§ 5.20 p.m.
§ Second Reading debate resumed.
§ The Lord Bishop of Gloucester
My Lords, perhaps I may first apologise to the House, and to the noble and learned Lord the Lord Chancellor, for the fact that I may have to leave before the end of the debate. I have a long-standing commitment in Gloucester.
I wish to remind the House briefly of the Churches' long-standing interest in the fate of children no longer in the care of one or both of their natural parents. What is now the Children's Society, for example, was founded well over 100 years ago by an anglican layman, Edward Rudolf. Many noble Lords will remember that its original title was the Central Home for Waifs and Strays. Barnardo's was founded even earlier than that. In those days it was said that there were 25,000 homeless children in London, living on their wits and with no legal protection whatever.
Before the arrival of the welfare state during this century, it was predominantly church-based organisa-tions which cared for those whom we then called the unmarried mother and her children. Threaded through that history has been a determination to protect and to provide proper opportunities in life for children who, for whatever reason, must be brought up by only one parent or without either natural parents.
Surely it is basic to Christian belief and teaching that the Divine order of creation envisages responsible, caring parenthood for every child and by both father and mother. But when that ideal pattern is broken and a lone-parent family results it is only right that the other parent—who in nine cases out of 10 is the father—should at least be recalled to his financial responsibilities if he can afford it and, if necessary, through legislation. I am confident, therefore, that there will be widespread support from the Churches for the principles which underlie the Bill; that is, parental responsibility and the primacy of children and their needs.
It must also be right in principle to provide incentives for lone parents to find work and so reduce dependence on income support from the state. It is a sombre thought that there are now more than 1 million lone-parent families; that is approximately 15 per cent. of all families with children. Perhaps an even more sobering reflection in terms of the future of our children in Britain is the fact that more than 75 per cent. of those 1 million lone parents need income support to make ends meet.
The figures already referred to, which were provided by the Family Policy Studies Centre, indicate that during the 1980s of those lone parents claiming income support the proportion who received maintenance payments from the absent parent fell from 50 per cent. to 23 per cent. The same research suggests that by far the biggest cause for the increase in the number of lone-parent families, with all the attendant handicaps for children, is the catastrophic-ally rising rate of divorce.
804 Those of us in the Churches and elsewhere who do our best to support the stability and permanence of the marriage bond are bound to see in the problem of child support the inevitable judgment that falls upon a society which cannot, it appears, prevent tens of thousands of its citizens, nearly all of them men, from simply walking away from the responsibilities that they have accepted in becoming fathers, in many instances within the married state.
Of course we should pay great heed to the constitutional implications of the Bill, argued so prophetically by the noble Lord, Lord Mishcon, and to the virtues of family courts, argued by the noble Lord, Lord McGregor, and no doubt by others. Nevertheless, I believe that the creation of a single, powerful and well-publicised child support agency could be a significant symbol of the nation's will to grapple with the problem of the children who are at risk and suffering as a result of family breakdown.
That is to be warmly welcomed, first, as a sign that society as a whole should accept moral responsibility for all its children and, secondly, because it recognises that the present system for assessing and enforcing child maintenance is in bad need of reform. Within that framework of broad welcome there are bound to be reservations and criticisms from those with particular concerns and interests in the welfare of children and of their parents. No doubt they will have to be dealt with in detail during the later stages of the Bill.
I wish to raise a particular matter which has already attracted comment in the press and in the speeches that we have heard this afternoon. I refer to the proposal to reduce the income support of a lone parent who is not willing to disclose to an investigating officer from the agency the name of the other parent of the child. I believe that, if successful, that expedient would coerce a number of men into some financial responsibility for their children. Furthermore, it would marginally increase the payments coming into the Exchequer from absent fathers. However, one wonders whether such financial benefits would be significant. The White Paper states that only in a small minority of cases is the caring parent reluctant to identify the other parent. Therefore, against that small financial gain to the Treasury we must set the most probable effect of reducing the income support of a lone parent; that will be further deprivation for the child or children.
The Churches can offer plenty of evidence showing how difficult it is for any family nowadays to manage on income support. It is unrealistic to suppose that a mother's income at that level could be reduced by up to 20 per cent., as the White Paper suggests, without the child also suffering.
We appear to have another example of a piece of well intentioned legislation shooting itself in the foot. If we really believe that children come first would it not be better to offer even a small maintenance disregard for lone parents on income support? In other words, would it not be better to substitute the carrot for the stick when dealing with mothers 805 reluctant to name the fathers of their children, particularly as the stick may well land on the children as much as on their mothers?
That may appear to be a small issue against the background of the main provisions of the Bill. Nevertheless, it serves to indicate how even small blemishes might expose the Government to perhaps unjust suggestions that they have allowed the so-called interest of the taxpayer to distort or obscure the altogether noble and proclaimed aim of putting children first.
The problem of the rising social security costs of lone parents no doubt needs to be addressed. However, the Bill suitably amended will, one hopes, be seen not in that context but as part of a concerted programme of social reform which supports marriage and family life and reduces divorce and family breakdown as well as offering realistic and practical encouragement to the victims of family breakdown.
§ 5.30 p.m.
§ Baroness Faithfull
My Lords, I support the principles behind the Bill; namely, that priority must be given to the well being of children. It is in accord with the Children Act 1989 that the well being of the child is paramount.
It is agreed that an awesome responsibility lies with parents for the care and maintenance of their children, whether within the family or by parents who are separated or divorced. Surely it is right that wherever possible and practicable the parent who has left the matrimonial home—usually the father—should con-tribute to his child's maintenance and in most cases should maintain a parental relationship.
I support the concept of a formula—but only as a guideline—which could establish consistency of assessment throughout the country. According to the Bill, it is recognised that the caring parent would be relieved of pursuing her husband for child maintenance as that would be carried out by the agency.
Those principles are surely right. However, it is difficult to accept that the structure, procedure and methods laid down in the Bill to implement those principles are wise, practicable or, indeed, acceptable. Furthermore, the setting up of an agency within the social security system with a non-negotiable formula will be costly and there is no proof that it will be cost-effective.
The system will be divisive: on the one hand, the agency will deal only with child maintenance; on the other hand, the courts will deal with custody, access, education and housing. Therefore, parents will need to deal with both the agency and the courts. The principle of one door on which to knock, which was established in the Social Services Act 1980, will be abandoned. The diversification will be confusing to parents. Should we not consider those parents who have the care of children?
The very nature of the social security service, as with the Poor Law, makes it unpopular, albeit essential to the needy. However, it is not always acceptable to those outside the social security system. As one who has had to take people to social security offices, I cannot understand how we can help parents 806 if they must get into the social security system when, in the ordinary way, they are not part of it. I admire enormously those who work in the social security system. It is not their fault that visiting a social security office is unacceptable. That is the way it is. It was like that with the Poor Law and it is like that with social security.
The formula will be worked out on a computer and that will surely be inflexible and not negotiable. It must be acknowledged that personal relationships interact with financial arrangements. I do not believe that a computer can take into account personal relationships. As I understand it, child maintenance orders go to the agency which must implement the formula through the computer. Can the computer cover all eventualities? As I said, I understand that whatever comes from the computer will not be negotiable.
I cite a few cases. For example, a husband with considerable financial means voluntarily agrees to pay child maintenance way above the figure of the formula. Later there is a disagreement between his former wife and himself and it is usually about access or education. Neither of those matters is the responsibility of the agency but is the responsibility of the courts. He can go to the agency knowing that he will pay less maintenance. Thus, the child will lose out.
Secondly, let us take the case of a wife who negotiates with her husband to forgo receipt of maintenance but to keep the matrimonial home. That was a matter touched on by the noble Lord, Lord Mishcon. If there is a dispute between them—and I repeat that it is usually about access—will the husband then negotiate through the formula? If so, the mother may lose the matrimonial home.
On appeals, as I understand the Bill, if an appeal is made against the figure put forward by the computer, the appeal goes to a higher member of staff within the social security office. If the appeal is an internal social security matter, then an aggrieved parent has no outside channel of appeal. Therefore, there is no access to a legally-aided hearing in the courts. Perhaps the noble and learned Lord will explain how such a system is commensurate with natural justice because in a court, the complainant can be heard.
As regards the relationship between the agency and the courts, as stated earlier the agency deals only with child maintenance orders and the courts with custody, education and housing. If the agency fails to get a man to pay maintenance, I assume that the case must go to court. If he continues to refuse to pay then I believe that the final sanction is prison. In that case, there will be no maintenance for the child or for anyone, but the country will have to pay for the man in prison.
Could not the principles of the Bill be dealt with differently? Could not the Bill transfer the responsibilities of the agency to the courts? I believe that a figure of 4,000 staff was mentioned. Could not those staff be appointed to the courts? If they were so appointed, they would work with the probation service and the courts. The parents would have only one place to go to. Surely those extra staff and the 807 setting up of an agency will be very costly. Even if only half of those staff were appointed to the courts, I believe that more money would be brought in.
Under the Children Act 1989 a first step was taken towards a family court. Could not cases of divorce, including maintenance, be dealt with by the family court? That was a point made by the noble Lords, Lord Mishcon and Lord McGregor. Could not account be taken of the Law Commission's report Grounds for Divorce? If that report takes the form of legislation—and we hope that it will in the next Session—it will provide for a period of one year in which parents can decide between themselves what is to be the position as regards access and maintenance. I believe that if such legislation were to be enacted, there would not be so many problems.
Her Majesty's Government are right to promote a Bill to minimise the non-payment of child maintenance. But for both emotional and financial reasons I believe profoundly that it should not be executed by way of an agency, which is an administrative procedure using a non-negotiable formula. Such matters should be dealt with not by the executive but by the courts.
I am given to understand that a great deal of the Bill is based on what is happening in Australia. However, I was advised that a judge who has just returned from Australia feels that the legislation is not working there. I received that information second-hand and have not been able to contact that judge. However, I hope that the noble and learned Lord will agree that the work should come entirely under the jurisdiction of the courts.
Finally, perhaps we should consider the people concerned; that is, the parents. As I said earlier in my speech, the parents will not like the legislation; they will prefer the matter to be dealt with by the courts.
§ 5.40 p.m.
§ Lord Houghton of Sowerby
My Lords, on the cover of the glossy magazine that we obtained from the printed paper office it says, Children Come First. They do not come first in your Lordships' House; they come third on the day of this Second Reading of the Bill. I thought we had dealt with the intrusion of Statements and debates on Statements in the middle of the business of the day. If we have not done so, then we should have done so. The House of Commons does not behave in this way, allowing Statements made in the House of Lords to be pushed on it right in the middle of a debate. It bides its time and so could we. This is a short debate. It could have been completed before we had the long Statement on the Woolf Report on prisons and the inevitable tail provided by other noble Lords on such an important and complex matter.
This Bill is not a Child Support Bill; it is a taxing Bill. I am surprised that the Chancellor of the Exchequer has not certified it as a money Bill and included it as a schedule in the Finance Bill. It imposes a form of taxation upon an identifiable section of the community who will be mostly men; there are to be 808 inspectors who will assess what they shall pay; determine the method and the order in which they shall pay it, and have the power to enforce it.
In short, this tax is PAYT—pay as you are told. It is levied by a separate arm of bureaucracy which is to be especially created for the task. The Bill reflects the outburst of the former Prime Minister, Mrs. Thatcher, whose concern for children came second to not allowing absentee fathers to get away with nonpayment of maintenance. It is a middle-class approach to the conventional obligations of men towards their children. And it goes much wider than that, even in the context of conventional thought.
My noble friend Lord Mishcon asked many penetrating questions. This is merely the skeleton of the taxing machine which the Bill will erect. There is much that we shall want to know about it; there will be much that we shall not be able to find out about it until the regulations appear. We shall then not be able to change them. We shall have to swallow them or reject them as a whole. That is the position we are in.
One of the matters to consider is from where we shall obtain the army of bureaucrats—the child support inspectors. They will have a task which is probably foreign to most of them. If they come from the Department of Health and Social Security they will know nothing about taxation or about enforcing payments. They cannot even collect their own contributions. That is done by the Inland Revenue. If it is to be efficiently done, I cannot more strongly recommend other than that the inspectors should be drawn from the Inland Revenue who know what the situation entails and are experienced in that kind of activity.
However, we must presumably take the Bill as it stands and see what we can do with it. We must acknowledge that the Bill will cause far more tears, anger, resentment and violence than its authors imagined. It is an intrusion by a new arm of bureaucracy into the most delicate, emotional and difficult aspects of human relationships. It concerns men, women and their children. In the field of child support we all know that we are dealing almost completely with cases of marital breakdowns, disorders and enmities; in many cases love has turned to hate; women do not want to hear any more about their ex-husbands or men friends. Yet in our diligence to collect money and ensure that men do not get away with non-payment of maintenance, we shall penalise women who refuse to pursue their husbands for support if at the same time they seek social security to support their children. They will be fined for taking that step; that is quite wrong. I do not know with what skill, understanding or justice the public detective service—mostly conducted at public expense—will pursue husbands and seek to establish the fulfilment of their obligations to their womenfolk.
The Bill is more concerned with support to the Treasury than support to children. Most of the people in real need on account of the breakdown of the marriage and failure of husbands to pay contributions are in receipt of social security benefits, and they will profit little or not at all from money which may be dragged out of the absent fathers. I do not know 809 whether noble Lords in this House will react as men often do; but I can assure the House that when men are confronted by the kind of situation that may arise when they are accosted and tracked down by the child support officer, they will react in a disagreeable way.
Not all men are responsible for the breakdown in their marriage. Not all women are incapable of looking after their children financially. It may be that under these rules the formula set out in one of the White Papers will be followed: that the joint resources will be brought to bear on the amount which eventually has to be obtained from the absentee father.
One can understand the point of view expressed in a sensitive letter to The Times newspaper this morning by representatives of a group of child charity organisations: that this is the most difficult and delicate field of all. Some regard and respect must be given to people's attitudes towards the partners and the help that is sought to be given in circumstances where they would much rather not have it.
Since when have parents been wholly responsible for the support and upbringing of their children? We do not ask them to pay for their education or health care. They receive housing benefit and protected housing conditions. The parents receive child benefit payments which are tax free. There are numerous supports which are given in the wide range of social benefits for children. What then is so sacrosanct about making the man pay? He has probably set up another family. That is acknowledged in the approach to the resources that a man may have to devote to his old family. It is intolerable that we should pursue in this way the old-fashioned idea that fathers and breadwinners are responsible for the upbringing of their children. We have a new concept of their position in society.
We are now saying that our children are so precious to the future that we must take care of them as never before We must educate them fully; there must be more higher education; they must be given training and jobs must be found for them. We must compete in every way with our European and world competitors whose provision for children is much better than our own. We shall not squeeze and freeze the child benefit payment for several years. We should double it now in order to get more support for our children. We do not hear anything of that kind from the Government. Where are these men who are hiding away? Some of them are underneath the arches. I am astonished that on the subject of homelessness no one has referred to the major report that I had conducted in 1965. The report considered the extent of homelessness and the causes of it. The subject has not been studied so fully since. A great many people have decided to walk out, leave everything behind and take to the road. They are afraid of going back. They are afraid of life as they knew it and do not want to go back. There are plenty like that.
Among young people one gets the rejection of home conditions; but that is by the way. When I see what the child support officer is free to do, we shall need to know a great deal more about the procedures that he will follow. One of the matters that I looked at 810 most carefully was the relationship between the child support officer and the Inland Revenue. There is a great deal of loose talk heard about the poll tax and other matters to the effect that if one wants to know about a person's ability to pay, the Inland Revenue could tell you if it opened its books.
I have looked at Schedule 2 on page 35 which states in paragraph 1(2):In such a case, no obligation as to secrecy imposed by statute or otherwise on a person employed in relation to the Inland Revenue shall prevent any information obtained or held in connection with the assessment or collection of income tax from being disclosed".I ask for a very firm assurance that that does not mean that the confidentiality of a taxpayer's private affairs is to be broken to let the child support officer have a free run in order to find out about a person's resources and likely ability to pay. I have been assured that this provision relates only to tracing people, and that it is not intended to breach the confidentiality of the Inland Revenue.
I shall not delay the House on the imperative need for keeping the confidentiality of the Inland Revenue. I assure noble Lords that if the books of the Inland Revenue are to be opened to other departments to any extent and to child support officers, police officers and any one else of that kind, then the efficiency of our tax system will be seriously impaired. We cannot give to child support officers information that the Inland Revenue does not give under the Royal prerogative in cases involving criminal offences. Information is not given in that regard except in the rare cases where the Inland Revenue puts its prerogative in the hands of the court to decide.
These are important matters. Perhaps the Inland Revenue should be there to help the child support officers to trace someone; and information must be supplied by employers and others who hold information. My noble friend Lord Mishcon, who penetrated this Bill with great skill and feeling, referred to the powers that these officers will have. The approach suggested is not right. It should be combined with measures that have a wider import altogether.
Widowhood is a respectable condition, and the social security system rightly shows concern for the bereavement and possible plight. It provides for disablement, sickness and constant attendance. It does many things for many people. That is all part of the structure of our social security system which is intended to put the citizen in a reasonable relationship with his fellow men and women. The separated or divorced wife has never been regarded as a respectable woman. In many cases it is believed that if she is in that condition, it is her own fault. We should now regard divorce, separation and the exposure of children on that account as a hazard of considerable relevance to life as it is at the present time.
It would be a good idea for the social insurance scheme to include this problem as one of life's hazards for men and women and for the benefit of children. There should be no blame attached. People should be allowed to make fresh starts to their lives. Children cannot come first all the time while mothers and 811 fathers have to reconstruct their own lives and try to get something from them. My approach may be unconventional, but what I suggest will come about one day. We are saying that children should come first so we should put them first. We shall have to discard a good deal of conventional thinking about parental obligations. We shall certainly have to get rid of the idea that men should not be allowed to get away with their obligations. There is not much that men are allowed to get away with these days. I see no reason why they should be held rigidly in almost any circumstances to a conventional approach to the obligation to support their children.
This foretells that the Committee stage will be very penetrating. The Government should be ready with some indication of what the procedures and guidelines are to be in the exercise of the responsibilities of child support officers. This is a risky venture into a new field of human relationships which, under the system proposed, offers the danger that in the end we shall do a great deal more harm to children than is caused by the present system.
My final word is this. Many men, if required to contribute to the support of children, will demand access. Many separated wives do not want them to have that. They will often forgo payments from the husband in order that he shall not disturb the household long after he has left; long after he has obligations elsewhere. I have had no personal experience of this. I have no children, and I have not been put in this situation in any sense at all. But 10 years of broadcasting on social problems—many of them human, domestic and personal—and 25 years in the House of Commons brings one very close indeed to this problem. The fundamentals of it are the same today as they were 25 and 30 years ago. All we are doing now is to chase people who are defaulters. We turn defaulters into delinquents, and that is what this Bill is intending to do.
§ 6.1 p.m.
§ Lord Simon of Glaisdale
My Lords, your Lordships will recollect the arresting opening of the dystopian novel by Aldous Huxley, Brave New World. It opens in a laboratory with a row of test tubes in which human ova are being fertilised and increased. I do not think even those who in the last Session were favourable to in vitro fertilisation would wish that to be a universal system. On the contrary, what we have and what is almost universally applauded is the nuclear family to bring up the young who are the future of our society. Perhaps the cover to which the noble Lord, Lord Houghton, referred presents an idealistic picture. Nevertheless it shows what is generally accepted—the felicities and ecstasies that can exist in a nuclear family where there are young children.
It is true that at the bottom right-hand corner of the cover there is the child of a broken home. It is with him and his sister that your Lordships are concerned today. Nevertheless I venture to reject entirely what was seemingly suggested by the noble Lord who preceded me, that parents have no place to play in the 812 upbringing of a child in the context of the welfare state. On the contrary, society has three jobs to do in this connection. The first is to see that the father plays his part in the maintenance of the child. The noble Lord, with his free-ranging mind, alone in your Lordships' debate, asks why should that be so. The answer is that it should be so because society affords to the father privileges in relation to the upbringing of his child. It does that through a long tradition, believing firmly on the basis of tradition and long experience that that is of benefit to the child. It has not been so in every society. In Sparta, the child was brought up largely in the public domain. I cannot believe that the noble Lord, Lord Houghton, would really wish to see that in our society. Therefore, the first job of society is to see that the father provides for his child. That is the first salient motive of the Bill.
The second job is to see that the child does not suffer from any inadequacy of the father in what is required of him. The noble Lord quite rightly refers to all the benefits that the social services afford. That is a continuing obligation on society because it is on the children of society that the continuance of society depends.
The third job for society is to see to it that there is less breakdown of marriage. The right reverend Prelate, who I am sorry to see has left the Chamber, mentioned that one of our objectives was to see that there was less divorce. The figures given in the White Paper are indeed striking. In 1971, which was when the Divorce Reform Act 1969 came into force, there were fewer than 600,000 one-parent families. In 1986 there were well over a million of them, and the figure is rising. That is the third function of society, and one we should not forget even when we are concentrating on the first, and to some extent, on the second.
At the moment, as the White Paper points out, these matters are dealt with at a great number of courts, most importantly in the magistrates' courts, and the White Paper rightly points to the wide discrepancy of decisions. That is so partly because they are fallible human beings who have to make the decisions and it is partly because of the very wide discrepancy of circumstances. What the Bill does is to replace for the fallible human variation of view, a bureaucratic—that was the word rightly used by the noble Lord, Lord Houghton—formula, a bed of Procrustes. That can quite as well be capricious. Is it the toes that are cut off, or the hair if one is lucky enough to have it, or the top of one's head? We must not think that we are going to get away from variation of the circumstances by applying this formula.
I would draw attention to the extraordinary nature of the formula. It is on page 30, in Schedule 1. I ask your Lordships: how many maintenance debtors or creditors, how many citizens' advice bureaux, can possibly make head or tail of what it means? It is just as incomprehensible as the ancient Egyptian hieroglyphs must have been to an illiterate peasant in the Nile delta. It would not matter so much if the background of the Bill were less bureaucratic. The noble Lord, Lord Mishcon, referred to that. My noble and learned friend on the Woolsack rather disarmingly said that there was an unusual number of 813 provisions for regulations to be made by the Secretary of State. The noble Lord, Lord Mishcon, put it rather more harshly. He suggested that this is no more than a skeleton Bill and as such he implied that it was unconstitutional. Certainly it is gravely derogatory of parliamentary control. So what we have is a bureaucratic formula which is to be administered, as has been pointed out, by a considerable bureaucracy: 4,700 people of whom 2,200 are to be newly recruited and added to our existing bureaucracy. Is that what we want?
However, one hardly stops at that point because the child support agency is divorced from the courts which have to deal with wife maintenance. It is common experience that one cannot possibly consider maintenance for the children of the marriage separately from that for the wife. However, it is more than that; it is a step away, as has been pointed out by many noble Lords today, from the concept of the family court.
My noble and learned friend on the Woolsack introduced a Commons amendment to the Courts and Legal Services Bill which provided for specialised county courts of matrimonial jurisdiction. The noble Lord, Lord Mishcon, greeted it warmly as a step towards the family court. I ventured to support him in that view. However, my noble and learned friend put it more delicately but did not in fact dissent from that view. He said that it was a step towards a system of uniform family jurisdiction which may achieve what had been described in other terms—the "other terms" being the family court.
I know that the Government have now got the matter belatedly under consideration. However I am bound to point out that a system of family courts, a hierarchy of family courts, was spelt out in detail and proposed to the Morton Royal Commission on Marriage and Divorce in the mid-1950s. Thereafter it gathered support, notably from a very experienced matrimonial judge, Judge Jean Graham Hall. After that time, it received support from the Family Law Committee of the Law Society and then from the council of the Law Society. That support was voiced in your Lordships' House by the noble Lord, Lord Mishcon, with his usual cogency. Since that time it has received further support from a Member of this House with incomparable experience and zeal; namely, the noble Baroness, Lady Faithfull. It was subsequently endorsed by the Finer Report on One-parent Families, as the noble Lord, Lord McGregor, has already pointed out. We very much regret the premature death of Mr. Justice Finer, but it is splendid that his lieutenant on that committee is present in the Chamber in the form of the noble Lord, Lord McGregor, to draw attention to what was spelt out in the report in favour of the family court.
I have another question for my noble and learned friend. By the time—I hope not too distant—that the Government have made up their mind preferably in favour of family courts, will it be too late to marry the child support agency into a system of family courts? It has been envisaged that the family court should have two branches: one for adjudication and the other for 814 welfare. Welfare would include conciliation, but it would also include matters which will be the concern of the child support agency if it is accepted.
I have a further question for my noble and learned friend, although it is probably something which I should have found out for myself. However, I was unable to do so. What will be the effect of the formula on the normal nuclear family which has broken up, where the husband will have less earning power and below average earnings because, as the White Paper pointed out, these marriages break up earlier? That situation was envisaged at the time of the 1969 Act. In the debate which took place recently, I mentioned that my noble and learned friend Lord Hailsham had prophesied that the effect of the 1969 Act would be more divorce and more breakup of marriages. That was also seen by the proponents of the matter, although it was not announced until afterwards.
After that Bill had passed into law, the very able parliamentary officer of the Divorce Reform Group, which was the pressure group behind the Bill, said that society must make up its mind and get used to the idea that marriages will now normally break up in the early 20s of the spouses. That is spelt out by the White Paper which your Lordships are considering. Taking people of that age and their earnings into consideration, can my noble and learned friend say what the formula puts forward in the case of a typical family which the White Paper suggests has one child under the age of five years, with the other, presumably, being about seven? At present, I am completely in the dark as to whether the formula will produce anything more favourable for the caring mother living on her own with her children.
We have all applauded, with the exception of the noble Lord sitting to my right, the object of making the father of a broken home continue to support his child. That is very much in the main tradition, if I may say so, of the parties on the Opposition Benches. Not for the first time, the noble Lord is out on his own. We support that aim. However, I am bound to say that we regard the Bill with the utmost chariness and wariness. We shall certainly have to examine its more bureaucratic aspects with the greatest care in Committee.
§ 6.18 p.m.
§ Lord Stoddart of Swindon
My Lords, when the White Paper was published on 29th October the Government invited comments upon it and said that they would be taken into account. However, it is certain that those comments have not been published. Moreover, just a few weeks after publication of the White Paper, we now have a very complex Bill before us. I am surprised that the Government did not pay more heed to what was said and publish the comments received from various organisations with the expertise. In such a matter it would have been just as well to have had a pre-legislative committee or hearing on the Bill. Even at this late stage, especially bearing in mind that the Bill has received little wholehearted support in the debate so far, it may be as well for the 815 Government to reconsider their attitude, to withdraw the Bill and to set up a pre-legislative hearing before they get themselves into a great deal of trouble.
I too congratulate the noble and learned Lord the Lord Chancellor on the manner in which he presented and explained the Bill. I also congratulate my noble friend Lord Mishcon on his admirable speech and his reservations about the Bill which I share. The Bill is not about putting children first but about saving the Exchequer an estimated £400 million per annum in social security expenditure. I am not opposed to attempts to reduce expenditure on lone parents, but the Bill, with its draconian powers and anti-father bias, is not the best way to achieve a reduction in the cost of lone-family support. The need is to reverse present attitudes toward marriage and the family and to make every attempt to encourage stable and lasting relationships, especially where children are involved.
The Government and the Bill fail to recognise that children need emotional as well as financial care and that emotional support is best provided within a stable family and preferably within a two-parent home. The Bill does nothing to bring about that position. Instead, it seeks to make scapegoats of fathers and ensures that they will be pursued with vigour and forced to pay for the maintenance of their children. There are no provisions in the Bill to ensure that they have access to their children and an opportunity to form relation-ships with them. Make no mistake about it —fathers are just as entitled as mothers to that right.
Having said that, I welcome the idea of laying down a formula for the level of such support, although even that will need some modification if it is to succeed. Whether that formula needs a separate agency to administer it is open to question. My noble friend Lord Mishcon and other noble Lords have questioned the need for a huge agency to administer the system. I support my noble friend and other noble Lords in their desire and call for family courts to be considered and set up.
I now return to the subject of access. I understand that, in theory at least, access and financial provision should not be linked. However, in practice in many cases they are inextricably linked in the minds of fathers. We have little information about how many maintenance defaults are due to access problems. Many men are willing to pay proper maintenance for their children but often find that they are wilfully obstructed from seeing their children or forming any relationship with them even when access has been granted by the courts. The Bill does nothing to address that problem, and it is a serious omission that should be redressed. I understand that in the United States, where there has been long-established legislation for the efficient collection of maintenance payments from non-custodial parents, new laws to ensure access had to be introduced before the enforced collection of maintenance became generally acceptable and efficient. We should study the experience of the United States.
The Bill is highly complex and as a result many details of the enforcement system are, as my noble friend Lord Mishcon said, to be brought in by 816 regulation or advice which will have the force of law. Consequently, if the legislation is passed unamended there will be no opportunity for the House and another place to discuss the details of the scheme, and there will be no scope to improve the affirmative and negative orders which will be placed before Parliament if the Bill receives Royal Assent. I understand that 100 references to orders are contained in the Bill. Therefore, if the Bill is passed unamended we shall be handing over to the Government powers to introduce a most illiberal and oppressive regime against a section of the population which is so often unjustly maligned by society.
That brings me to the Bill's provisions relating to child support officers and inspectors which are contained in Clauses 11 to 13. Although they have been referred to by my noble friend Lord Mishcon, it is worth referring to them again. In relation to child support officers Clause 11 states:(1) The Secretary of State shall appoint persons (to be known as child support officers) for the purpose of exercising functions—
If we pass the Bill unamended, the Secretary of State will have absolute power to give, without Parliament's approval, draconian powers to those child support officers.
- (a) conferred on them by this Act, or by any other enactment; or
- (b) assigned to them by the Secretary of State".
Clause 13 relates to inspectors. My noble friend has already mentioned the fact that an inspector will have the power,
Further, subsection (5) provides:
- "(a) to enter at all reasonable times any premises which may be inspected under this section; and
- (b) to make such examination and enquiry there as he considers appropriate".If required to do so by an inspector exercising powers conferred on him by this section, any person who is or has been—
- (a) an occupier of the premises in question;
- (b) an employer or an employee working at or from those premises;
- (c) carrying on at or from those premises an agency or other business of a kind mentioned in subsection (3) (b);
- (d) an employee or agent of any person mentioned in paragraph (a) to (c),shall furnish to the inspector all such information and documents as the inspector may reasonably require for the purposes mentioned in subsection (2)".Wide and sweeping powers are to be given to inspectors to pursue not criminals, thieves or muggers, but parents. The Government have overdone that part. This country is becoming less and less of a democracy and more like the centralised bureaucratcies of Eastern Europe which are now being discarded by so many countries.
We then have to consider the collection of maintenance payments. Under the Bill it is not just wages and salaries that can be attached, and money, assets and property, including unessential furnishings, that can be seized; but, if none of those things is available, it will be possible to commit a defaulter to prison. As far as I am aware, that will be the only civil debt for which a prison sentence is available. It is remarkable that we should introduce such a provision into the Bill.
I understood that we were trying to keep people out of prison. Yet in the Bill there is a provision to commit 817 to prison people merely because they have incurred, not a tax debt, but a civil debt. It is quite disgraceful that parents in financial default should be treated in a worse manner in many cases than thieves, muggers and what-have-you. What is more, bearing in mind that women are increasingly becoming quite independent, going out to work and indeed leaving their children in the care of their husbands, what is society going to say if a woman refuses to pay her assessed maintenance? What will society say if we commit a woman to prison? Will society be happy about that? Under this Bill it will be possible, as I have said, and surely we are not suggesting that we should increase our prison population by sending to prison fathers or mothers who default on their maintenance payments. Surely there are many other punishments available, including community service orders, which would certainly be far better not only for the families concerned but for society as well.
As I said earlier, I believe that this is a bad Bill. It contains draconian measures which are against the normal practice of our democratic society. I do not believe that they are acceptable; nor do I believe that they will deal with the very serious problem over maintenance payments that exists. I hope the Government will listen to what is being said and to the voices that have been raised against this Bill, because it will be an administrative nightmare. I hope that they will remember the advice they received about the poll tax, which we said would be an administrative nightmare and something that could not be properly administered. Bearing these things in mind, I hope that even at this stage the Government will take the Bill away and look at it again. If they do not, then I hope that your Lordships will amend it during later stages beyond all recognition.
§ 6.32 p.m.
§ Lord Henderson of Brompton
My Lords, while I do not go all the way with the noble Lord, Lord Stoddart of Swindon, or indeed with the noble Lord, Lord Houghton of Sowerby, I have a good deal of sympathy for some of the things they have said. Speaking as a mere father, I feel that "harassment" is one of the unwritten words in this Bill and those who use invisible ink will see it quite clearly on every page.
However, I am glad to be able to say that I support the intentions of the Bill although I believe it should be amended in very drastic ways. Also, greatly daring, I am going to express the opinion that I like the way the Bill is drafted, despite what has been said by the noble and learned Lord in front of me and by the noble Lord, Lord Mishcon. Incidentally, the use of formulae was cordially recommended by the Renton Committee and I do not dissent from the formulae in Schedule 1 at all. However, I sympathise with the constitutional and other points made by the noble Lord, Lord Mishcon, and also by the noble and learned Lord, Lord Simon of Glaisdale, though, as I say, I like the drafting of the Bill.
It is indeed the intention of the Bill that children should come first but occasionally I feel that, with the best will in the world and perhaps inadvertently, the Bill puts the child last. In pursuit of the Bill's purposes 818 you have a number of licensed "hounds" who may harass the parent for the purpose of serving a maintenance assessment, and indeed they can harass the parent for the enforcement of payments of child maintenance. I think that in a way there is a feeling that the defaulter must not be allowed to get away with it—that this is of paramount concern and that it is unfair to those who stick with their wives and children and look after them if those who run away from them are allowed to get away with it. This system, which is instilled into this corps of "harassers" may well be against the child's interests. He may not wish to have his father pursued in this way and indeed he may not wish that his mother should be harassed into revealing the whereabouts of her absent husband, when she may have very good cause for withholding the information.
I understand that the mother may lose up to 20 per cent. of her personal allowance if she withholds this information. That is not to the benefit of the child, I would say; yet that is one of the provisions of the Bill. It looks as if there are something like 30 per cent. of lone parents who fail to comply with requests to help trace the fathers of their children. I may have got the percentage wrong but certainly it is not anywhere near a majority, and it is those people who are going to be harassed, as I say.
Therefore I would merely ask the noble and learned Lord the Lord Chancellor whether in the pursuit of fugitive fathers and in the securing of maintenance enforcement—which, incidentally, I support—there is any provision for these "hounds" to be less than relentless. Can there be incorporated into the provisions of the Bill some provision for relaxation where it appears to be in the paramount interest of the child that the uttermost pursuit of the law conferred by this Bill should not actually take place?
When the noble and learned Lord the Lord Chancellor spoke, he referred to cases of incest or rape, where matters would not be pursued so rigorously. There must be other cases as well. For instance, what about a father who is mentally ill, whose spirit is already broken or who is perhaps suffering from severe depression? It is not right to pursue people who are in that sort of condition, especially as, as the noble Lord, Lord Houghton, said, they might well be underneath the arches, sleeping in the open and unable to put themselves on their feet, let alone look after their wives and children. Therefore I should rather like to know what the noble and learned Lord the Lord Chancellor might say about relaxing the powers or giving this new corps of harassing servants of the Crown some kind of discretion in the cases I have mentioned. If that could be done, it might possibly save some amendments to the Bill during the Committee stage. I would certainly hope so.
I should like to support the noble Lord, Lord Mishcon, in what he said about family courts. I wish to goodness they were with us now, because they would be able to offer, I imagine, some kind of conciliation service. That is what we really need, but the family courts still seem quite far away. After all, if there were family courts they could be the authority 819 for assessment, collection and enforcement of payments for child maintenance. Surely it would be wise now to incorporate into this Bill some kind of conciliation service. Such a service could take much of the pain out of the process involved in obtaining child support from an absent parent and it could ease the tensions following a marital breakdown.
I do not myself see that the child support agency, which, as I say, is rather cast in the role of hound of the parents, could possibly take on the guise of conciliator, which would not fall naturally to it. Perhaps the noble and learned Lord the Lord Chancellor envisages that it could fill that as well as its present role. If not, who could do it? I should have thought that the House would agree that a conciliation service was essential in this context.
Another general point which has been made concerns how the recent changes in the income maintenance system impinge upon the Bill. I do not know how single parents in work may be affected as regards their access to the social fund. A number of points of that kind should be pursued in Committee, particularly the need to increase basic levels of income support, to reform the social fund and to maintain the value of child benefit.
The breakdown of the family and all that it entails for the child is bad enough for children in relatively prosperous homes. The troubles are compounded for the poor, and every consideration should be given to children who suffer doubly from poverty and from family breakdown.
In one of the interruptions to our debate we heard the Statement on the report of Lord Justice Woolf on the prison system. Here I find myself very much in accord with the views of the noble Lord, Lord Stoddart of Swindon. It is infinitely depressing that on the very same day we are considering a Bill which contains a provision for sending parents to prison for maintenance default. That is disgusting. Could we not take a risk, have some imagination and get rid of Clause 32 altogether? This coincidence of the Statement on the Woolf Report and our consideration of this Bill gives us good cause to do so. Thus we should strike a minor blow in the battle to keep out of prison so that they may be otherwise dealt with those who come up against the provisions of the legislation.
In addition we should think about the child brought up not only in an emotionally fractured family but in dire poverty because that young person is likely to enter the world of juvenile crime and thereafter, if we do not rescue him from it, to lead a life of crime. It is well understood that the combination of a fractured family and poverty, among other things, leads to a life of crime. Those of us who are fortunate enough not to have been brought up in a fractured family or in poverty really should exercise our imagination and consider whether, if we had been brought up in those surroundings, we should not be early candidates for the criminal justice system.
Given the really fragile position in which young people in broken and very poor homes find 820 themselves, the impact of this Bill should be modified. The reforms which I am suggesting are those which alleviate the hounding of both parents which could be detrimental not only to those parents but also to the children.
§ 6.45 p.m.
§ Lord Meston
My Lords, if your Lordships had not realised before this debate that the Bill gives rise to mixed feelings it must surely be appreciated now. This is a Bill born of the view that not enough fathers are paying towards the support of their children and that those who do pay are not paying enough. I was going to say that one can but agree with those views, even if it means pleading guilty to the charge by the noble Lord, Lord Houghton, of middle-class morality.
I assume that the answer to the question posed by the noble and learned Lord, Lord Simon of Glaisdale, is that in the normal typical case of two parents with two children the father will henceforth be expected to pay rather more than he might, now on average, if he came before the courts.
If it were simply a question of enforcement, the recent Maintenance Enforcement Bill will add to the existing armoury of the courts, although even then further measures could have been introduced to deal with the really recalcitrant non-payer. For example, I should have thought that greater use could have been made of the tax collection system to extract maintenance. If it were simply a question of raising the general quantum of maintenance, it might be possible simply to specify a statutory minimum contribution, perhaps to be uprated with child benefits, although we all know that child benefits are not uprated often enough. It might also be possible to tie child maintenance more closely to another yardstick such as the foster care allowances. Those foster care allowances bring home the true costs of caring for children, and they cater for special cases such as handicapped children.
I see on the cover of the White Paper, to which reference has already been made by several noble Lords, a picture of a handicapped child, but I do not see in the body of the White Paper or in the Bill itself special provision being made for handicapped children. The Bill and the White Paper reflect the reality that the social security system has tended to discourage attempts to claim against fathers unless there is some prospect of success. The mother and the child are usually no better off whether or not the father contributes unless the payments are enough to take the recipients out of the income support bracket and are sufficiently above it to escape the poverty trap. By "the poverty trap" one is referring to the extra benefits which can be lost if one loses income support, such as free school meals and free prescriptions.
Furthermore, the courts have hitherto been discouraged from backdating child maintenance orders to cover periods when the recipients were on state benefits. That would involve the mother having to repay the benefit out of money received, perhaps many months later.
821 I do not regard this Bill as a reflection on the job done hitherto by the courts. Under statutory criteria the courts balance the needs and resources of all concerned with greater flexibility than the Bill would allow the new agency. It is very rare for a father completely to indemnify a mother against all the costs of maintaining the child or children. More often, the court is faced with three potential sources of contribution—the mother, the father and the state—and tries to strike a balance. In particular it has to decide the proper contribution by the mother and the father.
This Bill replaces that flexibility with rigidity, or at least it greatly reduces the flexibility which the courts have had hitherto when looking at and reallocating the family finances as a whole, both as to income and capital. The Bill does so by taking the matter out of the hands of the courts. That is provided for in Clause 7(1), the English of which is ghastly. It does so also with a series of formulae designed to produce an inescapable minimum contribution by a parent to or for his child, as I understand it.
To take up the point made by the noble Lord, Lord Henderson, it seems particularly hard to provide for a system of conciliation when what is being applied is a mechanical formula. The question for this House will be whether the laudable ends of this legislation justify the means. In particular we should ask whether the creation of a new arm or, perhaps more appropriately, a new tentacle of the state, the child support agency—which is not actually given that name by the Bill—is the best way forward.
The financial effects and the cost effectiveness of the Bill strike one as speculative to say the least. The courts service could certainly do with some of the new staff that will be allocated to the new agency to enable the courts to do better the job which they already do well.
The agency will deal with cases in which its services are not really required, either because the means are adequate and the case is not an incomes support kind of case, or because the means are so minimal that there is only one answer. As the primary concern of the Government is to save state benefit, I should have thought that it would be appropriate to confine the new agency, at least in the early stages, to state benefit cases. It could perhaps help in other cases by publishing guidelines which will enable the courts to provide for a greater and more consistent level of maintenance, for example by reference to foster care allowances. I have already referred to those allowances.
Frankly, I doubt whether the agency will have the expertise of the courts, or will ever have the resources to deal effectively with difficult and devious fathers or former husbands. I would mention in particular in this regard the self-employed cash operator with a creative accountant. There will inevitably be duplication of effort where the mother is entitled to go to the court for maintenance for herself. It seems quite absurd that there should be such a duplication of effort, and consequential expense and waste of time.
822 The machinery envisaged by the Bill will undoubtedly be difficult to operate. The formulae strive to meet the argument that they are too rigid in such ways that they seem almost too sophisticated for their own good. In other ways they may not be sophisticated enough. We do not know what the position will be as it is all to be left to regulations that are as yet unseen. As the noble Lord, Lord Mishcon, mentioned most effectively, clean break capital orders or settlements may be made much less easy to achieve in matrimonial disputes. There can, of course, never be a complete clean break when minor children are involved. It is less easy to have a capital clean break as between the adults if it is feared that there will be a continuing liability to maintenance of a substantial nature.
Paragraph 4.12 of the first volume of Children Come First seemed to foreshadow a discounting of maintenance in favour of a father who gives up all his interest in the home. Has this been provided for in the Bill? I believe it may be covered in the regulations which will be made under the terms of paragraph 9 of Schedule 1. However, I should be grateful for confirmation of that.
I accept that this is not an easy matter to deal with. It may be thought that to give the father credit for giving up his interest in the home is being artificially fair. A child costs no less to keep whether the father has given up all ownership of the home or has simply given up occupation and the use of his capital interest in the property for a deferred period which could last a good many years. It is a matter of considerable importance to the practitioners to know how this provision is to operate. We need to know that now because we have to advise people now how the law will work in the future. We need to know whether we can advise people now to agree to forgo their capital interest in their matrimonial home in the expectation that they will have a lesser maintenance obligation, or whether we should say, "No. You will in fact always be liable for possibly quite a significant amount of maintenance. I would not advise you therefore to give up your interest in your home which may be paid to you at some future date".
It is by no means clear to me that a father who agrees to make a capital settlement on a child can now do so confident that there will be no further claims on him. In 1982 the Law Commission recommended a power to allow a once and for all capital settlement on a child—in the context of the Law Commission's report those were children born out of wedlock—in cases where the father wanted no further relationship with that child. That power was given by the Family Law Reform Act 1987. It is useful in certain types of case. Cases are being settled on that basis. But, again, if there is now to be some comeback from the state demanding maintenance which it was thought had been capitalised, it is appropriate that we should know about it.
Will the formula provision be flexible enough to deal with flexible and transitional arrangements which parties make for themselves? I am conscious of the fact that some special cases are provided for in Clause 34, and that it is not meant to be an exhaustive list as 823 I read the provisions of that clause. However, it is also a clause which provides for regulations to be made but does not tell us very much about how its provisions will work in practice. For example, it does not tell us how they will work where the care and expense of the child are shared on an alternating basis, or where there are generous access arrangements, or where a child is at a boarding school for say three-fifths of the year, particularly when that is being paid for or has been paid for in the past out of income or capital, with some sacrifice, when the family were together in happier times.
We must also remember that not all relationships end abruptly or tidily. A father or husband may go away and come back. A mother may go away and come back. There are cases where a husband continues to meet domestic bills months or even years after the separation. Those kind of arrangements must be covered. In other words, before we approve this legislation, we must be confident that the new formulae will cater for the great variety of factual situations which will arise.
The noble Lord, Lord Stoddart of Swindon, referred to access. This is a sensitive subject. In that regard I approve of the approach of the White Paper. The questions of access and of maintenance must in law, and as far as possible in practice, be separated one from the other. For a father to say, "No access, no maintenance" seems to me as unattractive as for a mother to say "No maintenance, no access". Access and maintenance must be separate questions.
There are other matters that we shall have to consider in Committee. There is the matter of stepchildren. I am surprised that stepchildren, who have become a "child of the family" within the sense given by the matrimonial causes legislation, are not covered, and will not be covered, by the Bill, but recourse may be made to the courts, as hitherto.
There are other matters such as the watered down proposals of the White Paper to penalise mothers who fail to co-operate. Those provisions are now to be found in Clause 22. The noble and learned Lord the Lord Chancellor told us there would be a range of exceptions, and that the matter would be dealt with sensitively. Surely this is a matter of such importance that it should be spelt out clearly in the Bill. If there are to be cases where penalties are to be applied—there is no other adequate word to describe the situation—there should be express statutory criteria and express statutory defences so that the circumstances are clearly defined on the face of the Bill. I entirely echo what the right reverend Prelate said about carrots and not sticks. I had already made a note of that before he spoke. It is certainly a question of incentives and not penalties in that particularly sensitive area.
Another sensitive matter is the proposal in the White Paper to deduct 5 per cent. from the income support of fathers who are in receipt of that benefit or other state benefits. The provisions are to be found in Clause 35. They seem to me to be utterly pointless. The courts have always recognised that payers who 824 are on state benefit, or near state benefit level, should not be taken below subsistence level. A deduction of 5 per cent. from state benefits is not just a token deduction; it is a real deduction and it will be hard felt. It will probably also be utterly pointless, particularly if there is to be no corresponding benefit to the child. I do not believe that Clause 35 provides any corresponding benefit to the child.
Finally, in my view we should not approve of the proposal to reduce the parental care element in the maintenance requirement as children grow older. Older children are in no less need of proper care and supervision. They are no less expensive. We all know that they are more expensive. The underlying intention is to encourage mothers to go out to work, but that raises the spectre of latchkey children. The maintenance disregards are to be provided but it is my impression that they are inadequate, the incentives are inadequate and the protection for the children in that area is inadequate. Those are matters that we shall have to look at in Committee.
§ 7 p.m.
§ Lord Prys-Davies
My Lords, this very important Bill has been the subject of a balanced response from your Lordships. On the one hand strong reservations have been expressed about many of its provisions and constructive suggestions have been put forward. We can already see the shape of many of the amendments which will be tabled in Committee. On the other hand most of those who have spoken this evening have warmly welcomed the intention to speed up the procedures for obtaining, collecting and updating child maintenance orders and also to provide for their efficient enforcement. Those features of the Bill, subject only to our reservations about the machinery, represent an enormous improvement on the present situation, which is totally unsatisfactory. We all agree that that reform is long overdue.
I am also left with the firm impression that there is broad support for the principle that maintenance should be calculated by reference to a fair and objective formula. That will tend to make for more consistency throughout the country. It should also ensure that many mothers with a low income will receive higher maintenance awards. Therefore that part of the Bill is also seen by many of us as a step forward.
However, there are concerns about the rigidity of the formula. I have no doubt that in Committee we shall have to set ourselves to open up the maintenance formula in order to clarify or refine—and possibly change—some of its elements. For example, many of the voluntary organisations which have written to us have told us that they fear that the formula as it stands may not provide a fair balance between the interests and the needs of the first and second families and that it may in consequence threaten the stability of the second family, or of both families. If that were to happen what then will have been achieved?
It is not an easy balance to achieve where a father is on low earnings of £150 a week, as many are in my part of the country, and expected to contribute out of 825 that £150 a week towards the maintenance of two families. I was glad that the noble Lord, Lord McGregor, made that point. One cannot extract a quart from a pint pot.
The Bill introduces other profound changes which in turn raise many important issues which are the cause of criticism and concern. We have heard of the 94 sets of regulations which we have not as yet seen. Those regulations may well reveal further grounds for anxiety. As I understand it, we shall be powerless to amend those regulations. In that connection I listened with deep concern to the impressive speeches of my noble friend Lord Mishcon and the noble and learned Lord, Lord Simon of Glaisdale.
Your Lordships are anxious to hear the response of the noble and learned Lord the Lord Chancellor and in the time available I cannot possibly pick up all of the criticisms and suggestions that have been made. I shall therefore focus on three main areas of concern. The first relates to the two critical powers which can be exercised or activated by the child support agency, namely the power to make deductions from income support of the absent father even though he has no assessable income apart from social security benefit and the power to be exercised by the adjudication officer to reduce the income support payable to the mother who feels unable to co-operate with the child support agency.
I was glad to hear the criticism of those powers expressed by the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Henderson. The powers have been variously described as harsh, petty, miserable and appalling. They have provoked widespread criticism and concern from a wide range of voluntary bodies promoting the welfare of children or with experience of working with families with handicapped children, one-parent families in adverse circumstances and families affected by the breakdown of marriage.
I have tried to analyse the briefings that we have received from nine voluntary organisations: the Child Poverty Action Group, the Children's Society, the National Children's Bureau, Church Action on Poverty, the Legal Action Group, the National Council for One Parent Families, MENCAP, the Spastics Society and the Campaign for Work group. Those are responsible organisations which have already earned the applause of your Lordships for their sterling work over the years. We have received the benefit of their opinion; surely it behoves us to listen to their message. I believe that they are saying something very important.
Apart from the National Council for One Parent Families, all of the organisations want those two powers rejected outright. I believe that the National Council for One Parent families would reluctantly go along with those powers subject to certain conditions. Both powers involve important principles on which we cannot afford to be silent in the course of a Second Reading debate.
Why and how can an absent father make a contribution to a child's support if he has no income 826 apart from income support? It is claimed in the White Paper that he should suffer that deduction in order to bring home to him that he can never walk away from his responsibility to his dependent children. In the abstract most of us would agree that that proposition has some attraction. However, in the context of the Bill your Lordships will wish to weigh that proposition against the basic principle that the individual has the right to a basic income which is set at subsistence level and that it is the duty of the state to maintain it.
We are asked to give the agency the power, via the adjudication officer, to penalise the mother who feels unable to co-operate with the agency. As I understand it, that is the combined effect of Clauses 5 and 22. Noble Lords who read the briefing from the Child Poverty Action Group may recall that it found it necessary and right to advise the House that, if that power is granted, it will be the first time in the history of this country that a person will have been coerced into co-operation under the threat of loss of state benefits.
If that advice is sound, it gives us an indication of the significance and gravity of that power.
I should like to quote just two sentences from the briefing that we received from the Spastics Society:The possibility that there should be sanctions to ensure the naming of an absent parent so that maintenance can be collected by the Agency is a cause of grave concern to the Spastics Society. Where a relationship has foundered on the birth of a disabled child, such measures might put unnecessary and regrettable pressure on the caring parent who might prefer to sever connections with as little pain as possible".I suggest that those sensitive words give a glimpse of the pressures and worries that can build up if the child support officer has the power to authorise deductions.
The White Paper suggested that the mother should be exempt from complying with the requirements of Clause 5 in cases of rape and incest. That is not mentioned in the Bill. But, as the quotation from the briefing of the Spastics Society illustrates, there will be many other situations in which that power should not be activated. I hope that the Government can see their way clear to abandoning those two powers. If not, as my noble friend Lord Mishcon and other noble Lords have pointed out, the grounds for the exercise of those powers must be carefully delineated in the body of the Bill.
I now turn to the second main area of concern. The Bill will force all parents who seek an enforceable child support order to use the new child support agency, which will be a semi-independent agency within the Department of Social Security and accountable to the Secretary of State for Social Security. With two minor exceptions, the courts will have no power to make, vary or revoke a child maintenance order.
But is there a need for a separate agency, independent of the courts? Is there a need to spend so much money on assembling and setting up the agency? Is there a need to recruit 2,200 staff, with, it is hoped, the necessary skills to meet the demands of that body? Is that necessary?
827 From the noble Baroness, Lady Faithfull, who has immense experience in this field and possesses a network of contacts, we have heard testimony that the parents do not want such a separate agency, independent of the courts. I quoted the nine voluntary organisations and I must accept that four of them support setting up a single agency, even though it will be independent of the courts. On the other hand, if I understood them correctly the Law Society and the Justices Clerks' Society believe that the establishment of new machinery is unnecessary. For my part I believe that new machinery is necessary but it should be part of a wider strategy than that aimed at reducing public expenditure in this particular area.
Over the years many noble Lords have strongly advocated setting up a family court. But, if that is not acceptable to the Government, we should not move away from the concept of a family court—as we shall do, as we see it, if we set up an independent agency. Would it not have been better at this stage to go for a middle solution, as suggested by the noble Baroness, Lady Faithfull, and the noble and learned Lord, Lord Simon of Glaisdale—a middle solution which would permit the courts to continue to make, vary and revoke child maintenance orders but at the same time would enable the agency to develop as the welfare arm of the court to collect and monitor payments and put in motion the enforcement proceedings. Would it not be better if the agency and the courts were to work in partnership? That would also be a means to advance in the direction of a family court.
We should like to ask the noble and learned Lord whether that opportunity has in fact been lost? If it has been lost, we shall have the two different jurisdictions. Is the noble and learned Lord satisfied that they cannot be in conflict from time to time? I ask the question; I am not sure of the answer. Suppose that the parties are hostile and contest one another's financial statements. What would happen if the agency and the court reach different and inconsistent findings? I am not sure of the implications of such a conflict.
My third concern relates to the damage which the scheme can do to the negotiations leading to a post-divorce property settlement. That worry has been voiced by the Law Society and practitioners. There is very little that I can add to what has been said so forcefully by my noble friend Lord Mishcon. But this aspect of the scheme has also been criticised by Mr. John Eekelaar, a Fellow of Pembroke College, who recently addressed a meeting of the parliamentary group for children which is chaired by the noble Baroness, Lady Faithfull. We found his guidance to be particularly helpful.
It is clear that if the Bill is passed, even where the parties have negotiated the terms of a package settlement, its child support element will not be binding on the agency but must always be assessed separately by the agency in accordance with a maintenance formula. That will bring its perils. It may be said, "Well, if the parties feel that the agency's assessment would be inconsistent with their own 828 wishes, they need not go to the agency, leaving the child support as a voluntary non-enforceable agreement". That has one huge snag. Clause 8 leaves it wide open for either party to go thereafter to the agency and obtain a child support order in terms of a maintenance formula even though the resort to the agency in those circumstances was totally contrary to the agreement arrived at between the parties and was in total breach of a settlement agreement.
We suggest—I believe that Mr. John Eekelaar made this point—that that can do twofold damage to the negotiation process, which every practitioner values. It will hamper the negotiations because it will have restricted their scope. It will also follow that the settlement, although agreed between the parties, will be unstable from day one because at the behest of either party the agency can redefine and re-assess the child support element. To weaken the role of negotiation is contrary to the thrust of recent family law policy which seeks to encourage agreement.
I ask the noble and learned Lord the Lord Chancellor this question. Why not allow the court to continue to have the right to make a binding child support order at least where it forms part of a divorce settlement provided that the court is satisfied that the order is in the best interests of the child and is just in all the circumstances?
Many other issues will need to be explored in Committee upon which we are not clear. We shall wish to seek to extend the scope of Clause 7(6) to include special medical, housing and caring needs for the mentally or physically handicapped child which cannot be met within the formula.
As my noble friend Lord Mishcon indicated, we have anxieties about the powers of the inspectorate. The powers may not be novel but the context in which the powers will be exercised is novel.
I shall not delay the House any longer. In conclusion, I hope that the noble and learned Lord the Lord Chancellor will give the criticisms and suggestions which have emerged from the debate his usual careful consideration between now and Committee stage.
§ 7.22 p.m.
§ The Lord Chancellor
My Lords, I am grateful for the extent to which the principle behind the Bill has been supported by your Lordships. In saying that, I also understand certain anxieties which have been expressed. However, the principal and absolutely vital purpose underlying the Bill is to create a certain and effective method of assessment and collection of child maintenance. I believe strongly that that is very much in the interests of the child and therefore justifies the claim that the principle of the Bill is to put children first.
With his long experience of the inland revenue, the noble Lord, Lord Houghton of Sowerby, was apt to treat the issue as though it were a taxing arrangement. I do not consider a requirement that a father should pay for his child analogous to the arrangement under which the inland revenue obtains money from someone to maintain the organs of the state.
829 The purpose behind the Bill is to create a suitable frame work within which parents will be liable for maintenance for their children and children will be entitled to be maintained at a reasonable level having regard to the circumstances determined in accordance with a formula.
The child support agency involves a commitment of resources which have been described as bureaucratic. I do not know that the body in question would be less bureaucratic if it were part of the court bureaucracy, but it is an agency which will carry out executive tasks. It will ascertain the amount of maintenance in accordance with a formula—an executive task—and seek to enforce it, using if necessary the machinery of the court where enforcement is required.
The agency will have functions of an executive character which have not traditionally been carried out by the court. The court is there to decide questions between parties where there is a dispute which is properly the subject of judicial determination. However, the function of the agency is more of an executive character, resulting in a determination which in the ordinary case will not give rise to dispute.
Where there is a dispute, the proposal is that the dispute should first lead to reconsideration within the agency. I believe that that is an extremely simple way of trying to rectify an error by bringing out any further information that either party may have so that the matter can be reconsidered before embarking on any other form of appeal. Once the agency has reconsidered the matter, the Bill makes provision for appeal to a court or tribunal in accordance with arrangements which we may make. No doubt we shall wish to examine that matter in some detail in Committee.
As I made clear in the debate on the Children Act before the legislation was passed, and in other statements to your Lordships, I am committed to a review of the family justice system which takes account of the substantive law. The agency has a part to play in providing an effective means of collecting maintenance which does not exist in the present system. I have no doubt that noble Lords will have experience of people, notably mothers, who say, "I have an order from the court for maintenance. I cannot find the other party who is supposed to pay. What g pod is this piece of paper to me if I can't get the money?" That is one of the important problems which is addressed by the Bill.
My noble and learned friend Lord Simon of Glaisdale asked whether the agency could be married to a family court in the future. I do not preclude the possibility at some time in the future of wishing to alter the responsibility for the agency. However, for the foreseeable future it seems sensible to use the expertise of the Department of Social Security in such tasks as the agency will undertake and to free the courts in order that they may concentrate on the tasks for which they are particularly fitted and which they undertake.
The noble Lord, Lord Henderson of Brompton, suggested that the Bill should make provision for a conciliation service. Conciliation is certainly under consideration, together with all the matters referred to 830 in the Law Commissioners' report on divorce which was published in November last year and which we debated in your Lordships' House not long ago. Since it is essential that all the recommendations are studied in depth, it would be premature to draw conclusions about the future role, organisation or funding of conciliation and related services until we are clear about what changes, if any, we need to make to divorce law and procedure. However, one of the objectives of the Bill is to create a formula which will determine maintenance and thus avoid the need for dispute. It is therefore not an appropriate place in which to consider setting up arrangements about conciliation.
My noble friend Lady Faithfull, with her superb experience in this area, and the noble Lord, Lord Meston, with his experience of a somewhat different character (I shall not say calibre) drew attention to the rigidity of the formula. In a sense a formula is supposed to tell one the answer when one feeds in the circumstances. One of the reasons for the complexity of the formula is the variety of circumstances with which it tries to deal. We must look at that in detail in Committee. Basically, one can have either a discretionary system which produces inconsistencies when used widely by different courts or agencies, or one can have a system of rules. The Bill attempts to set out a system of rules, which we call a formula, which will apply and give a variety of answers according to the circumstances.
My noble and learned friend Lord Simon asked for an example. One is set out in the White Paper and we have distributed other papers illustrative of the policy which contain other examples. The White Paper gives an example of two children under the age of five living with their mother. Their father lives alone and earns £160 per week; that is less than the average income. He would pay £46 per week in maintenance; that is 29 per cent. of his net income. He would keep £114 per week for himself; that is 71 per cent. of his net income. The survey of how the present system works shows that the average payment is £16 per child. Of course, there is a tremendous variation and the average is not particularly meaningful. The payment of £46 in maintenance, which is still less than 30 per cent. of the father's net income, is therefore to be compared with an average payment of about £32 for two children under the current system.
The noble Lord, Lord Mishcon, and other noble Lords asked about the treatment of the family home. It is an important issue to which we shall no doubt return. It has concerned me during the course of the formulation of these proposals. The issue that one must keep in mind is that, in accordance with the formula, the absent parent will receive his full reasonable housing costs as part of his exempt income, as will the caring parent. If the absent parent transfers his share in the home to the caring parent his housing costs will rise because he must provide a home for himself. Those of the caring parent will often be reduced. The result will be that the absent parent will pay less maintenance. Given that balancing, or trading 831 off, within the operation of the formula, account will be taken of that particular problem in a reasonable way—
§ Lord Mishcon
My Lords, perhaps the noble and learned Lord will not mind giving way in order that the House may be clear about what he is saying. Is the noble and learned Lord saying that, where a parent is absent from the home but retains his interest in the family home, some kind of allowance will be made against him on the basis that he still has an interest in the family home? If that is the case does it not upset the noble and learned Lord's reasoning?
§ The Lord Chancellor
My Lords, I was giving an example of the absent parent parting with his interest in the family home to the caring parent. The result will be that he will have housing costs greater than they would have been if he had kept the family home for himself. The formula will allow him to use those costs by way of deduction against the amount of maintenance that he must pay. In other words, if he incurs extra costs in housing himself as a result of having parted with the home in which he had a share to his ex-wife—that is the typical case—he will be entitled to use his housing costs, which will then be greater, as a deduction in the application of the formula—
§ Lord Mishcon
My Lords, the noble and learned Lord is so kind that I know he will forgive me for rising a second time—there will not be a third. If the absent parent has retained an interest in the family home he will not be occupying that home because we are dealing with parents who live apart. Therefore, he will have an interest in the family home, will not be occupying it and must occupy another home for which he will receive precisely the same allowance as that to which the noble and learned Lord has referred.
§ The Lord Chancellor
My Lords, the noble Lord has sought to apply the example that I have given to a different situation. I am dealing with the situation in which the absent parent has parted with his interest in the family home to his ex-wife in order to provide a home for the children. In that situation the formula will give him the housing costs which he incurs on the basis that he has parted with his former home and must have a new home. The cost of that will be allowed by way of deduction.
That is not the same example as that just put forward by the noble Lord. His example involved the family home being made available to the wife while an interest in it is retained by the absent parent. That is different from the example that I have given. Even if he postpones realising his interest in the home he will still have the benefit of his own housing expenditure. Therefore, the way in which the formula operates will properly take account of that problem.
Various questions were asked about second families, notably by the noble Lord, Lord McGregor. The question also featured in the more root and branch approach of the noble Lord, Lord Houghton. In future an absent parent will know of the extent of his liability to his first family and can be expected to 832 take that into account when deciding whether to go forward into the future with a second family. One of the important aspects of the formula is that people will be able in advance to determine their liabilities with reasonable precision. I regard that as important because at present the matter is entirely discretionary. One may receive good advice from the noble Lord, Lord Meston, and his colleagues about what the award might be but not even they can forecast the court's decision with the kind of precision that a formula confers. One of the important effects of a formula will be to give precision to forecasting. Even if the husband decides to have a second family, or has already acquired one, his exempt income will take account of his liabilities to his own children in a second family. The protected earnings level, which is part of the formula, will ensure that a second family's income does not fall below the income support levels.
The noble Lords, Lord Mishcon and Lord McGregor, asked whether the provisions would undermine the principle of the clean break. The Act which promoted the clean break dealt with the situation in which it is reasonable to expect both parties to become independent of one another. In cases where one party has the care of the children, and is therefore often restricted in the work that he or she can take on, it would not be right to apply that principle. In any event, while one has children who are under age there can be no question of a clean break between the parents and the children. That is the basis of the obligation of maintenance and there can be no clean break in that respect.
Perhaps this is a suitable point at which to deal with an issue raised by the noble Lord, Lord Stoddart of Swindon. He pointed out that fathers have a right to access. Subject to particular circumstances, we might generally agree with that belief. However, I prefer to put the issue on the basis that the child has a right to contact with his father. The child's development depends on contact with the father and that should be encouraged. The sooner we get rid of the idea that because a father pays maintenance he should be entitled to access, even if that is bad for the child, or that if he falls behind with maintenance payments he should be penalised by having access refused, the better for all concerned. I believe that those who have experience of operating within the family jurisdiction know how terribly difficult are disputes where, quite wrongly, there is an attempt to set up a connection between maintenance on the one hand and access on the other. The seven voluntary societies which got together to issue a statement the other day make the point that there should be a careful distinction between maintenance and access. Therefore, in that sense, the point made by the noble Lord, Lord Stoddart, is good. However, the matter is not one which is dealt with in this Bill. Controls already exist in the Children Act in relation to access or, as we prefer to call it, contact. With great respect to the noble Lord, I believe that it would be a mistake to attempt to link those two matters in this Bill.
I believe that I have mentioned many of the basic points raised in connection with the system proposed 833 in the Bill. I turn now to a matter brought up by the noble Lord, Lord Mishcon, the right reverend Prelate the Bishop of Gloucester and other noble Lords. The Bill provides that the Secretary of State shall be able to make regulations allowing a reduction in certain cases where the caring parent refuses to give relevant information to determine maintenance obligations and in particular the name of the father.
Generally speaking, that does not arise. The absent parent will often be known and is named. That must be the proper situation. It must be right that, where the state is making a substantial contribution for children and the father is able to pay, the state should have the necessary power to enforce that obligation and for the woman to give that information.
In the course of my opening remarks I gave examples of some circumstances in which it may not be right to require the caring parent to give such information. I believe that I gave two examples. The Bill accepts the principle that, where it is not right to demand that information from the caring parent, it will not be demanded. There will be no question of penalising a woman who properly refuses to give that information.
The next suggestion is that the precise circumstances for proper refusal should be spelt out in the Bill. That is an extremely difficult task. Your Lordships may wish to embark on that in Committee but unless it is possible to state every circumstance in which a woman may properly refuse to give the information as stated, then in the future a great disservice may be done to a woman who may be in just that circumstance which has been omitted.
§ Lord Simon of Glaisdale
My Lords, perhaps I may ask my noble and learned friend to tell me who decides on the propriety of the refusal.
§ The Lord Chancellor
My Lords, the child support officer will decide in the light of the criteria but the regulations will specify the criteria. At present, we are dealing with the criteria.
§ Lord Mishcon
My Lords, if it is possible to state the criteria in regulations, why cannot the criteria be stated in primary legislation?
§ The Lord Chancellor
My Lords, if a ground is omitted in a regulation, it will be very easy to change that. However, if it is omitted in primary legislation we must wait for the next legislative opportunity, which may cause consequent hardship to the person or persons who find themselves in the circumstances which have been omitted. Personally I should be quite happy to attempt to state the criteria if that could be done. However, so far, I am persuaded that, subject to hearing your Lordships' eloquence in due course, this is a fundamental difficulty and that it would be better to maintain on this matter the sort of flexibility which I have described. Your Lordships will no doubt bear in mind also that the better known the criteria the more one may have to deal with a situation in which people seek to adjust their affairs in order to meet the criteria.
The other matter of principle with which I shall deal briefly is whether there is any carrot which could be 834 produced instead of the stick in relation to this subject. The fact that most people give the necessary information suggests that there is no need for any general additional incentive. The incentive would be very general because in most cases the information is supplied. In the circumstances, I suggest to your Lordships that it is better to deal with the exceptional cases by a special provision of this kind rather than to give a general reward to everyone.
The noble Lord, Lord Henderson of Brompton, has a skill which I do not possess. He says that he is able to read writing in invisible ink upon the pages of this Bill. According to him in that invisible ink is written the word "harassment" or "harasses". I repudiate entirely any suggestion that the authentic copies of the Bill have any such inscriptions on them. However, there must be an effective system. One of your Lordships—and I believe it was the noble Lord, Lord Meston, with his experience of the family jurisdiction—recognised that there may be devious rascals who will try to evade their obligations. That demonstrates to your Lordships that there must be an effective system. If it is effective, then people realise that they cannot evade their obligations by deviousness. Therefore, the system will work. However, if the necessary powers do not exist then people will all too often try to evade their obligations. If the system is not effective then the children will lose out when it is the children whom we intend shall benefit.
The powers of the inspectors are precedented in the social security legislation. For my part I believe that it is just as important and necessary for those powers to be available in the context of maintenance for children as it is in relation to the social security responsibilities of the state. In very restricted circumstances, as an ultimate sanction, prison is the last resort. That carries on the present law as regards obligation to maintain.
I am sure that there are many matters which your Lordships will wish to raise. I hope that I have dealt with the principal questions put to me by your Lordships. Whether or not I have, I have certainly exhausted the time available to me.
Lastly, perhaps I should mention the confidentiality of revenue information. The noble Lord, Lord Houghton of Sowerby, mentioned that. The right which the Secretary of State has to such information under this Bill is very restricted. It is available only in order to trace the address or employer of the person involved.
In my submission to your Lordships, the powers contained in this Bill, which have been described as draconian, are no more than are necessary in order to give the agency an effective method of carrying out the task assigned to it. If we are setting up an agency of this kind, surely we want it to be effective.
On Question, Bill read a second time, and committed to a Committee of the Whole House.