COMMONS AMENDMENT (Hansard, 22 July 1991)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I speak also to Amendment No. 2 which leaves out Clause 2.
Your Lordships will recall that at Third Reading I accepted an amendment moved by the noble Lord, Lord Carter, which placed a duty on the Secretary of State or any of his officers to consider the welfare of the child when exercising any power under this Bill. I made it clear at that time that further consideration of the provision was required and further amendment might be necessary. I had been considering a somewhat similar amendment but it had not been ready.
Your Lordships will recall that as Lord Chancellor I was anxious about how the provision would impact on certain areas of the Bill. In the light of further consideration, the clause has been refined so that it applies only to provisions which require the exercise of discretion. In that way we have been able to leave out part of what had originally been proposed but also to emphasise that it was the welfare of any child that had to be taken into account, not just the particular child who might be the subject of the decision. I beg to move.

§ Lord Mishcon
My Lords, all of us—whether or not we have had time to consider all the amendments—will remember the debate that took place on the 502 request to the Government to introduce a clause to show that the welfare of the child was taken into account in regard to any matter where discretion was required. I am particularly glad—because it may have some relevance to other amendments that we shall discuss—that the noble and learned Lord has emphasised the words "any child". It is not just the child of the parent seeking maintenance but any child involved in the matter, wherever that child may be.

§ Baroness David
My Lords, my name was attached to a similar amendment, although my noble friend Lord Carter moved it. I am very glad that we have some provision in the Bill about the welfare of the child—and towards the beginning of the Bill too.
The noble Lord, Lord Henley, kindly supplied me with the blue document, Notes on Commons Amendments, which states: This duty applies only to the exercise of any discretionary power under the Bill". Can the noble and learned Lord give us a little explanation of that? There has not been time to look into it.

§ Lord Renton
My Lords, both the original Clause 2 and the proposed clause had the advantage of being a statement of principle. I wish that we had more of them. The welfare of the child was to be the principle asserted in the clause as previously drafted and again now. The redrafting has the virtue to which the noble Lord, Lord Mishcon, referred, of being a less qualified expression of the welfare of the child. For that reason we should welcome it.

§ Lord Simon of Glaisdale
My Lords, the amendment seems a definite improvement. One of the worries that has been voiced in the Bill, principally by the noble Lord, Lord Houghton of Sowerby, is that we may be losing sight of the welfare of the child of a subsequent union.
The main purpose of the Bill is to save £400 million of public funds. I am the last to cavil at that. However, not a penny of that £400 million goes to any child, except very indirectly and obliquely, and possibly to any child of a taxpayer who may benefit in some way from the recovery of the £400 million.
It may be that with the harsh, stringent mode of recovery which the Bill allows the Secretary of State and his minions, some sum over and above the £400 million will be available to the benefit of a qualifying child. But it has not been quantified. We have not been told how much that will be. It certainly must be set off against the fact that the absent parent may have formed another union and may have children. These very harsh methods of recovery may inure to the detriment of such a child.
The amendment proposed is an improvement on the previous provision. As the noble Lord, Lord Renton, indicated, such a statement of principle is of value to a court of construction. It is now clear that in any case where the point is raised, it is the benefit of the child of that subsequent union which must also be considered. I am not sure that there will be much scope for that, because the Bill is so harshly oriented in favour of clawing back from the absent parent money which will go primarily to the general 503 taxpayer; but there may be something over and above for the qualifying child. Having said that, there may—one never knows—be a point where the interests of the child of the subsequent union may be in question. Therefore, I join with your Lordships in welcoming the amendment.

§ The Lord Chancellor
My Lords, I should have said earlier that the noble Baroness, Lady David, initiated consideration of this matter. I referred to the noble Lord, Lord Carter, because I believe that he moved the formal amendment which I accepted, subject to revision. We were deprived of the presence of the noble Baroness on that occasion by circumstances beyond her control. I wish to acknowledge that point.
With respect to the question asked by the noble Baroness, this matter arises only where a discretionary power is in question—where something is committed to the discretion of the Secretary of State or a child support officer. In such a case, the welfare of any child likely to be affected has to be taken into account. In the amendment moved by the noble Lord, Lord Carter, the point was dealt with by saying that it was subject to the other provisions of the Bill, or words to that effect. We have tried to isolate the power to which that would be relevant in this way.