HL Deb 25 February 1991 vol 526 cc787-91

4.19 p.m.

Second Reading debate resumed.

Lord McGregor of Durris

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for the clarity of his exposition of this complicated Bill. From these Benches I state our agreement with his emphasis, and that of the noble Lord, Lord Mishcon, upon the priority which must be accorded to children and the interests of their mothers in the fair, efficient and speedy assessment and collection of maintenance.

The Bill provides for radical changes in the methods of supporting children of one-parent families which were presaged in the White Paper Children come First. In particular, a child support agency will be set up within the Department of Social Security with a staff of 4,700, more than 2,000 of whom will be additional to the present establishment. Those officials will administer the assessment, collection and enforcement of maintenance for children at an estimated added cost of £35 million a year, with further capital costs of some £30 million. However, their labours are expected to reduce social security expenditure by £400 million within an unstated period.

The White Paper came 22 years after the first official inquiry into maintenance by the Graham Hall Committee on Statutory Maintenance Limits. After recommending abolition of the statutory limits which operated in magistrates' courts the committee concluded, and I quote: We have been convinced by the evidence assembled for our limited study that further and far-reaching evolution of the maintenance system will be found necessary within the next decade or so. The result was the appointment in 1969 of the Finer Committee on One-Parent Families, with a very wide remit. Its report, published five years later and running to two-thirds of a million words, cannot be summarised succinctly but for my present purpose it is sufficient to say that the committee demonstrated how social security constitutes a third system of family law alongside the two operating in the courts and intertwined with them.

Throughout this century the law has proclaimed an obligation upon husbands and fathers to maintain their wives and children, and the courts have made millions of maintenance orders which were legal fictions, because it has never been possible to enforce them in practice. As a consequence social policy has always had to provide the subsistence which the law promised, and that is so for the reason which was stated crisply by the National Assistance Board in its annual report for 1953: A woman cannot be left to starve because her marriage is broken; still less can her children be left to starve. Nothing has changed since the Finer Committee reported, save that the number of casualties of broken homes has increased dramatically. There is no need to cite the numbers because they have already been cited by the noble and learned Lord and by the noble Lord, Lord Mishcon. Today, as when Finer reported, what court maintenance orders contribute is marginal. What social security provides is fundamental. Accordingly, the child support agency is put forward by the Government as a solution to what the Finer Committee defined as a central issue of its terms of reference. I think it is instructive to compare the two solutions.

The Finer Committee recommended a family court, to achieve three main aims. First, to eliminate overlapping family jurisdictions. Secondly, in the interests of realism and reason alike, to require that the courts and the social security authorities be brought not into any sort of merger but into an intimate working relationship. Thirdly, the committee recommended that the family jurisdiction should be equipped with its own welfare service, specifically adapted and responsive to its own needs.

Throughout the committee's analysis there runs an awareness of involvement in moral, social, economic and legal issues of fundamental importance. Indeed, an approving and perceptive review of the report in the Financial Times observed that it should be interpreted in part as an essay on the status and social situation of women in British society, which indeed it was.

The then Secretary of State for Social Services and the Lord Chancellor immediately turned down the proposals without consideration, as being too costly; and cost has since remained the official incantation which disposes of the subject. So a family court remains an aspiration. Nevertheless, the only published computation of the cost of such a court made by Judge Graham Hall and Mr. Douglas Martin suggested that a unified court would be cheaper than the present fragmented arrangements.

The White Paper sets out the case for a child support agency as one part of what the Government describe, and what the noble and learned Lord explained, as a balanced programme to review and reform the family justice system in England and Wales. The principle which justifies the establishment of an entirely new procedure is that the failure to pay maintenance regularly places—and here I quote the White Paper— the responsibility for maintaining the children on other taxpayers, many of whom are raising families on their own. This is a reasonable approach if the father's default is contumacious and I know of no informed body or person who thinks otherwise. Certainly on these Benches we hold it to be the duty of the authorities to extract maintenance from fathers who refuse or neglect to pay although they are able to do so. They are rogues, and they merit no sympathy.

However, this is not the difficulty in the real world, where some fathers are contumacious and many others cannot pay fully because they are maintaining two families on one wage. A democracy cannot restrict the right of spouses to separate, to co-habit or to marry again after divorce; and the electorate would be unlikely to welcome an attempt to introduce indissoluble marriage or to enforce different sexual rules for different income groups. For decades past, the poor have been emulating the behaviour of their financial betters and there may arise an irreconcilable conflict of values between the duty to maintain a family to the extent of available resources and the right to exercise choice by changing marital or sexual partners.

Neither administrative nor legal manipulation can extract quarts from pint pots, and because in these circumstances there is simply not enough money to go round, the courts and the social security authorities have come to pragmatic arrangements. As income support rates are pitched at subsistence level, courts will rarely make a substantive order against a spouse on income support. Moreover, as Professor Cretney summarises the present position; if both parties have incomes at or near subsistence level, the court, while not allowing the less impoverished spouse to throw on to the state the cost of supporting his dependents, will allow him or his family to keep not only a subsistence level of income … but also some additional financial incentive to continue in work. This is the central issue. The community of taxpayers already contributes in large measure towards the cost of family breakdown, and I see no method consistent with the basic tenets of a free and caring society to discharge it from that responsibility. Moreover, I am not aware of any pressing public demand for such action. The latest, the seventh, report on British social attitudes concludes that public opinion clearly favours more public spending to maintain the ability of the social security system to provide adequate and timely benefits to those who really need them.

I know as fact that there is a great general anxiety, shared on these Benches, about the effects upon children of the poverty of their lone parents. Accordingly, the proposed child support agency must be judged not only as a machinery for reducing government expenditure on income support by more efficient enforcement of child maintenance, coupled with the small inducement for mothers to go out to work, but in terms of the effect it will have upon public attitudes towards the family and family law generally.

The many criticisms of the Bill and the agency which have come from voluntary organisations working in the field express a unanimity of dismay that so ill-considered a project has reached the point of legislation. The agency will take over from the courts the determination by a non-discretionary—hence consistent—formula of the maintenance of children in some 2 million families, but the maintenance of their mothers will continue to be settled by the courts.

I have been unable to discover the rationale for that seemingly grotesque separation, although some sense might be made of it if the Government intend to turn a very much wider part of the present family jurisdiction of the courts into an administrative procedure. I hope that I am mistaken. I believe that family matters should be supervised by judicial institutions doing justice according to law. At the end of the day, members of broken families should not be thought of as clients of administrative agencies or as patients for whom adjudication is a form of treatment. We have to promote the evolving synthesis between law and welfare.

As it is, the technical and legal consequences of setting up the agency do not seem to have been examined. I wonder whether the Law Commission was consulted when the scheme was drafted. Bodies as different as the Law Society, the Legal Action Group and the Association of County Court and District Registrars complain of the Government's failure to deal with the consequential interrelationships of administrative and judicial procedures and policies, for example, in respect of agreeing maintenance and settling the ownership of the matrimonial home according to the principle of the clean break to which the noble Lord, Lord Mishcon, referred.

There would have been decided advantages for mothers if the new agency had been established as part of the family court on the Finer model. Indeed, it bears some resemblance to that committee's proposals for the enforcement of maintenance; but, wrenched out of the family context, the agency will destroy such coherence as the system now possesses and will undermine, for example, the intention of the Children Act 1989 to eliminate different categories of children and to ensure that all proceedings relating to one family will be heard in the same court.

The emphasis of the White Paper upon natural parents conflicts with the concept of the rights of the child who has been treated as a member of the family. There will be inequality of treatment between families because the Government state, without discussion, that the order of priority which should commonly prevail is that natural children ought to take precedence over stepchildren. This formula favours first families. It is astonishing that the most taxing problem of distributive justice and of the relationships between families is dealt with in the White Paper by the mere assertion of priority for natural children.

I have said enough to indicate the anxieties that these Benches entertain about the Bill to which we are giving a Second Reading. From these Benches we shall try to deal with as many of the difficulties as we can in Committee. But in our view the only satisfactory and compassionate solution lies in the establishment of a proper family court. The very high costs of establishing this new agency would have made a useful contribution to such a court.