HL Deb 25 February 1988 vol 493 cc1351-4

7.1 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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

The Bill before you fulfils an undertaking which I gave to this House last December to introduce retrospective legislation to deal with a lacuna in the Matrimonial and Family Proceedings Act 1984 which has caused certain transfers of matrimonial proceedings from the High Court to county courts to be declared invalid by the Court of Appeal in the case of Nissim v. Nissim. The result of that judgment is that the decrees and orders of county courts following such transfers are also invalid.

The problem arose in this way. Part V of the 1984 Act deals with the distribution and transfer of family business. Before the coming into force of this part on 28th April 1986, the county courts had various duties and powers under the Matrimonial Causes Rules 1977 to transfer matrimonial causes and matters up to the High Court for determination and there were provisions in those rules allowing the High Court to transfer such causes or matters back to a county court. Part V of the 1984 Act was intended to provide a complete regime for such transfers up and down. Accordingly, the 1977 rules governing those transfers were revoked when Part V came into force. By omission, however, the part did not contain a provision which would allow proceedings already transferred up to the High Court before the part came into force to be transferred back to the county court once it had come into force. Nonetheless, the courts continued to order the transfer of such proceedings back to county courts which in turn continued to dispose of them.

I shall deal first with the Bill's retrospective effect before turning finally to the arrangements it provides for the future transfer of matrimonial proceedings. Subsections (2) and (3) of Clause 1 of the Bill, subject to one exception, will validate the purported transfers to county courts. All logical consequences of such transfers will then follow automatically. Not only will the decrees and orders of county courts be validated, but so will dependent transactions. Thus remarriages will be validated and, for example, the children of those remarriages will be legitimate. Further, any property transferred on the basis that a county court decree or order was valid, for example, on an intestacy, will be validated.

It is possible, but highly improbable, that someone may have acted on the basis that the transfer of proceedings to a county court and any decree or orders made there were invalid. They might, for example, have distributed property on an intestacy to a first wife on the basis that a decree was invalidly granted and the purported marriage to a second wife void. If such a case exists, the distribution will have to be unpicked. The Bill enables that to happen. However, such cases are likely to be very rare. The Government's announcement immediately after the Court of Appeal's decision in Nissim that the position would be rectified retrospectively was widely publicised, particularly in the legal journals. The Law Society was told of the Government's intentions to legislate retrospectively and has been advising its members accordingly. Further, as this problem came to light only in December last year there has been little time for such transactions to be carried through. I should say, however, even if such an improbable case has arisen, the Government's view is that the rights and duties of those affected should in justice be decided on the basis that decrees and orders of the county courts were valid, as, indeed, everybody expected and intended they should be; and, accordingly, no advantage or disadvantage should accrue from a legislative slip of this kind.

I mentioned at the outset an exception to the otherwise general principle of retrospection in the Bill. It is contained in subsections (4) and (5) of Clause 1 and relates to orders of the High Court. In some cases, having realised that the decrees and orders of a county court were invalid, some parties may have sought decrees and orders in the High Court where, in law, their case still was. In those circumstances the High Court may have granted a decree and then made orders about such things as financial provision, property rights and the custody and education of any children involved. In preparing this Bill we had to decide how those later decrees and orders should he treated. Our conclusion, which is reflected in the Bill, is that the earliest decree, namely, that of the county court, should stand, thus validating all transactions based on it, including remarriages after its grant. Accordingly, any later High Court decree, having served its purpose meantime, will cease to have effect because the parties will already have been divorced by the earlier county court decree.

As regards orders—for example, those about children's custody, maintenance and property rights—we concluded that those of the High Court should, in general, stand. Our reasons are that if the High Court orders are the same as those made earlier by a county court there is no reason to choose between them. If, however, they are different, it would cause the least disturbance to people's lives and arrangements to leave matters where they stand on the coming into force of this Bill rather than requiring the parties to readjust their arrangements yet again to comply with a revived county court order. Further, so far as orders for maintenance or those relating to the custody of children are concerned, those of the High Court will reflect the most up-to-date position and it would be undesirable to substitute for them any earlier and hence perhaps inappropriate county court orders.

Finally, the Bill deals with the future handling of the cases concerned. First, subsection (4) of Clause 1 provides that where the parties have returned to the High Court and obtained a decree, but there are proceedings still pending in that court when the Act comes into force, that court will retain jurisdiction over the case. In some cases, no doubt, it will decide any outstanding matters itself. However, in others it may use the new power in subsection (1) of Clause 1 to transfer the case back to a county court. Turning to that new power itself, subsection (1) of Clause 1 of the Bill amends Section 38 of the Matrimonial and Family Proceedings Act 1984 by adding a new power which will allow the High Court to transfer down any matrimonial cases which have been transfered up to it from a county court at any time and which are not otherwise transferable down under that section. In other words, subsection (1) is the provision which ought to have been in the 1984 Act from the outset.

My Lords, this short Bill will put those involved in the matrimonial cases mistakenly transferred to county courts in the position which they thought they were in and will remove the lacuna in the 1984 Act which has given rise to invalid proceedings. As such it is an uncontroversial but very necessary measure and accordingly I ask this House to give it a second reading. I beg to move.

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

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for that lucid explanation of the inexplicable. We are having to cope in this matter not only with transfers up and transfers down but transfers back down, a truly verbally gymnastic exercise which we are called upon to perform. What I am puzzled about is how many cases are involved in this matter. I am most grateful for the Notes on Clauses for otherwise the lacuna in my mind would be almost as great as those which created the original confusion in this Bill. It states in the Notes on Clauses that in an unknown number of cases the proceedings were purportedly transferred back down to the County Court after 28th April 1986.

Are we therefore in this fascinating piece of legislation dealing with an unknown number of cases? Can the news be bruited abroad that all is well, that those concerned do not have bastard children and that they are properly married? Perhaps the Law Society will see that due publicity and due reassurance will be given by all the relevant means.

One conclusion that I have reached about all this is whether this is a pointer to the crying need for a family court? Could this confusion conceivably have arisen within the existence and context of a family court? I ask that question as I am not absolutely certain about that. However, it is a thought to which we should give consideration. This is a very unhappy lapse. Nobody is criminally responsible. There is no firing squad lined up for this, but it is undoubtedly a regrettable error. It is reassuring that the ingenuity of mind of the noble and learned Lord the Lord Chancellor, assisted by parliamentary draftsmen, enables him to give this positive assurance that if we pass this Bill the shambles will be cleared and happy marriages will once more be remade.

The Lord Chancellor

My Lords, I am extremely grateful to the noble and learned Lord for his felicitous welcome to this Bill. I fear that he is right and that we are dealing with what is to me an unknown number of cases. The noble and learned Lord was kind enough to ask me some little time ago how many cases there were. I have made inquiries but the fact is that it is very difficult to say because one would have to look at all the possible cases back to 1986 to find that out. I cannot say how many there are, but obviously it is a finite number which could be found out but, in the ordinary phrase, "at disproportionate expense".

Perhaps the noble and learned Lord will be content with the assurance which I have given that the classes of case which can occur have been properly dealt with by the provisions in the Bill and that the happy result of which he has spoken will accrue.

The noble and learned Lord has taken the opportunity to mention the family court. There is a tendency in some quarters to think of the family court as a panacea for all possible problems connected with the family. That is perhaps reflected in the fact that if one asks people about their ideas on what a family court is one finds that those ideas are apt to vary considerably from one person to another as they envisage the problems with which a family court might have to deal.

I have certainly inherited a great interest in family courts from my noble and learned friend Lord Havers who preceded me in this appointment. He showed that interest in his speech to your Lordships on that matter some time ago. The work that he referred to is still going on and has not yet been completed. The costing of the various options is quite a difficult matter. I am sure that your Lordships would wish these to be fully examined before proposals were made.

However, to seek to answer the question about the family court to which the noble and learned Lord referred, perhaps the lesson to be drawn is that great care is required in any legislation which might be proposed to introduce a family court. There are many cases which would have to be dealt with. The lesson is that there may be cases that somebody has not perhaps thought about at the time the legislation was going through which may cause unfortunate consequences.

While I hope that if legislation comes foward at any time about family courts it will have no such difficulties in it, I cannot claim any kind of infallibility in that matter. We should do our best not to avoid infallibility but to avoid any such mistake. Accordingly, I think the answer is that this kind of mistake can arise in relation to legislation but we shall do our best to avoid it for the future.

On Question, Bill read a second time, and committed to a Committee of the Whole House.