HL Deb 08 November 1989 vol 512 cc722-4

5 Page 4, line 4, leave out from '(1)' to end of line and insert `Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child's'.

6 Page 4, line 9, at end insert— '(1A) The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.'.

7 Page 4, line 15, leave out 'is signed by the person making it' and insert 'is signed by the person making the appointment or—

  1. (a) in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or
  2. (b) in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.'.

8 Page 4, line 16, after 'a', insert 'child's'.

9 Page 4, line 35, leave out 'another' and insert 'a'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5, 6, 7, 8 and 9. In doing so I shall also speak to Amendments Nos. 12, 14, 17, 19, 20 and 21. Perhaps I may take the amendments in order. Amendment No. 5 will allow an individual who wishes to be a child's guardian 1.o apply to the court to be so appointed, and for the court to order his or her appointment, provided of course that the circumstances in either Clause 5(1)(a) or (b) exist. The amendment corrects an oversight in the original Clause 5 which did not provide for applications to be made to the court for appointments of guardians. This is a necessary addition.

Amendment No. 6 makes clear that the court's power to appoint a guardian of a child can also be exercised on the court's own motion in any family proceedings, as defined in Clause 7. That seems to be a useful addition and is in accordance with the philosophy of the Bill that the courts should have wide powers to consider what is best in any situation even if specific application for that has not been made.

Amendment No. 7 has this effect. Clause 5(4) at present requires appointments of guardians by individuals to be in writing, dated and signed by the person making the appointment. "Signed", according to the interpretation section, includes making one's mark. Some physically disabled people, however, are unable even to make their mark on documents. This amendment will therefore permit such persons to appoint guardians by means of wills or other documents signed by someone on their behalf, at their direction and in their presence and in the presence of two witnesses. Although generally the Bill does not require the presence of witnesses to the appointment of guardians, in the special circumstances provided for in this amendment an exception seems wise.

Amendment No. 8 makes clear that only a guardian of the child's person will have parental responsibility for the child concerned, not a guardian of the child's estate. Amendment No. 9 is a drafting amendment.

Amendment No. 12 continues the theme of Amendment No. 7. The intention is to provide for physically disabled individuals who are unable to sign their names or make their marks to revoke appointments of guardians by means of written instruments, corresponding to Amendment No. 7. Similarly, Amendment No. 14 is intended to enable physically disabled persons to revoke appointments of guardians by enlisting the help of some other person to destroy the relevant instrument at their direction and in their presence.

Amendment No. 17 relates to Clause 5(14). Clause 5(14) presently provides that, to be valid, disclaimers by guardians must be recorded in the manner prescribed by the Lord Chancellor in regulations. This amendment provides that if regulations have not been made when the Act comes into force, valid disclaimers may still be made as long as they comply with Clause 5(13). However, when regulations are made, disclaimers will have to be recorded in accordance with the requirements of those regulations in order to be valid.

Amendment No. 19 provides that the court's powers to bring guardianship appointments to an end are to be exercisable either of the court's own motion in any family proceedings, or on the application of any person with parental responsibility for the child or, with leave of the court, the child himself. Amendment No. 20 will allow the High Court to continue to exercise its inherent power to appoint a guardian of the child's estate to administer his property though only in accordance with rules of court. Amendment No. 21 makes clear that a guardian of a child can be appointed only in accordance with the provisions of Clause 5. That is necessary to ensure the integrity of the procedure. I beg to move.

Moved, That the House do agree with the Commons in the said amendments. —(The Lord Chancellor.)

Lord Mishcon

My Lords, as well as the technical amendments to which the noble and learned Lord referred, we particularly welcome the power of the court of its own volition and within its own powers to make an order without any application having of necessity to be made to it. We entirely agree with his observations that the whole philosophy behind the Bill is to give the court the utmost power within proper limits to see that the child's welfare is protected.

The Lord Chancellor

My Lords, I am very much obliged to the noble Lord.

On Question, Motion agreed to.