HL Deb 14 March 1991 vol 527 cc295-309

3.35 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee. —(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [the duty to maintain]:

Lord Stoddart of Swindon moved Amendment No. 1:

Page 1, line 7, at end insert:

("( 1 A) For the purposes of this Act, it shall be assumed that a qualifying child normally shares its time with both parents; sometimes equally.").

The noble Lord said: First I should like to say that it is my belief that there is much more to parenting than financial provision. Indeed, there has been too much emphasis on running to ground alleged runaway fathers—not, I note, mothers—for not paying maintenance. Yet often the reason for non-payment of maintenance has to do with the denial by one partner of the marriage to the other of access to and a relationship with the children of that marriage.

I understand that in other countries the law acknowledges the importance of two parents. It tries to ensure that after their parents' separation or divorce children stay in contact with both parents and the wider family and that proper arrangements are worked out for shared parenting. As it stands, Clause 1(1) merely provides that each parent of a qualifying child is responsible for maintaining that child. But that is not enough. In my view a child needs two parents. This Bill should aim to ensure that both parents have the opportunity to nurture the child as well as the responsibility for maintaining the child.

Increasingly, both in the United Kingdom and abroad, it is becoming the case that the correct relationship is a shared caring role. That desirable trend should be encouraged.

I believe that by writing this amendment into the Bill that would be achieved. It is true that Clause 34 recognises in some way that in special cases there can be arrangements for shared parenting, but that clause seems to have been added to the Bill as an afterthought. Shared parenting arrangements are being made both privately and through the courts in increasing numbers. My amendment would make clear that the state wishes to see shared parenting as the norm and not the exception.

We must get rid of the notion that fathers are incidental to the rearing of children. that they are mere cash providers and that their rights in regard to children are inferior. Children need two parents and our law should seek to encourage and promote that happy state.

At Second Reading I suggested that this Bill was not about putting children first but about saving the Exchequer some £400 million a year. Acceptance by the Government of my amendment would certainly go some way toward reassuring people that the Bill is about the welfare of children first and saving money second. I therefore commend the amendment to the Committee and to the noble and learned Lord the Lord Chancellor. I beg to move.

Lord Renton

I am one of those who like purpose clauses, especially when they explain the purpose of the provisions which follow. Although I understand what the noble Lord, Lord Stoddart, is getting at, I have difficulty with the amendment in the word "normally". One must not be too pedantic about this point but I can foresee that in the various circumstances that arise the courts would wonder what Parliament intended by the word "normally".

It may be that in the course of the discussion on this amendment the noble Lord, Lord Stoddart, will elaborate on what he has in mind and perhaps enable us to understand more specifically the intention behind the amendment. But even if he were to do so, that intention would not become part of the law. We need to have it clearly stated in the provisions themselves.

I do not doubt, although I have not so far checked it up, that there may have been occasions in the past in earlier branches of statute law in which the word "normally" was used. However, to use it in these circumstances could give rise, I fear, to quite a lot of argument. Subject to what further comments and explanation the noble Lord may have, I would find difficulty with the amendment.

Baroness Faithfull

I agree with the intention of the noble Lord's amendment. However, like my noble friend Lord Renton, I believe that it is difficult to write that intention in law. It requires good casework practice rather than good casework law to deal with such cases. Every case is different. While one's underlying desire is to have a relationship between the child and both father and mother, there are occasions when that is not practicable, possible or even wise.

Such a principle does not need to be written into the law because it requires good casework practice rather than law.

Baroness Phillips

I support my noble friend on the amendment. One begins to wonder what is normal in our society now that one can decide to have a child without a father. Obviously we no longer know what is normal.

What we do know—I speak as an ex-teacher—is that a broken marriage damages children. Let no one have any doubt about that. It may not be clear at the time. But it is clear that separation does great damage.

We know that the law does not make sense most of the time. We spend our time in this Chamber trying to make it sensible. We have this marvellous word "reasonable". One considers the phrase, "such force as may be reasonable". Who knows how to apply that? I should like to think that "normal" explains the situation that we hope remains: that a child should normally be assumed to see both parents.

I speak as a woman who has always defended the right of the woman. I find that far more women than men now leave the family home. It is sad, but it is happening. It is therefore important to make sure that their rights are covered. If the noble Lords opposite do not like the word "normal" let them suggest another. I am sure that in his reply the noble and learned Lord will explain what is wrong with "normal". Is it wrong now to say that it is normal for people to get married and live together? Do we now apologise for what has been the pattern of life for many years? The word "normally" is simple and explains exactly what we want: for the child to come first in all consideration.

I watch my grandchildren. Their relationship is equally strong with their father and their mother. We must not damage such relationships in any way.

Baroness Elles

I support what my noble friend Lady Faithfull said, although accepting totally what the noble Lord, Lord Stoddart, said: that we all wish parents to maintain and stay with their children. As the noble Baroness, Lady Phillips, said, that is what we used to accept as the normal course of family life.

However, the word in the amendment with which I quarrel is "share". Anyone who has dealings with divorce cases will know that it is simply not possible for both parents to share the time with the child. It is very often extremely bad for a child to have to be removed from its normal home background and to have to spend, say, six months with the other parent, as this amendment suggests. It is simply not feasible, practicable or good for the child. As the noble Baroness, Lady Faithfull, said, every case presents its own problem. The Bill refers mainly, although not entirely, to the father. It is usually the father who leaves the home. It is simply not possible in the vast majority of cases for children to spend half the year with the father who has left the parental home, thus removing the child from its normal secure and confident background. For that specific reason I cannot support the amendment.

>3.45 p.m.

The Lord Chancellor

I am happy to agree with the propositions on which the noble Lord, Lord Stoddart of Swindon, founded his argument. I believe most strongly that there is very much more to parenting than the payment of maintenance. I also believe very strongly that the child needs two parents, and that it is a privilege on the part of both parents to play a part in the nurture of that child. I certainly do not believe that it is right to suggest that fathers are incidental to the rearing of children. I suppose that I have an interest to declare in making that proposition. I am sure that I share that interest with many Members of the Committee. However, I do not entirely agree with the noble Baroness, Lady Phillips, that the law does not make sense most of the time. I have obviously to raise a qualification about that. So far as concerns the underlying views that we express, I believe that there is not much between us.

The Bill concerns maintenance. I accept that there is much more to parenting than the payment of maintenance. It is extremely important in my view —and I suggest this strongly to the Committee—to distinguish between the obligation to pay maintenance to the child and the right of the child to see the parent. There may be situations in which it is thought inappropriate for the child to see, for example, the father. There may be some reason for that in some cases. If so, it is extremely sad, but it does not affect the obligation of the parent to maintain the child. The two are distinct and I believe that they should be addressed distinctly. The Bill is entirely about the obligation of maintenance.

The purpose of the Bill is to deal with maintenance in the situation where one of the parents is absent from the household in which the child is being looked after. If the position were happier and all children were with both parents, the Bill would be unnecessary. Sadly, as all noble Lords know, in only too many cases there is a separation in the family and one of the parents is absent from the child. As the noble Baroness, Lady Phillips, said, that may be the mother or the father. The Bill does not attempt to distinguish between them but puts an obligation on the absent parent to maintain the child.

The difficulty with the amendment is not that it makes any false assumptions about what should happen but that it does not refer to a typical case to which the Bill applies. Putting in an assumption which, sadly, may not be in accordance with the facts will not assist maintenance. While I entirely understand, and indeed strongly support, many of the sentiments that have been expressed by those who have supported the amendment, I have to say that it produces an assumption which is not material to the duty to maintain expressed in the first clause.

If a child receives day-to-day care from both parents Clause 34 provides for regulations to be made about the way in which maintenance should he assessed and apportioned between the parents involved. That would not be the normal case in which the formula would apply. However, if that situation exists a difference must be made in the application of the formula and we have endeavoured to cope with that.

I entirely support the noble Lord's basic views. I have pointed out the restriction of the subject matter of the Bill, and we have taken account of the possibility that he has put forward in the regulation-making power in Clause 34. I hope that in the light of that explanation the noble Lord will feel able to withdraw his amendment. I should be delighted if the normal situation were that a child was in a family with both parents. No obligation to maintain would then arise under the Bill because the ordinary provisions of the household would be shared.

Lord Stoddart of Swindon

This has been a useful short debate. I appreciate the points that have been made by the noble and learned Lord the Lord Chancellor and also by the noble Lord, Lord Renton, and the noble Baroness, Lady Faithfull. They believe that it would be difficult to define what is normal. Of course, that difficulty is at the root of my fears and my thinking about the whole Bill. Although the noble and learned Lord said that the Bill was about maintenance I fear that we are becoming hooked up on maintenance alone. I view my amendment as a means of trying to change people's attitudes towards marriage and the real needs of children. Children are the main problem when a marriage or a relationship breaks up.

As was shown by the noble Baroness, Lady Elles, the idea is held that usually the man breaks up the married relationship. I do not believe that that is true; it is at least six of one and half a dozen of the other—

Baroness Elles

I was not implying who was at fault in the breakdown of the marriage. Regrettably or not, the usual result is that the father leaves the home while the mother is left to care for the children.

Lord Stoddart of Swindon

The probably reason for that situation is that court orders, for example, give the mother custody of the child. Naturally the family home will go to whoever has custody and that is perfectly well understood. I am trying to move towards a situation in which the rights of both parents and the needs of the children are paramount. That is why I tabled the amendment and glad to receive the support of my noble friend Lady Phillips. I always respect her views, which are sensible and down to earth.

Clearly I shall not press the amendment to a Division because the subject must be discussed further in much more detail. Will the noble and learned Lord at least give the matter further thought? Will he accept and realise that there is a great deal of anxiety about the problem of access and of a child having a relationship with both parents? Perhaps if I table a similar amendment on Report we might have another discussion in the light of further thought on both sides.

The Lord Chancellor

I well understand the noble Lord's anxieties. We passed the Children Act first and the subject of maintenance has come second. The Children Act deals with questions of contact, as it was called, and residence, and we hope that it will come into force in October. The Act makes absolutely plain that in questions concerning access, as we now refer to it, the court must first consider the interests of children, which are paramount. We have changed the nomenclature in order to focus on matters to which the noble Lord has referred. We have sought to put that aspect first and it is already on the statute book.

I wish to repeat what I said at the end of the Second Reading debate in reply to comments made by the noble Lord, Lord Stoddart. I believe that the right to contact with the parents is the right of the child. The child's interests require that in the vast majority of cases. That is the philosophy on which the Children Act is based. I hope that we have taken the different aspects in the right order. We are not running off with the issue of maintenance alone; the general structure was put in place in the Children Act and we are now dealing with the special and important aspect of maintenance.

Lord Stoddart of Swindon

I thank the noble and learned Lord. I find his words most encouraging. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stoddart of Swindon moved Amendment No. 2: Page 1, line 8, leave out ("an absent") and insert ("a liable").

The noble Lord said: Running through the Bill is the assumption that there is a caring parent, usually thought of as the mother, and an absent parent, usually thought of as the father. However, as I tried to show when speaking to Amendment No. 1, that is not always the case because often parenting is shared on a reasonable and equitable basis. The word "absent" must be read in that context when considering the ethos in which the Bill is framed.

A quick glance at the newspaper headlines which heralded the White Paper and the Bill show that the word "absent" was used in a pejorative and insulting context. In order to illustrate that point I wish to quote some of the headlines. On 6th February 1990 the Daily Telegraph stated: Absent fathers face greater pressure to pay".

On 26th January 1991 the Independent stated: Absent fathers rule attacked".

On 18th January 1990 the Daily Telegraph stated: Thatcher attacks family deprivation. Fathers to be pursued over maintenance".

The headline did not read "parents" but "fathers". On 18th July 1990 the Independent stated: Thatcher to act over absent fathers".

Again, it did not read "mothers" but "fathers". On 30th October 1990 the Guardian stated: Agency will trace runaway fathers to make them pay".

Finally, on 16th February 1991 the Independent stated: Absent fathers Bill attacked by welfare groups".

Therefore, it is quite clear that the Bill appears to have been conceived in the wrong context, with Mrs. Thatcher portrayed as the avenging angel pursuing errant fathers who do not or cannot pay maintenance as though they were the worst sort of criminals. I do not believe that it is right to criminalise fathers or mothers who do not pay maintenance, because there may be many reasons for that.

We must see parenthood in a quite different light. We cannot go on seeing one parent as the fount of all goodness and the other as the focus of all evil. This amendment attempts to overcome the harshness and "pejorativeness", if that is the right word, of the word "absent", which in many cases is an incorrect and irrelevant description of one parent or another.

I appreciate that it is very difficult to define the parent who is not living most of the time with the child, particularly as regards maintenance. I understand that. The amendment attempts to get over that pejorative and not very nice word "absent" in the context of this Bill and family life. I beg to move.

4 p.m.

Lord Houghton of Sowerby

I wish that we could get rid of the word "absent" altogether. I have received representations from one society which gives a list of the places in which it would like to see the deletion of the word from the Bill. I am not sure which word we should put in its place. However, there is no doubt that the ethos of this Bill in the terms which it uses turns a spouse not living with the other spouse into an absentee, which suggests that he should be at home but is absent. That is the beginning of our indictment of that man.

Secondly, we say to him, "You are absent but you are not going to escape your responsibilities. We are going to make you a debtor and, having made you a debtor, if you do not pay you become a defaulter. If you still do not pay, we shall turn you into a delinquent and punishment may follow". There is no easy ride for the absent spouse because he starts at a disadvantage and can finish in prison.

There are aspects of this Bill which raise questions of prejudice and the word "absent" is one of them. However, I shall say something about the ethos of the Bill at another time. But since we are talking about replacing the word "absent" by "liable", we are beginning our review of the free use of the word "absent" throughout the Bill.

The Lord Chancellor

I too have received communication suggesting that the word "absent" should be changed in the Bill. Having appreciated the reasons behind that suggestion, we tried to find a feasible alternative. However, I regret that so far we have not found one.

The point is that if a parent—father or mother—is living in a family with the child, then the ordinary situation would be that no separate payment of maintenance is required because the child is looked after in the family to which both parents are contributing. In some cases the mother may contribute part of an income earned outside the home or she may do the very important job in the home for which income is not usually directly paid of looking after the children and the father. The father contributes from his earnings if he is in work and earning money. Therefore, a situation which requires this type of application arises only when one parent is absent from the home.

Therefore, the essential idea of absence is quite important because that is the basis on which a person becomes liable. The problem about the noble Lord's amendment is that in a sense it undercuts the principle on which liability under this legislation would arise.

We have been careful to talk about absent parents and I cannot take responsibility for the way in which these matters are headlined. If the full terms of the Bill were used, I suspect that they would not make such good headlines. We are responsible for the draftmanship of the Bill which will become an Act of Parliament. We are not writing headlines for any of the organs of the press to which the noble Lord referred. Therefore, the emphasis which the newspapers put on it is a matter for them.

However, as regards the draftsmanship of the Bill, it is necessary to distinguish between the person who is not contributing by direct effort, as it were, to the maintenance of the child because that person is absent and should pay and the person who has the day-to-day responsibility for looking after the child. We call the latter person the caring parent. The balance of the Bill between father and mother is preserved throughout. The noble Lord will find—and I believe that he probably accepts this—that the Bill makes no such distinction between father and mother as do some of the headlines to which he referred.

This amendment would detract from the intention of the subsection; namely, to explain that an absent parent has met his responsibility to maintain his children when he makes periodical payments of maintenance of an amount and frequency determined by the provisions of the Bill.

If any of your Lordships can find a pair of words which would encapsulate the necessary idea without using the words "absent" or "caring", we shall be happy to consider them. We have already given the matter a good deal of thought without any result. I do not believe that being absent implies a degree of wrong but simply means that for one reason or another one parent is away from the child. It is not intended to have any pejorative effect. Equally, "caring" is not intended to be particularly commendatory, although care is obviously to be commended. However, the idea of the Bill is to distinguish between the two situations in which parents may be placed.

In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment while reserving the possibility that he may come forward with a suitable pair of words in the future.

Baroness Phillips

Before my noble friend decides what to do with the amendment, I notice that the noble and learned Lord criticised my comments that the law does not make sense. As a teacher of English, perhaps I may suggest that the phrase used in introducing the Bill is not particularly good English. It states—and this cannot be contradicted: periodical maintenance payable by certain parents with respect to children of theirs".

That is totally unacceptable to somebody who writes good English. However, I decided long ago that the law does not equate with good English. I believe that we have moved away slightly from Shakespeare and one or two other people.

Surely "liable" is a very clear word, whereas "absent" is not. I had a husband who was in public life and he was almost always absent. I remember on one occasion asking him "Do you want me to take a lover or take up knitting? You are never here". I did not take up either. Instead I took up good works, which has not done me much good. "Absent" is a very strange and unreliable word. To my simple mind "liable" seems to be much more explanatory: one is liable for the maintenance of one's child.

I take the point of my noble friend that we must not get the idea that the father is always wrong. That is very dangerous. I worked in the women's movement for years. We wanted acceptance as equal partners in any situation. We must be careful when wording the Bill because it is to become legislation. "Absent" parent sounds as though the man has gone off. It does not follow that that is so.

I am not a very important person but I believe that "liable" is a more explanatory description. One is liable to pay a debt; that may be man or woman, black or white, old or young. I do not understand why the noble and learned Lord does not agree that "liable" is a clearer and more explanatory word.

Lord Coleraine

I hope that my noble and learned friend will continue to search for another word to replace the word "absent". It may be true that absence makes the heart grow fonder but in the context of the Bill one is looking at the absent and paying parent in contrast to the present and caring parent, to the detriment in semantic terms of the former. Perhaps a mouthful such as "non-custodial parent" would fit the bill.

The Lord Chancellor

That sort of mouthful had occurred to us. On the whole we felt that "absent" was preferable. I suspect that the noble Baroness, with her great experience of teaching English, would prefer the simple word "absent" to "non-custodial". "Absent" describes a state of fact. Liability arises from states of fact. "Liable" does not distinguish the state of fact under which the liability arises. That is the problem.

The noble Baroness spoke of her late distinguished husband being absent. Obviously there is no question of the Bill seeking to place blame on someone for being absent. It places an obligation on the person in respect of that and says that if a person is absent that person may meet the responsibility to maintain the child in the way stated. That is a reasonable use of English and is reasonably plain to ordinary people.

I emphasise that there is no intention of using the word in any pejorative sense or to imply blame. I am sure that the noble Baroness did not consider her late distinguished husband to be blameworthy when he was absent. He was very well engaged.

Baroness Phillips

He was liable.

The Lord Chancellor

I am not sure what he was liable for. It appears he was liable to some strictures from time to time in regard to his activities. At any rate, I am sure that it was amicably resolved in the way the noble Baroness described. For my part I do not treat her as an unimportant person; very much the reverse. I know that she has given herself to most distinguished works. However, the suggestion that "liable" is better than "absent" is not one of the most distinguished.

Lord Mishcon

Perhaps I may make a short contribution to the debate. The problem is not concerned with the wording of the Bill but with the fact that every time one mentions the words "he", "parent" or "liability" one associates them with the father. Only when we are able to make clear that when we refer to a parent we mean either the father or the mother will the headlines cease in the papers mentioned: then there will be a clearer understanding of the Bill and happiness on all sides of the Committee.

4.15 p.m.

Lord Stoddart of Swindon

I am obliged to all who have taken part in the debate. Although it appears to be a small point, clearly it is important. As my noble friend Lord Mishcon pointed out, a difficulty arises if we cannot make clear to all, including the headline writers, that the Bill means a mother or a father having the same kind of responsibility for maintenance of the children. Nevertheless, headline writers have filched part of their headline from the Bill. Therefore, we must be careful about the terms we use.

My noble friend Lord Houghton received from the same source —Families Need Fathers—a whole list of what would be consequential amendments if we passed Amendment No. 2. That merely shows how the word "absent" is reflected throughout the Bill. Perhaps I can put the matter another way. When I was at school if one was ill one was "away" from school; if one was playing truant, one was "absent". It is not simply a matter of semantics; it is a matter of what words mean in general terms to most people.

The husband of my noble friend Lady Phillips—perhaps the greatest General Secretary the Labour Party has ever had—was always liable; he was liable to be fired at by all sorts of people wherever he went in the country. It is an important matter. At the moment we have not found a better term than "liable". Clearly in principle there is a lot of support for finding a different word if we can. Perhaps between now and Report stage noble Lords—including the noble and learned Lord the Lord Chancellor—could consider the matter and find a solution. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 3 Page 1, line 10, leave out ("of maintenance with respect to") and insert ("towards the maintenance of").

The noble Lord said: I hope that we can dispose of Amendment No. 3 fairly quickly. I am advised that there is no such thing as "maintenance". It is not a proper noun. One makes payments for maintenance; one does not pay "of maintenance".

A number of flaws appear in the Bill which we shall pick up as we go along. I believe this is one of them. Amendment No. 4 is also a drafting amendment. A technical point occurs in the definition of "maintenance". It is payment towards or payment for, but not payment of. Maintenance cannot be transferred in the same terms as money. It is purely a drafting point but probably has some technical advantage.

While on my feet perhaps I may speak also to Amendment No. 4. It, too, is a drafting amendment in regard to the clumsiness of line 15 of the Bill. If there is any argument I shall not move it, but I think it may improve the Bill in some small way. I beg to move Amendment No. 3.

The Lord Chancellor

The noble Lord, Lord Houghton of Sowerby, in explaining his amendment has perhaps gone a little deeper than the amendment itself. Amendment No. 3 emphasises that an absent parent is only liable to pay a contribution towards the maintenance of a child, and that may be true, but there may be a contribution from the parent with whom the child is living.

The intention of the clause is to set out the responsibilities of the absent parent. The fact that he is not solely responsible for maintenance is set out in the previous subsection, which states that every parent of a qualifying child is responsible for the maintenance of that child. In the light of that I hope that the noble Lord will feel that his amendment is not necessary.

In regard to the use of the word "maintenance", it is a reasonable use of the word to describe the nature of the payment which is made in satisfaction of the responsibility to maintain. The fact that that is its intention is shown by its proximity to the phrase, "his responsibility to maintain", which we see in line 9 of the clause.

Lord Houghton of Sowerby

I do not press the matter. It is probably a matter of taste. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 4: Page 1, line 15, leave out ("the periodical payments") and insert ("such periodical payments as are").

The noble Lord said: I have spoken to this amendment. I beg to move.

The Lord Chancellor

This amendment is also a question of taste in drafting. We have taken the draft as presented by parliamentary counsel but since the noble Lord has produced this amendment, I am perfectly happy to draw it to the attention of parliamentary counsel as a suggested improvement and take his advice. Perhaps the noble Lord will allow me the opportunity to do that and meanwhile withdraw the amendment. If I can, I shall write to him about it in time for the noble Lord to adjust his position if he needs to before Report stage.

Lord Houghton of Sowerby

Thank you very much. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Meaning of certain terms used in this Act]:

Lord Stoddart of Swindon moved Amendment No. 5: Page 1, line 17, leave out paragraph (a) and insert: ("(a) both his parents are alive and do not live together; or").

The noble Lord said: This is a further amendment to try to remove the word "absent" from the Bill and to replace it with words which provide a much better definition of what is so often the reality of sensible and appropriate arrangements for the care of children. I do not want to pursue the argument further. However, to allow the noble and learned Lord to say something if he so wishes, I move the amendment formally.

The Lord Chancellor

The noble Lord's amendment would restrict the definition of a "qualifying child" to cases where both parents were alive and separated or where the child does not live with either parent. That restriction could well have consequences elsewhere in the Bill. A close and careful examination of those consequences would be required, representing quite a heavy additional task. If the main purpose is to remove the phrase "absent parent", it would be possible, if we manage to hit on a better phrase, to substitute something else. Perhaps we shall not need to do more to the clause than that. As long as we still have "absent parent" in the main part of the Bill, the amendment will not reflect accurately all the circumstances that we need to cover.

Lord Stoddart of Swindon

In the light of those remarks I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.

[Amenclments Nos. 6 to 9 not moved.]

Lord Simon of Glaisdale moved Amendment No. 9A: Page 2, line 4, leave out ("(whether exclusively or in conjunction with any other person)").

The noble and learned Lord said: This is one of a series of amendments I have tabled mainly to probe the necessity for certain words in the statute. The background is the criticism which is prevalent of the prolixity and verbosity of our statute book, remarked upon by the Renton Committee on the preparation of legislation. The committee reported in 1975. At that time the statute book consisted of three annual volumes. Did anyone take any notice of what the Renton Committee said? No. Ten years later, in 1985, the statute book had swollen to five volumes even though it contained fewer Acts of Parliament.

The format was then changed in order to make taller and longer volumes. They no longer fitted the bookcases that had been made for the previous statute books, but little regard was paid to that. The statute book was reduced from five volumes to three. However, two years later the statute book returned to five volumes again, even in the larger format. And so it has remained. I hope that the Committee will not think that it is an idle project to try to question even isolated expressions in a Bill.

I invite the Committee to consider Clause 2(3) which states: A person is a 'person with care', in relation to any child, if he is a person—

(b) who usually provides day to day care for the child".

Then come the words which I question: whether exclusively or in conjunction with any other person".

That phrase, I believe, refers to the person with the care and not to the child.

I imagine that the situation envisaged is where a wife has divorced and remarried. She and her second husband look after the child who is a stepson to the second husband. There can be a great many variants of that. It may be that the wife is living with her sister. It may be argued that in those circumstances the mother of the child does not come within the words: who usually provides day to day care for the child".

It is difficult to say with confidence that any argument is too silly to be put forward to a court of law. I doubt whether any such argument would carry much weight. If the Committee thinks that it is a fanciful argument, should we not, in the interests of verbal economy, admit that these words in practice and good sense are unnecessary? I beg to move.

The Lord Chancellor

It is certainly a worthy objective to try to be as succinct as possible in legislation. But experience has shown that one also has to cope with the possibility of ambiguity. If there is some doubt about the meaning of a phrase, then, if it is possible to make clear what the scope of the phrase is, that should be done. As my noble and learned friend Lord Simon of Glaisdale has pointed out, the phrase, who usually provides day to day care for the child

might or might not apply to a circumstance such as he has mentioned. It is really to remove the doubt that might exist but for the phrase that we have put in the portion in brackets, (whether exclusively or in conjunction with any other person)

to show that a person with the care can have a claim and is a person who has a part of that day to day care provision as well as a person who gives all of it. It is a question of judgment whether a particular doubt of that kind should be resolved. We have thought it right to resolve it in this case in that particular way. I hope that the noble and learned Lord will feel that this is appropriate in the circumstances.

4.30 p.m.

Lord Simon of Glaisdale

I put down the amendment very late and I apologise to the Committee for doing so. In view of that I venture to ask my noble and learned friend whether he will have another look at this point. I cannot myself conceive that there would be any doubt as to the construction without these words. But my noble and learned friend takes the other view at the moment. He thinks there might be some doubt. I merely ask him whether he would be kind enough to look at the point again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 10: Page 2, line 6, at end insert: ("(3A) For the purposes of this Act a "child support officer" means a person exercising functions specified in sections (powers of the court with respect to maintenance) and 11 below.").

The noble Lord said: It is nice to know that the noble and learned Lord the Lord Chancellor is not ready. I am in exactly the same position but I shall try to remedy that situation in moving Amendment No. 10. This is an extremely important amendment, with which, with the leave of the Committee, I shall also take Amendments Nos. 55, 57, 89 and 90.

I am intentionally speaking slowly in case it would be more convenient to the Committee if the Statement were taken, which I anticipate. Therefore if my words are slow and there are gaps in between them the Committee will not think that something has happened to me of a dire physical nature.

At Second Reading very considerable doubt was expressed as to the wisdom of setting up this agency under the jurisdiction of the Department of Social Security. It would be a useless expenditure of time for an amendment to be put down at this Committee stage to abolish the idea of the agency. It would be deemed to be a wrecking amendment. I believe that its success would scarcely be achieved and it would be a waste of the Committee's time. However, what emerged from the debate at Second Reading, and emerged very clearly, was a distinct opposition to doing away with the court's powers in regard to the matters of maintenance in the way that this Bill does. We had very grave doubts indeed, which I hope Members of the Committee will share by expressing their opinion on these amendments this afternoon. I hope that the Government will concede these amendments.

The use of compulsory powers upon one section of our society to have to use the agency and to be debarred from coming to the courts was looked upon at Second Reading by many noble Lords as being a matter of grave concern. We obviously ought to look at this at subsequent stages of the Bill.

Perhaps I may start with this premise. If we wish to have a classless society—the noble and learned Lord will understand why I am using this phrase—it is necessary to treat all our citizens in precisely the same way unless there is very good reason to the contrary —and the reason should be for the benefit of that section of our community with whom we deal in a different way. The fact of the matter is that only those who are to be in receipt of income support, or who are likely to be, are to be barred from the jurisdiction of the court. They are to go to the Department of Social Security to recover their child maintenance payments.

I remember so well the words of the noble Baroness, Lady Faithful—I am sure she will be making her usual effective speech this afternoon—in saying that many people still regard the DSS as being a place which has an office that is very cold, which is very bureaucratic and where it is felt, however wrongly, that they have come for some benefit almost as if it is charity. That is not the way to deal with the maintenance of children. We should not say to any section of our community, "That is where you must apply. You do not have the right to go to a court". There is an even more fundamental objection to this compulsion and to there not being the alternative of court jurisdiction when we think in terms of the family court, the dream of this Chamber and of many who deal with the affairs of the family and are experienced in that field.

The noble and learned Lord was very eloquent and very sincere when, in dealing with the provisions of the Children Act to which he has already made reference, he said how necessary it was that there should be one court which dealt with family affairs and which would consider all aspects of maintenance, residence, custody of children and so on. What this Bill does is to split the jurisdiction. It is not even a sensible split, because quite obviously questions of maintenance have associated with them questions of residence, of housing benefit and so on. In those circumstances, if we pass these measures we shall make the idea of the family court—the one court idea—very much more distant.

I believe that my slow speech has had some effect. If it has not convinced the Committee so far of the effectiveness and the rightness of the amendments, it certainly has enabled an intervention to be made which I think will add to your Lordships' pleasure this afternoon.

The Lord Chancellor

The noble Lord has been gracious enough, aware of the convenience of others, to allow his speech on this very important amendment to be interrupted. He will then complete his speech on the amendment in due course. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.