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. 19. I should like to speak also to Amendments Nos. 63 to 68 en bloc. These amendments will allow us the alternatives of either continuing to make child maintenance agreements effective through the courts as consent orders or through the new agency's collection and enforcement powers. They will also allow the agency, when resources are available, to collect and enforce any other form of child maintenance or spousal maintenance where the agency is collecting related child maintenance. These amendments fall into two categories. Amendments 65, 66 and 63, 64, 67 and 68 amend Clause 28 to extend the categories of maintenance which the Secretary of State may arrange to collect.
The upshot is to allow him to collect, and where necessary enforce, the payment of two different classes of periodical payment. First, he can arrange to collect any periodical payments which are payable for the benefit of children regardless of whether they arise from court orders or binding agreements. Such orders may have been made because the child fell outside the scope of child support maintenance; for example, because the order was made against his stepfather. Secondly, the Secretary of State can arrange to collect any periodical payments which are payable to or for the benefit of people other than children, but only where he is also arranging the collection of child maintenance. The second class is designed so that maintenance which is linked can be collected together. For example, an absent parent may have to pay maintenance to his former wife in her own right as well as pay child support maintenance to her for the benefit 516 of their children. It is naturally desirable in terms of efficiency and convenience for all concerned, that both be collected under the same arrangements.
I should add that the main task of the agency will be to collect maintenance for children who fall within the child support scheme, and it may not be possible for its services to be extended in this way at the outset. I am sure that my right honourable friend the Secretary of State will make such arrangements when he considers it judicious to do so.

§ Lord Renton
Yes, my Lords, I think I do so agree. I must now confess that I have reached the stage in our proceedings when I am entirely without prior preparation. It may well shorten the proceedings, but it is an unhappy state to be in. Paragraph (a) of the amendment states: a written agreement (whether or not enforceable)". Why are those words in brackets?
It reminds me of an occasion years ago when I was making a forlorn attempt to get an agreement enforced. The learned judge, who was a county court judge, said to me, "Mr. Renton, I think I must put to you the question: when is an agreement not an agreement?" He provided the answer by saying, "When it is not enforceable". There may be a simple answer to this for Scotland. Perhaps my noble and learned friend will say if there is. In England, I do not think the answer is so simple. Of course people purport to make agreements; but if they are not enforceable by law, the courts do not enforce them. In the context of this amendment it would be helpful to know what the real effect in law would be in England and in Scotland of the words "whether or not enforceable".

§ The Lord Chancellor
My Lords, the purpose of this clause is to give the Lord Chancellor, or in relation to Scotland the Lord Advocate, power to, in effect, limit the application of this section. This section generally prevents the court from exercising any power which it has to make a maintenance order in some circumstances. I believe it is right that the power we have to prevent the section from restricting the power of the court should be as wide as is reasonable. Therefore I think it is wise that the courts should have power to make orders, if we decide that that is required, even where the parties have made a written agreement which is not enforceable. In other words, the mere fact that the parties are content with the agreement is all that matters. It does not matter for the purposes of this provision whether the agreement is enforceable in law.