil justice review.

The third misconception is that lawyers invariably introduce an aggressive or adversarial element. A great deal of our time—and I am not just speaking personally—is getting the parties to settle their differences and trying to get them to look beyond the unhappiness which has brought them to the divorce court. A great deal of our time is spent in trying to spare them the bitterness and the costs of litigation, pointing out to them that the size of the financial cake, which was small enough when the family was together, should not be made smaller when the family is separated.

Another misconception is that litigation is necessarily harmful as a process. We shall still need an efficient mechanism for deciding facts and resolving issues. The case in Cleveland presents such an example. In all litigation the interests of the children are paramount, but one can only assess what is best for the future by a careful judgment of the past.

Another fact about which we must remind ourselves in this debate is that the matter involves not only children. Questions of maintenance and capital adjustment under modern legislation require a thorough assessment of means and a skilful balance of a number of discretionary factors past, present and future; income, capital earning capacity, pension rights, needs and practicalities. Furthermore, we must retain effective procedures to investigate and compel disclosure of finances and compliance with orders, and to restrain domestic violence.

I have said that we want the best; but we do not want to lose the expertise of our existing judiciary. It is essential that we should not lose the expertise of the existing judges of the Family Division, nor of the circuit judges who specialise in these matters, nor of the registrars in Somerset House and elsewhere in the country. I suggest that much of this debate turns on retaining and maintaining reliable judges, lawyers and social workers, and on retaining the calibre of those people. The lower the calibre of the lower tiers, the more important it is that we retain the calibre of the higher tiers. We do not want expenditure on the lower tiers of the family court to create a temptation to cut costs at the top.

We do not want conciliation to become a substitute for the resolution of family problems. In a law-based system conciliation can complement but it cannot be a substitute for the legal process. There must be informed conciliation but we must remember that, following the breakdown of their marriage, the parties are vulnerable. We must not have a system of conciliation which pushes the weaker party into premature and ill-considered decisions which will govern the rest of their lives.

As an example of how conciliation can work, and work well, I point to. the system in operation under the registrars at Somerset House. It is a mistake to think that conciliation alone can melt away the bitterness or the financial evasions which follow marital breakdown. It is comforting to know that the Government are to seek the guidance of the conciliation unit at Newcastle University.

The one major benefit of the introduction of a family court is that we can shed the involvement of the lay magistrates and their anomalous procedures. The temptation to retain the lay involvement should be overcome; it will not enhance the process nor the results. My noble friend Lord McGregor pointed to the range of criticism made over the years of magistrates' involvement, from the Gorell Commission in the early part of the century to Bristol University last month.

We must not allow ourselves to fall into a system of crude arbitration. We have often heard —we have heard in this debate—of the example of New Zealand. Across the water in Australia they have a Family Court. It does not seem to command much respect. Large quantitites of maintenance are not paid. And according to the Sunday Times on 27th April last year, there have been three bombings, the fatal shooting of a judge, the murder of another judge's wife, three women murdered by husbands who blamed Family Court decisions and criticism from men who argue that their children have been legally stolen and from women who say that the judges are sexist. In other words, the family court must have authority and it must command respect.

The importance of the work is such that the expertise and the authority must be maintained. There are few more important or difficult decisions than whether a child should be taken, perhaps irrevocably, from his or her parents and few more important functions for the courts than to safeguard parents and children against either the inertia of local authorities or the misjudgments of inexperienced social workers.

Lastly, of course, we must have the resources, and I look forward to hearing what the noble Lord, Lord Elwyn-Jones, has to say. According to an account in Mrs. Barbara Castle's published diaries, she discussed the matter with the noble and learned Lord, Lord Elwyn-Jones, when he was Lord Chancellor. She noted in her diary: Elwyn was as charming as usual and convinced me that the elaborate new machinery Finer proposes is just not on". The lawyers would be the first to admit that there are anomalies and weaknesses in the existing system. There have been improvements and changes in the system since Finer but there is still room for a more rational allocation of work. Further evolution can take place and the Booth Committee gives us further opportunity. However, we should be careful of thinking of the family court as a panacea. We must have a clear idea of what we want. One sometimes has the feeling that a dozen different people all have a dozen different ideas of what a family court is.

The noble and learned Lord, Lord Hailsham, talked about the problem of a separate set of buildings. Clearly, if we are going to have a family court we must do more than simply change the labels outside the existing buildings. That would benefit no-one except the signwriters. But if resources are limited and if they are too limited to allow of having the best family court, then I suggest that resources should be diverted elsewhere and possibly towards the overhaul of child care law.

4.43 p.m.

Lord Elwyn-Jones

My Lords, I begin by joining with noble Lords who have already congratulated the noble Lord, Lord Blyth, on his delightful maiden speech. It is good that he has broken the resistance of his family over 80 years to holding forth in your Lordships' House.

What has been a common seam in this most interesting debate has been the feeling and knowledge that dissatisfaction with our current courts system for families is widespread, and indeed has been so for many years. The noble and learned Lord, Lord Hailsham, said that we cannot go on indefinitely as we are. The noble and learned Lord, Lord Denning, said that our procedural law is embodied in the past. The noble Baroness, Lady Strange, referred to the multiplicity of courts to which those seeking justice have to turn. She made the charming observation that if there are no parents, there are no children. It brought to my mind the famous answer of Mark Twain to the question, "What would men be like in a world without women?"—"Scarce, mighty scarce". That is an addition to the noble Baroness's collection of such observations.

The complexity of the court scene affecting the family has been grotesque over a very long period. For some purposes, such as adoption, the applicant can choose to which of several courts he can apply. In other cases (for example, in care proceedings) only the juvenile court is available. Yet in other situations (for example, in regard to custody) the court in which the family finds itself might be limited in its powers by detailed legislation within its jurisdiction. There is this chaos and complexity, owing perhaps to piecemeal legislation as time has gone by.

I heard with interest the speech of the noble Baroness, Lady Elliot of Harwood. We should consider the Scottish scene. I believe that we have much to learn from Scotland about procedures there and particularly about children's hearings.

Into this confusing situation the family court has gone with great vigour and has drawn attention to the absence in England and Wales of a legal system which focuses, as it should, on the needs of children and their families. In that task, if I may say so, the contribution of the noble Baroness, Lady Faithfull, has been quite outstanding. The fact ought to be acknowledged by your Lordships in the course of this debate.

So also, if he will allow me to say so—and he cannot stop me—has been the contribution of the noble Lord, Lord McGregor of Durris. We are grateful to him for initiating this debate and also for the fascinating article he wrote in the Civil Justice Quarterly, which, however, ended on what was for him a highly pessimistic note. He said: I joined the Family Courts Campaign in a lackadaisical and depressed mood. I am so pessimistic about the possibility of achieving anything worthwhile in the foreseeable future that I now feel that a campaign to secure a ministry of justice would be the best way to promote a Finer-type family court". If that was a cri de coeur it was also a cry of despair. But that pessimism was not reflected today in the light of what has recently been happening and the attribution to the noble and learned Lord of leaks from that distinguished department over which he presides, which makes us look forward with eagerness to the concluding part of the debate.

The major work on the family court system, as has been stated, was done by the committee which was chaired by Morris Finer, whose early death we all lamented. It was shipwrecked largely on the ground of excessive public expenditure; and, while I will not confirm every word in the diary of my noble friend, Lady Castle—but I must not anticipate events so recklessly—and while it is quite true that I found myself also faced with the Treasury argument that the Finer proposals were grotesquely extravagant and unachievable, I am afraid that problem still remains.

However, there is hope to be gained from the experience in other countries that the processes we have in mind for the family courts are not bankrupting. Indeed it is good that the studies of Judge Graham Hall in this field have been referred to. Last year I had the pleasure of co-chairing, with the noble Baroness, Lady Faithfull, a conference of the National Children's Bureau on the subject, Family Courts: the Need for Action. The need remains but we still await the remedy.

Two days before that conference the Lord Chancellor's Department released a long awaited report from the review committee that was established by the department, but I am bound to say that it created much disappointment because of its lack of direction. It asked a multitude of questions but gave very few answers. That became apparent in the address given by the spokesman of the department. It was indeed an unenviable task that he was given. In his speech to us he said: It did not prove possible to cost the options and various possible components of a family court because the number of imponderables and variables of which account would have to be taken at the present stage would make such an exercise fruitless. Our task will then be to advise the Minister and we envisage we shall be in a position to do this in early 1987". Therefore we now wait with hope for the noble and learned Lord on the Woolsack to tell us what has emerged from all those detailed inquiries in the intervening period. In a way it is unfortunate that the noble and learned Lord is to speak at the end of the debate. He might have saved us from a great deal of anxiety and worry about the future prospect. In any event we greatly look forward to hearing what in effect will be his maiden speech from the Woolsack—apart, that is, from some of the preliminary reconnaissances at Question Time which we have all enjoyed.

However, there is one aspect of what went on in the family courts conference to which I referred which I should like to develop further. There was a powerful speech made by the New Zealand judge who pioneered family courts in that country. Judge Peter Trapski spoke with enthusiasm of the successful New Zealand experience of family courts and emphasised the value of conciliation as an essential component of family law, as indeed has been said by the noble and learned Lord, Lord Denning.

Judge Trapski said that the result of their family court procedures was a dramatic reduction in the number of custody cases which actually proceed through to the "traditional bloodletting of a court hearing"—I like that phrase. He said that, in those that do get there there is almost an absence of the custody dispute which grinds on destructively beyond a two-day hearing; and that: There has been a dramatic almost overnight acceptance of the need to change traditional approaches by judges, administrators and the legal profession". With respect, I ask the noble and learned Lord what study has been made of the experience in New Zealand and what enlightenment we can receive from it for our own future progress? Similarly, Canada and Australia have had success with family courts. In the light of those experiences and in the confident expectation of good news to come, I happily now give way to the noble and learned Lord the Lord Chancellor.

4.53 p.m.

The Lord Chancellor

My Lords, your Lordships will appreciate that this is the first opportunity that I have had to speak of my noble and learned predecessor. I think that after three Parliaments as Lord Chancellor he will go down in history as one of the great reforming Lord Chancellors of the century. I have now inherited from him two very important proposed reforms. Those are the civil justice review and the family court. As I think your Lordships know, both are close to my heart, particularly reform in the family court field. My noble and learned predecessor initiated those reforms and carried them forward. Now I have the responsibility, with the help of my colleagues, for deciding what is the best and most viable course that we can find.

I first met the noble and learned Lord on a Saturday morning at Ipswich Quarter Sessions. He appeared with his wig, as always, on the back of his head but half over his right ear. He achieved there the most incredible result, just by the wit and skill that he used in his display of advocacy, because his case had no merit at all. He has always been ready to support me in what have been difficult times. I shall never forget him. I am so pleased to see him sitting in his place this afternoon. Great warrior, I salute you, and wish you well in what some may say is your too early retirement. I wish you every happiness and success.

Noble Lords who have already spoken have expressed their gratitude, as I do, to the noble Lord, Lord McGregor of Durris, for initiating this debate. It was helpful of him to give us a foretaste of his contribution in his learned article on family courts which appeared in the January edition of Civil Justice Quarterly. It is well known that the noble Lord was an active and influential member of the Finer Committee whose report recommended in 1974 the establishment of a family court. Indeed, I was particularly interested to hear the remarks of the noble and learned Lord, Lord Elwyn-Jones, about his problems after the Finer Report. The noble Lord, Lord McGregor, is. President of the National Association of Citizens Advice Bureaux, an organisation which is probably more familiar than any other with the whole range of problems faced by citizens and their families.

I should also like to congratulate the noble Lord, Lord Blyth, not only on making a record but on making a very good maiden speech in which he eloquently pleaded, as have all the speakers today, for the establishment of a family court or at the very least, of some reform. I, with everybody else, hope that he will continue to contribute to the debates in this House.

Since the noble and learned Lord, Lord Denning, talks about the situation 40 years ago, I cannot resist reminding him of the first occasion on which we met. In 1946 I was a young lieutenant in the RNVR and judge's marshall to the noble and learned Lord. That is where I first heard that beautiful voice. Perhaps I may also make a personal reference to my noble friend Lady Strange, with whom I was associated a couple of years ago when I was the attorney appearing in her claim, before your Lordships' Privileges Committee. I am very pleased that it was successful.

My Lords I should like to recall to mind—as have many noble Lords—the name of Morris Finer. I remember him as a friend and as a lawyer who had the unusual distinction of being invited by the late Richard Crossman to preside over that major inquiry. I think it was the particular genius of Morris Finer as a lawyer that he was able to analyse with such perception the relationship between the problems of one-parent families and the institutions affecting those families, as well as the courts.

There is no point in pretending that consideration as to whether and how to move forwards toward a family court has been anything but measured, and I believe that I detected an element of disappointment about that in some of the speeches of noble Lords. We therefore owe a notable debt to my predecessor for having re-opened ministerial and official consideration of the matter in 1983. He established the committee of officials which produced the consultation paper that was published last year. For my part I do not share the disappointment about that paper which has been expressed in some quarters. To my mind if fully rehearsed the issues and stimulated a degree of consensus. In the light of the views received, officials from my department, the Home Office, the Treasury and the Department of Health and Social Security, are considering the full range of policy options and their implications. I am sure the noble and learned Lord would agree that this task cannot be handled in a superficial way, and I can assure the House that officials are still heavily engaged on it.

I do not think that it would be right for me to say at this stage, with any degree of finality or detail, which of the main options for the reform of family justice is likely to be adopted; nor do I believe that it would be very helpful to enter upon a detailed analysis of the responses to the consultation paper. But in very broad terms, it is right to say that there does now appear to be a broad consensus among those who have responded in favour of the establishment of a family court. This consensus includes the legal profession, the judiciary, social work and welfare organisations, and the Magistrates' Association, though not all individual magistrates. When I say "consensus", I mean of course that there are degrees of variation in the responses. Within this consensus, a majority favour a family court based on the county court rather than the setting up of a new independent system of family courts.

There has, I sense, been general agreement this afternoon as to the nature of the problems and of the objectives that we should be adopting. As the incidence of marriage breakdown and associated problems have increased, questions have naturally been posed as to whether the existing arrangements for dealing with family business can be improved. This means improving the effectiveness of the courts in handling family business, including—and I still think it of great importance—most particularly the handling of cases relating to children, who are so often the innocent victims of the family's circumstances. We all agree, I am sure, as to the objective of seeing all matters concerning children dealt with in the best possible way by our courts. The improvements we seek relate to the quality of the decisions the courts are able to make, the appro-priateness of court procedures and the general quality of the service provided for families in trouble. As I said, in all these matters the welfare of children must be paramount.

At the same time, there is a proper concern to maximise the flexible and efficient deployment of judicial and other resources available to handle family cases and to ensure that all the resources engaged are well used. At this point, I should like to emphasise that it is our objective to ensure that changes, if there are to be changes, are sufficient to meet the well-founded criticisms of the present system. I need not rehearse these criticisms which were so well exposed in the Finer Report.

Reference has been made, too, during the course of the debate to the fact that the consultation paper did not examine the costs of the three options which it canvassed. There has been some criticism of that. The position is this. Considerable work on this point has been completed but has not reached a sufficiently final stage for me to make any comments which would be other than misleading. The problem which my noble and learned predecessor had, and which his noble and learned predecessor also had, is the problem associated with all Ministers. You have to persuade the Treasury that something is good, viable and cost-worthy and we need to have the proper accurate figures for it. As I am sure all your Lordships know, it is very difficult indeed to cost.

Having said that, there are, I believe, a number of matters on which I can be of some assistance to your Lordships. For example, it now seems fairly clear, without quoting figures, that the option of setting up a new, separate family court with its own accommodation, staff and judiciary is not one which any government would consider affordable.

At the other end of the scale, reforms limited to the magistrates' courts and to the overlap between those courts and the county courts seem likely to offer the least expensive solution. That leaves aside, of course, the question whether changes in that form are likely by themselves to provide worthwhile benefits and lasting improvements in the handling of cases concerning children.

If we turn to the option of a family court based in the county court a whole series of very difficult questions arise. I shall put them to your Lordships' House. What are to be the tiers of judiciary? Is it right to assume that there will be magistrates, registrars, circuit judges and High Court judges? What should be the place of lay magistrates in a unified family court? A Times leader last week compared the role of magistrates with that of medical and social work experts. The balance there will surely not change. Will it be right and sensible, at least for some cases, to have mixed benches made up from more than one tier? How are cases to be classified and allocated between tiers? How can we best combine fair procedure with arrangements which enable those who appear before the court to give of their best and to accept the decisions of the court as being for the best? In family cases above all, the court's decision is the first stage in creating fair arrangements and solutions, and it seems to me to be vital that all concerned should be able to accept that decision and then go forward.

Then there are some serious practical problems. A transfer of family work—and this has been said on several occasions today, based on the Graham Hall report that there would be savings—from the magistrates' courts to the county courts would increase the workload of the county courts but would not, in itself, provide the resources of staff, cash, judicial manpower and accommodation which will be required. Can savings be made in the magistrates' courts to provide these resources? In theory, of course, this should be possible, but I have been told, and I accept it, that there will be some magistrates' courts in which, for example, members of staff are engaged only partially on family work. Can we expect magistrates' courts committees to surrender to the county courts all the resources currently engaged on family work in the magistrates' courts even at the price of unavoidable local inconvenience, to the extent even of a possible reduction in the standard of service provided? Putting the matter another way, may we have to limit the scope of the family court in the face of this difficult problem?

Reform cannot be achieved at any price. Changes in procedures, forum and administrative arrangements must be feasible, cost-effective and capable of persuading Treasury Ministers. At present the total cost of family business—and I think this may surprise some of your Lordships—is some £150 million a year. Out of this £87 million is spent on legal aid; £18 million is the cost of conducting family business in the magistrates' courts; £25 million is the cost of family business in the county courts and the other higher courts; and about £20 million is spent on probation officers and social services. That is a very high base to start from.

The Government's efforts in the next few months will be directed at examining the details of changes necessary to achieve reform, and I hope will include firm costings of these changes. This will entail looking at the feasibility and cost-effectiveness of moving judicial business between the courts. It will also mean looking at payments for legal aid. The Government's starting point on the family court must be the need to keep expenditure as a whole close to current levels.

The White Paper on Legal Aid set out two principles that the Government will be adopting generally in respect of legal aid remuneration. The first is that the Government will continue to have regard for the principle of fair remuneration for work actually and reasonably done. The second principle is that the Government must also have regard to other claims on public funds. But as well we have to be fair to the taxpayer who, in the end, provides the funds. If there is to be a family court it will have to offer fairness to the taxpayer in relation to legal aid as well as to other costs.

Reference has been made to an article by Judge Jean Graham Hall and Mr. Douglas Martin. They propose that in a family court there should be radical changes directed to achieving affordability, with higher court fees and even changes in the scope of legal aid. I can assure your Lordships that we are certainly looking closely at what they wrote, as indeed we are at everything with which we have been provided and which has been referred to today.

A wide range of options has to be considered affecting various aspects of these court proposals. At the same time, I am anxious to identify and stick to the main theme.

As your Lordships will appreciate, the matter is one to which I have thought it right to give a good deal of attention in the short time that I have been in office. There is one central point which has struck me and which I feel should be emphasised. The leading purpose of a family court, if there were to be one—and I hope that your Lordships will notice the qualification that I insist on making—would be to improve the standard of adjudication, in particular in cases where children are involved.

From what I have heard today I believe that that is the point which must concern your Lordships and also the country at large. With that objective in mind it remains to be seen which other aspects of family business, if any, would need to be reorganised. Now I pose, if I may, another problem. For example it does not seem to me that the work which magistrates' courts do in recording and enforcing maintenance payments would have to be made the subject of a major reorganisation. It may be that that work can be severed from the judicial handling of other family work by magistrates and that we should concentrate on improving the handling of children's cases.

I have spoken about the newspaper articles, but those that appeared after the general election suggested that plans for a family court had been shelved. I do not know how that situation arose because we are still in the middle and on station for a decision by the end of the year. But as this debate has illustrated it is not an easy problem to resolve and, as I have said, the Government are not yet in a position to commit themselves to any particular decision nor to a precise date for a decision.

I think that the public now realise the importance of this reform. We have to choose the option which will create the best sympathetic atmosphere or climate for those involved in the turbulence of a breakdown of a marriage and, most important of all, for those innocent children who through no fault of their own become involved in that turmoil.

Lord McGregor of Durris

My Lords, I thank all noble Lords who have contributed to the debate, especially the noble Lord, Lord Blyth, whose kinsmen it seems fell silent around the time the Gorell Commission published its report, but I hope that we may take the charming maiden speach of the noble Lord as an omen.

The debate has been a formidable experience for a layman who is foolhardy enough to enter legal ground and then discovers on the list of speakers not only the noble and learned Lord on the Woolsack but two of his predecessors.

The noble and learned Lord, Lord Elwyn-Jones, referred to his disappointment at a statement that I had made in a piece that I wrote. I now think that that observation penned a year ago was foolish. It was particularly foolish coming from someone who spends time reading the history of our legal institutions during the last two centuries. The outstanding impression that that history leaves is not one of speed of change. So I am neither disappointed nor elated by what the noble and learned Lord on the Woolsack has said. However, I am encouraged that he, his department and the Government have the issue of family courts under active consideration. We shall all look forward to the results of that in the next few months. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.