HL Deb 24 October 1990 vol 522 cc1356-9

12 After Clause 8, insert the following clause:

Allocation of family proceedings which are within the jurisdiction of county courts

'.—(1) The Lord Chancellor may, with the concurrence of the President of the Family Division, give directions that, in such circumstances as may be specified—

  1. (a) any family proceedings which are within the jurisdiction of county courts; or
  2. (b) any specified description of such proceedings, shall be allocated to specified judges or to specified descriptions of judge.

(2) Any such direction shall have effect regardless of any rules of court.

(3) Where any directions have been given under this section allocating any proceedings to specified judges, the validity of anything done by a judge in, or in relation to, the proceedings shall not be called into question by reason only of the fact that he was not a specified judge.

(4) For the purposes of subsection (1) "county court" includes the principal registry of the Family Division of the High Court in so far as it is treated as a county court.

(5) In this section—

specified" means specified in the directions.'.

13 After Clause 8, insert the following clause:

Family proceedings in magistrates' courts and related matters

'.—(1) In this section "family proceedings" has the meaning given by section 65(1) of the Magistrates' Courts Act 1980.

(2) For the purpose of giving effect to any enactment mentioned in that section, rules made under section 144 of that Act may make, in relation to any family proceedings, any provision which—

  1. (a) falls within subsection (2) of section 93 of the Children Act 1989 (rules of court); and
  2. (b) may be made in relation to relevant proceedings under section 93 of the Act of 1989.

(3) In section 35 of the Justices of the Peace Act 1979 (composition of committee of magistrates for inner London area), in subsection (3)—

  1. (a) in paragraph (b) for the words "three members of the juvenile court panel" there shall be substituted "one member of the juvenile court panel"; and
  2. (b) after that paragraph there shall be inserted the following paragraph—

(4) At the end of that section there shall be added the following subsection— (7) No rules shall be made under subsection (3) (bb) above except on the advice of, or after consultation with, the rule committee established under section 144 of the Magistrates' Courts Act 1980.

(5) In section 37(1) (a) of that Act (justices' clerks) after the words "juvenile courts" there shall be inserted "and family proceedings courts".'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 and 13. I shall speak at the same time to Commons Amendments Nos. 161, 162, 217 to 226, 274, 283, 287 and 300 to 303.

These amendments are concerned with the Children Act. They are intended to assist the Children Act to deliver its aims and objectives more fully in all family proceedings. The new clause at Amendment No. 12 enables the Lord Chancellor to make directions about the allocation of family proceedings in county courts. The directions will fall into two parts. First, directions will be made allocating a particular type of proceedings to a particular level of judge. The new clause will enable the Lord Chancellor to give a comprehensive direction covering all family business and to ensure that particularly sensitive proceedings, such as care cases, are heard by judiciary of sufficient standing.

Secondly, directions will be made allocating a particular type of proceedings to a specific individual judge. The effect will be to create a nominated group of circuit judges and district judges who will specialise in specific types of family work in the county courts. The selection of the specialist judges will be a matter for the Lord Chancellor on the advice and with the concurrence of the President of the Family Division.

The new clause at Amendment No. 13 extends the rule-making provision in Section 93 of the Children Act 1989 to cover all family proceedings. This will ensure that children cases and other family proceedings cases brought in the magistrates' courts under the Children Act will be subject to the same rules of procedure. It also provides for representatives of the new commission-wide family panel for inner London, which is to be established under the Act, to be represented on the committee to appoint a chief clerk for the new family proceedings court.

Amendment No. 161 will ensure that the power to make rules of court contained in Section 93 of the Children Act 1989 will extend to the relevant rule-making authorities in Northern Ireland. Amendment No. 162 provides for rules to allow for delegation of the duties or powers of a justices' clerk to someone who is his deputy or who assists him.

Amendment No. 218 honours a commitment I made during the later stages of the Children Bill to introduce a reserve power—this is an important power —for the Secretary of State with the consent of the Treasury to make a specific grant towards expenditure for the administration of guardian ad litem panels. This is intended to ensure that local authorities make sufficient funds available to provide an efficient and effective service for the courts, including a sufficient supply of guardians ad litem.

The remaining substantive amendments make further minor but worthwhile changes. Amendment No. 221 concerns Section 97 of the Children Act 1989, which provides for rules to enable a magistrates' court to sit in private in certain proceedings under the Act, and restricts the publication of material which might identify a child. These provisions are intended to supplement other statutory provisions concerning privacy and the amendment clarifies this. The amendment also removes the 90-day time-limit for complying with a direction made under a supervision order. This limit, which applies to criminal supervision orders under the Children and Young Persons Act 1969, is thought inappropriate to civil supervision orders under the Children Act.

Amendment No. 217 makes it clear that when a young person is brought before the court for variation or discharge of his supervision order, or is arrested to achieve that objective, and the court at this stage is unable to reach a decision it can either release him or remand him to local authority accommodation if he is under the age of 18, or to a remand centre or prison if he has attained that age.

Amendment No. 222 will ensure that no child in care will remain a ward of court, following the Act's commencement. This brings into line all committals to care made prior to the Act. The remaining amendments in this group make the necessary consequential amendments and repeals and minor technical changes and correct some inconsistencies and technical errors in the earlier draft. The amendments will provide the necessary changes to enable the Children Act to deliver its aims more fully.

Moved, That the House do agree with the Commons in their Amendments Nos. 12 and 13. -(The Lord Chancellor.)

Lord Mishcon

My Lords, I am absolutely sure that these amendments will meet with the sympathy, understanding and indeed the approval of the whole House. There will now be, as we have had in the High Court, specially trained judges to deal with family affairs at magistrates' level and at other levels. The old registrars will be brought into the matter under their new name. That is a very welcome step. It is also a very welcome step to know that in child abuse cases (which have concerned all of us so much, especially when the figures have been brought to our attention; and some dreadful cases have been brought to our attention of late) these may go straight away to the High Court instead of going through the procedure of being made wards of court, as in the past.

This is a very welcome step; and one can see also, one dreams, the beginnings of a family court where all this will be done in a unified way in one court, and we are preparing the way with our specialist judges for just that to happen. I hope your Lordships will not think t lat this is an inappropriate moment to mention a dream which has been very often spoken of in your Lordships' House, very often hoped for and is one which, pray God, will be realised one day.

Lord Simon of Glaisdale

My Lords, for the reasons given by the noble Lord, Lord Mishcon, I very much welcome this group of amendments, and particularly Amendment No. 12. The exercise of family jurisdiction demands the qualities which are always necessary judicially but in a special degree. I also echo what the noble Lord said about this being a step towards a unified system of a family court.

I have only one point, and that is to wonder why subsection (3) of Amendment No. 12 is necessary. I should have thought that a judge exercising judicially functions de facto, even if not de jure, will exercise those functions effectually without needing to say so. It would be a judge ex officio. The high authority in the New Zealand Court of Appeal, if my recollection is right, to that effect was a judge actually exercising criminal jurisdiction de facto but not de jure.

I only raise the point because I have already ventured to expostulate against the wording of our legislative system. I wonder whether really sufficient examination is made to see whether everything that is put into a statute is strictly necessary. In this case, I am convinced that it was unnecessary.

The Lord Chancellor

My Lords, I appreciate the general welcome which has been expressed for these provisions by the noble Lord, Lord Mishcon, and my noble and learned friend Lord Simon of Glaisdale. I believe these are important steps towards a unified family jurisdiction, which may be the right answer to the attainment of the goals which have sometimes been described under different phrases in the past.

So far as concerns the point raised by my noble and learned friend Lord Simon of Glaisdale about the need for subsection (3), the judgment was made that this was a wise provision to make when we were laying down the need for specified proceedings to go to a specified judge. What is necessary is always a question of judgment. One can leave it to the court, but I believe this was a wise provision to make.

On Question, Motion agreed to.