Child Support Bill [H.L.]

HL Deb 14 March 1991 vol 527 cc359-86

House again in Committee on Clause 5.

Lord Henley moved Amendment No. 20:

Page 3, line 33, after ("is") insert ("claimed by or in respect of, or").

The noble Lord said: I shall speak also to Amendment No. 45. Amendment No. 20 makes the provisions of Clause 5 applicable in cases where the caring parent has claimed benefit but benefit is not yet in payment. It is a small but important change. It is important that the absent parent is contacted and arrangements for the payments of maintenance made as quickly as possible. The amendment also makes the Bill consistent with current social security legislation which enables the DSS to seek maintenance immediately a claim for income support is made. Amendment No. 45 is consequential to Amendment No. 20. I beg to move.

On Question, amendment agreed to.

Lord Henley moved Amendment No. 21:

Page 3, line 33 after ("a") insert ("qualifying").

The noble Lord said: I shall speak also the Amendment No. 22. As the clause is currently drafted there is no specific requirement for there to be an absent parent. That was not our intention and Amendment No. 21 rectifies the matter. I thank the noble Lord, Lord Carter, and my noble kinsman Lord Russell for drawing it to our attention. I hope that they will consider that Amendment No. 21 achieves the same end as their amendment and that they will therefore withdraw it. I beg to move.

Earl Russell

I warmly thank my noble kinsman for those remarks. This is an important moment for me because it is the first time that I have had an amendment accepted. I am delighted.

Lord Henley

Perhaps I should correct my noble kinsman. I was not accepting his amendment but putting forward a government amendment which we consider slightly better. I hope that it goes some way towards meeting my noble kinsman's point.

Earl Russell

It accepts the spirit of my amendment.

Lord Carter

As the government amendment inserts only one word instead of the seven that we proposed I believe that it is an excellent amendment.

On Question, amendment agreed to.

[Amendment No. 22 not moved.]

Lord Houghton of Sowerby moved Amendment No. 23:

Page 3, line 33, after ("she") insert ("(or he)").

The noble Lord said: My amendment deals with the "hes" and the "shes". They appear on about four occasions. I had assumed that where the Bill read "she" it could also mean "he". However, I understand that under the Interpretation Act of the last century while "he" embraces "she", "she" does not embrace "he". Therefore the feminine does not include the masculine. If we are having equality of the spouses, man and woman, pa and ma, where children are concerned we must raise "he or she". I beg to move.

Lord Simon of Glaisdale

The amendment is unnecessary because the Interpretation Act 1978 deals with the issue. Section 6 states: In any Act, unless the contrary intention appears"—

and no contrary intention appears here— (a) words importing a masculine gender include the feminine; (h) words importing the feminine gender include the masculine".

I know that I am anticipating what the Minister may say. I rise only because I wish to retell the way in which Lord Kilmuir always put the rule. It was, "Young man embraces young woman."

Lord Renton

The noble and learned Lord, Lord Simon, is technically right. However, we should try to make our legislation as user friendly as possible. It may be that when the husband or the wife, the mother or the father, sees the word "she" the position cannot be understood without access to the Interpretation Act. I know that the noble and learned Lord, Lord Simon, will not welcome my suggestion but I believe that a way around the problem would be to insert the words "such a parent" or "such a person" in place of the word "she".

I am reluctant to make that suggestion because the phrase is longer than the simple word "she". However, I do not agree with Sir William Blackstone who in the late 18th century said that husband and wife are one in law and that one is the husband. We have moved a long way from that position. However, on seeing the word "she" the lay person could be puzzled but would be less puzzled by the word "he" and still less puzzled by the expression "such a parent" or "such a person".

Lord Stoddart of Swindon

I support my noble friend Lord Houghton of Sowerby. I hope that he has forgiven me for jumping the gun before the dinner break. As the noble Lord, Lord Renton, said, this is an emotive subject. Earlier today I read a number of newspaper headlines. It is clear that as regards the press the gender involved in the Bill, and the gender which will be pursued, is the masculine gender. That has caused a great deal of offence. Therefore it should be made clear throughout the Bill that its provisions apply equally to men and women.

In his earlier remarks the noble and learned Lord the Lord Chancellor emphasised that that was so, that he meant it to be so and that it would be so. Therefore, I believe that it should be placed beyond any doubt that this Bill applies equally to men and women, to husband and wife, and that my noble friend's amendment should be accepted. If it is not accepted at this stage, the Government should come forward with something better; though at present I cannot think of anything better than what my noble friend has proposed.

8.30 p.m.

Lord Simon of Glaisdale

There is no question here of gender dominance or sex rivalry. The whole purpose of the Interpretation Act is to enable us to legislate by using a kind of shorthand. It enables us to leave out unnecessary words. The unnecessary words here are "or he" because they are supplied by the Interpretation Act. Our legislation becomes more and more long winded and it will be still worse if we disregard the shorthand of the Interpretation Act. I hope that the noble Lord will be firm on this matter.

Lord Stoddart of Swindon

With respect to the noble and learned Lord, Lord Simon of Glaisdale, the pursued parent will not read the Interpretation Act and neither will many others concerned with this Bill and the implementation of it. I believe that it is necessary to ensure, as the noble and learned Lord the Lord Chancellor said earlier, that it is made quite clear in this Bill that there is equality between the sexes. Inserting the words "or he", will help to clarify the position. We are not all lawyers and most of the people involved in this Bill will not be lawyers. It is important that they should understand and be satisfied.

Lord Mishcon

Perhaps I may make an observation to my noble friend. There is great merit in what he said and in what my noble friend Lord Houghton said.However, we are not thinking only of this legislation. I do not believe that in drafting our legislation we want to tell parliamentary draftsmen always to use the phrase "he or she" or, as suggested by the noble Lord, Lord Renton, "such person" in order to keep away from gender. However, it will be found—and I know the noble Lord, Lord Renton, will agree—that it is not always possible to interpolate the words "such person" because there must be some preliminary words to attach to those words. If the Interpretation Act which lays down that "he" incorporates "she", or vice versa, is not used then on each and every occasion one will have to say "he or she". I do not believe that that is desirable. In those circumstances I hope that the noble Lord will realise that what he suggests, which is otherwise very sensible, applies to other legislation where I do not believe he would think it sensible.

Lord Stoddart of Swindon

With the utmost respect to my noble friend, this is a "he and she" Bill.

Lord Henley

I thought that this was to be a short amendment. I express my thanks to the noble and learned Lord, Lord Simon, and to the noble Lord, Lord Mishcon, for making the points which I wished to make. It is important to look at Section 6 of the Interpretation Act 1978. The noble Lord, Lord Houghton, referred to an Act in the last century. Although the noble Lord is a veritable Nestor, I believe that that Act has been overtaken by the 1978 Act. Even the noble Lord, Lord Houghton, was not a Member of this Chamber at the time of the previous Act ill the last century.

We have chosen to cast the caring parent as the female and the absent parent as the male throughout the Bill purely for convenience and because that is the reality in the vast majority of cases. I stress that it is in the vast majority of cases. I notice that the noble Lord, Lord Stoddart, shakes his head. Obviously there will be alternatives but the Interpretation Act solves that problem.

The noble Lord, Lord Stoddart, and my noble friend Lord Renton made the point that people reading the Bill may become confused. In all deference to the lawyers who surround me, I point out that in the main one does not expect people other than lawyers to read Acts of Parliament. It is the job of the noble Lord, Lord Mishcon, to read Acts of Parliament but the man in the street generally does not do that. Guidance will be issued by my department and the agency which will make matters clear. It is important to ensure that the Act is sound as regards the Interpretation Act and that it can be interpreted by lawyers and the courts. I do not believe that it is vitally important that the man in the street should be able to read the Act because that is not the way in which Acts of Parliament are drafted. I believe that the noble Lord, Lord Mishcon, wishes to intervene.

Lord Mishcon

I only do that by uttering a sentence. The noble Lord does not need a great deal of courage to make that remark in this Chamber, but had he made it in another place I am afraid that he would have been ridiculed.

Lord Henley

I am not sure that I agree with the noble Lord. He knows perfectly well that people do not sit down and read Acts of Parliament before going to bed at night, though they may read the very well drafted documents issued by my department which, as I have boasted before in this Chamber, have often received awards from the Plain English Society. Acts of Parliament need not be so clear that the non-lawyer can interpret them. However, I hope that what I have said about Section 6 of the Interpretation Act 1978 will satisfy the noble Lord, Lord Houghton, and that he will withdraw the amendment.

Lord Houghton of Sowerby

I am sorry I spoke! Our time is too precious to continue the discussion on this matter. It all goes to show that no matter what issue you raise, other Members of the Committee know more about it than you do.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Lord Mishcon moved Amendment No. 26: Page 3, line 35, leave out from ("child") to end of line 36.

The noble Lord said: This amendment, linked with Amendment No. 24, is so important that it is rather disturbing to find a Chamber with such a sad paucity of numbers in spite of its distinctiveness in quality. It is wrong for us to debate such important matters in this way. It is only because of that that I do not proceed with the amendment. I believe that the noble Earl, Lord Russell, did not move Amendment No. 24 for the same reason. In those circumstances, having moved the amendment, I ask leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 27: Page 3, line 35, after ("child") insert: ("(aa) that benefit is payable to her in respect of the child;").

The noble Lord said: In moving this amendment I speak also to Amendment No. 32. These are probing amendments. At present we do not feel that the Bill makes clear the circumstances in which Clause 5 is intended to operate where the benefit is not payable for a child; for example, where the child has capital of over £ 3,000 or perhaps where the child is temporarily not living with the caring parent—and I was careful not to say the mother. These are probing amendments and perhaps the Minister will deal with that point.

Lord Stoddart of Swindon

Perhaps I could raise one matter in regard to Amendment No. 27. In the case of a virgin birth where the enforcement officer is asked to recover from the absent parent, how is the absent parent to be traced and how will the money be obtained from him?

Earl Russell

I apologise to the noble Lord, Lord Carter. There was a small muddle between us. I, too, support Amendment No. 27. The point of the amendment is to confine the mandatory effects of Clause 5 to those who are in receipt of benefit. We hope that that is in line with the Government's intention and we would be relieved to be told so.

The reasoning behind the Bill is in terms of the taxpayer's interest because of the necessary saving in benefit paid to people who, it is argued, should be receiving it from the absent parent. I do not understand why this complex mandatory apparatus should be brought into play in the case of people not in receipt of benefit. I do not see what the Government's locus standi would be for setting up a potentially intrusive and cumbersome apparatus where, as far as I can see, the Government would have no direct interest.

That ties up with the words of Amendment No. 32. That amendment deletes the words which state that the provision applies, regardless of whether any of the benefits mentioned there is payable with respect to any qualifying child".

I do not understand why those words are there. The Bill would be more logical if they were omitted.

Lord Houghton of Sowerby

I find this kind of thing extremely distasteful. Last night there was a programme on Channel Four and lying around the studio, with a number of women who were critical of the Bill, was a poster which said, "Marxist Bill".

Whether it is Marxist, Nazi or just plain mean, it arouses people's resentment. It is an indication that it is not the children that are being helped in some of these subsections; it is the recovery from one parent of benefits that have already been received by the other parent.

Is that what the Bill is about? Do the Government want to save a lot of money on social security expenditure? If so, it will be an extremely irksome regime. I wonder whether we understand what will happen when some of these applications are issued and attempts made to enforce them. It will arouse a good deal of resentment. Incidentally, some of those women were afraid of violence from their husbands if they found out where they were. The incidence of violence is not something to be brushed aside, as I know from the experience of a person involved.

These are human problems. The men and women concerned are probably experiencing some of the unhappiest periods of their lives. They harbour resentments; feel affronted and humiliated; feel hard done by and that that is not what life should be about. They see romantic love withering on the bough and all the rest of it. It is not a happy area of human life, existence and relationships.

The drive to make the husband or the man pay is so uppermost in the ethos of the Bill that every item must be attended to. Why cannot the Bill take a more humane and conciliatory line? There is no opportunity here for a conciliatory line; it is all rule of thumb. There are no rules for the child support officer. He will walk about with a pretentious title to which he is not suited—"child support officer". These days everybody is an officer. That is bureaucracy. There must be officers, chief officers, superior chief officers, directors and controllers. We shall see; they will all appear in due course. Do I not know my staff associations? It will be a remarkable instance of the growth of bureaucracy from scratch. It will be an unpleasant sight. I am not sure that it adds to the happiness of the people.

The incidence of the breakdown of marriage and relationships will lead to an expansion of the problem, and it must be included in the national insurance scheme as one of the hazards of life. After all, one may find oneself with a broken marriage much sooner than one finds oneself as a widow. We are sorry for widows but we are not sorry for divorced and separated women. That is all part of the ethos of the scheme.

I find it distasteful that in searching for a remedy for an obvious problem we must go into the realm of pretentious bureaucracy, which will have little or no discretion or room for manoeuvre. It will cost millions in terms of car allowances to track down the culprits. It will be an awful spectacle of our society in the year 2000. The way things progress it will not be in full operation until then.

I register my distaste and shall continue to do so. I believe that there was a different way to approach the matter but it started from the wrong quarter. It is still on the wrong lines. There was an alternative method. Even through this method there was a more sympathetic and humane approach which would have generated co-operation from people rather than arousing their venom and bitterness.

I repeat what I said at Second Reading. The new scheme will create more tears, more bitterness and resentment in the condition of life than if people were left to fend for themselves; to obtain what they could from social security; to get a job, keep their dignity intact and feel that at least they are their own person. That would give them a lot in life. This scheme creeps around them. The support officer goes on his annual rounds of checking up to see that the determination is kept up to date. They will never be free of attention. I deplore it greatly.

Lord McGregor of Durris

The noble Lord, Lord Houghton of Sowerby, very interestingly resurrected a proposal first made by Beveridge in his famous report of 1943. It was found difficult if not impossible to enact at that time. Perhaps the Minister would reconsider that proposal in the Beveridge Report and report on its present practicability.

Lord Henley

It is important to return to the amendments on the Marshalled List. Perhaps I could touch briefly on the intervention of the noble Lord, Lord Stoddart, who raised the rather topical question of virgin births—though perhaps it has been topical for 2,000 years. I am not sure how it bears on the amendment. I shall consider the matter and write to the noble Lord.

Turning to the amendments themselves, these seek to remove the requirement for the caring parent to claim maintenance where there is no benefit in payment in respect of the qualifying child. In the large majority of cases in which a caring parent makes a claim for benefit for herself and her children, the calculation of her benefit will include amounts in respect of the children. However, there are rare cases— I stress that they are rare—where, for instance, a child may have capital over £3,000 or income equal to or greater than the child's personal allowance or child credit. In these cases the caring parent's benefit calculation will not include a child allowance or child credit for that child.

The Government are firmly of the belief that both parents have a duty to ensure that maintenance is paid for their children where it can be afforded. The fact that there is not a child allowance or child credit in the caring parent's benefit calculation does not alter that belief. It should also be remembered that the need to look after the child is one of the reasons that benefit is in payment to the caring parent. Indeed, the income support calculation will include the family premium even when the only child is one for whom there is no personal allowance; in other words, when the child has earnings over the appropriate amount or capital over £3,000.

We would therefore still expect the caring parent to co-operate with the child support agency to obtain maintenance from the absent parent. I hope the noble Lord will withdraw the amendment.

Earl Russell

That advances us a little. I understand the point that my noble kinsman is making about savings. Will be consider redrafting the Bill before we return at Report stage to make it clear that that is the limit within which he intends to use the mandatory apparatus to Clause 5 for mothers who are not actually in receipt of benefit? I appreciate that there is a case for having the child support agency and its services available to all parents should they wish to use them. I cannot understand the case for applying compulsion where the state has no direct interest. Can my noble kinsman undertake either to amend the Bill to make it clear that that is not their intention or to explain alternatively why it is their intention?

Lord Henley

My noble kinsman has misunderstood me. The state does still have an interest. Even though the individual child may have large earnings or a large amount of capital, as it were in the Shirley Temple case of a number of years ago, the family premiums will still be paid to the single parent if she were still entitled to income support. Therefore, the state still has an interest through the benefit system. The Bill does not need amending in that respect.

Earl Russell

We can still ask for the Bill to be clarified to make it clear that it says no more than my noble kinsman intends. At present the provision appears to apply to every single parent regardless of whether any benefit is involved and that I deplore.

Lord Henley

I am not sure that my noble kinsman is right. I shall look at the point he has made without giving any guarantees. The Bill is all right as it is, but I shall look at the matter again before the next stage. If necessary, we shall return to this problem later.

Lord Carter

I am grateful to the Minister for his reply. I took the point that he was making. It may be necessary to spell it out in the Bill. I shall read what he has said and perhaps come back to the matter at a later stage or we may have a discussion outside the Chamber. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 28:

Page 3. line 38, at end insert: (1 A) Where the person who is under a duty imposed by subsection (1) has accepted an arrangement which includes a property transfer as outlined in section 7(6A), any assessment of maintenance will take account of the value of the property transfer.").

The noble Lord said: The sensible thing for me to do at this hour is briefly to put the purpose of the amendment and to move it formally in order that the Government may give an indication of their reaction to the spirit of it. Then one can judge whether it is necessary to trouble the Committee with an amendment at a later stage. That would be the normal course if the Government did not accept the principle. In this short analysis of the amendments, I am speaking also to Amendments Nos. 54 and 58.

What is behind this amendment was referred to in the speech that I made at Second Reading. I can remember how well the point was put by the noble Lord, Lord Meston, in the same debate. We both spoke about the clean break which was the aim for many cases in our very recent divorce legislation. The merit of the clean break was that Parliament appreciated that there was a need in many cases to allow the spouses who had found marriage unacceptable for one reason or another to have another chapter in their lives which might prove a little more successful.

On the basis of the clean-break provision without the maintenance order being made year after year and the parties being brought into possibly quarrelsome contact because of it, the idea was that there should be one provision by way of a capital payment. Usually in the lower and middle income groups the main or only asset was the matrimonial home. That was a way of dealing not only with the clean break but also in providing that the children of the marriage had the security of the family home. There were variations on that by way of the Mesher and the Martin orders and so forth. I do not need to trouble the Committee with those variations. They all conclude with the sale of the house at some time or other and a division of the proceeds. That was deemed to be a not very satisfactory proposal when it came to the security of the family.

One of our objections to this formula so fixed and lacking in discretion, was that this broke the spirit of the settlement the clean break. Therefore, in our amendments we are trying to secure the position in the best way we can. I shall put the matter to the Committee in very short sentences. Amendment No. 28 allows for the substitution of property for cash maintenance. Amendment No. 54 allows the court to set a lower cash maintenance assessment where there is a property transfer. Amendment No. 58 is more limited and allows property substitution only after the basic element of cash maintenance has been met.

I have put the case very briefly. In other circumstances, I would have elaborated on it and sought to have some conclusion concerning the matter. I think it is useful that I outline the purposes of the amendments. I ask the noble and learned Lord to indicate the Government's reaction. I beg to move.

Lord Meston

In view of the way in which the noble Lord, Lord Mishcon, has moved the amendment, I shall try to speak as briefly as I can in support of it. He has put the matter so well. As he said, the principle is important. In the usual matrimonial break-up there is, as he said, one main asset which is the house. That is generally hard-earned and still needed by the family. There may be one or two incomes. During the 1970s the Mesher order, named after the case of Mesher v. Mesher (or variations of that case) became popular. The departing husband gave up occupation of the home, but he did not give up his capital interest in the property. It was ordered that if the wife remarried or when the children reached the age of 17 or thereabouts, the house should be sold and each spouse received his and her share.

In the 1980s it was recognised that such orders could be quite hard on the former wife. They stored up uncertainties and problems for her and the children. The wife would be forced to sell up when she was in her 'forties or 'fifties. She would have to try to re-house herself using only a proportion of the proceeds of sale at a time when she might have a limited earning capacity, a limited borrowing ability and probably with no remaining widow's pension rights. Moreover, the family would not have entirely departed, and the sale would be forced while the children might well still need a home base.

These shortcomings came to be recognised and since then there has also been the encouragement, both statutory and judicial, of the clean break. When there are dependent children there can never be a complete clean break, but there can be such a resolution as between the adults who reasonably want finality and certainty so that they can rebuild their lives. Thus nowadays it can be agreed—or, if it cannot be agreed, the court can order—that the departing father transfers his entire interest in the home to the wife who has the care of the children. He may also transfer the contents, the car and everything else that there is to be left behind. That is all done in the context of a jurisdiction which gives first consideration to the interests of the minor children.

When that is the solution, the father may be making a considerable sacrifice. A transfer of property for the permanent benefit of the family can be just as valuable a form of child support as weekly or monthly maintenance payments. I suggest that in those circumstances the father is entitled to expect, in all fairness, that such a transfer of property will be reflected in the amount of maintenance that he is to pay. It is not possible to reflect it pound for pound; but account should be taken of it—to use the wording of the first of the amendments.

When this was discussed at Second Reading the noble and learned Lord the Lord Chancellor, when pressed on the point by the noble Lord, Lord Mishcon, said that the absent father would have the benefit of an allowance for his extra housing costs. That is perfectly true so far as it goes but it fails to make any qualitative or quantitative distinction between the father who, on the one hand, has just given up occupation of the home for a defined period and given up the use of his capital for a limited period, and, on the other hand, the father who has given up everything and transferred his capital interest altogether. As I understand it, both will have the same allowance for the extra housing costs involved in rehousing themselves elsewhere but the father who has given up all his capital should be distinguished from the father who expects to get his capital in a few years' time. These amendments do not go far enough because they refer just to property transfer. Where there are unmarried couples there may well be a capital settlement which ought to be taken into account.

I referred at Second Reading to the Law Commission Report of 1982 on illegitimacy which was the precursor of the Family Law Reform Act 1987. That foreshadowed the giving of powers to the court to make once and for all capital settlements. I shall quote what the Law Commission said: It could be particularly desirable to give the court power to make what would often he intended to be a once-and-for-all settlement in those cases where the father intends to have no further relationship with the child".

When that is done it would be unfair for the agency to come back against the father to say, "I know you have paid a substantial capital sum over, or you have transferred the house to the child's mother. Nevertheless, we are coming after you for some more".

I ask the noble and learned Lord the Lord Chancellor to indicate how genuine attempts to capitalise maintenance will be covered in this legislation. Unless proper allowance is made for transfers of property and other forms of capitalisation, we shall have a return to measure and all the unsatisfactory consequences; settlement out of court will be more difficult and conciliation will be more difficult because it will take one element out of the package which is at present available to the conciliators in trying to reach a well structured solution. Above all, there may well be a genuine injustice to people who are prepared to give up their capital interests in property. It may well have the result of doing more harm than good.

It is important—and I speak now as a member of the legal profession—that we know now how it will be approached, because it is now that we have to advise people for the future because, as I understand it, this legislation will have retroactive effects.

Lord Simon of Glaisdale

Perhaps I may take advantage of the very clear exposition of the law and practice by the noble Lords, Lord Mishcon and Lord Meston, to draw attention to a curious and gross anomaly of our law on matrimonial property. As the noble Lords have explained, on the break-up of a marriage on divorce, very often— £in the majority of cases now—the divorced wife will be given an interest in the matrimonial home and, as the noble Lord, Lord Meston, added, often in its.contents as well. But if the wife stands by her marriage and the house is in her husband's name, as generally it still is, she has no interest at all. That is an incentive to rush into a divorce as the easiest way out of matrimonial difficulties. Even without that it is grossly unfair to treat a woman who stands by her marriage worse than one who is divorced.

The Law Commission dealt with that situation some time ago in a report called Matrimonial Property —A New Approach. It proposed three Bills. One gave the wife of an existing marriage rights in occupation of the matrimonial home. That Bill was passed by your Lordships. But it proposed two other Bills. The second one gave the wife co-ownership of the matrimonial home and the third gave the wife co-ownership of the chattels in the matrimonial home. There were plenty of precedents for the success of such Bills in statute, mainly in Australia and New Zealand.

Those two Bills were beyond the capacity of a private Member and the Government have never taken them up. However, they remain there as a startling finger of injustice pointing at our law of matrimonial property. I am conscious of having made that point hanging on to the coat tails of noble Lords who have already spoken. Nevertheless, it is an issue that we should not lose sight of while we are discussing family law and family relations.

The Lord Chancellor

I am grateful to my noble and learned friend Lord Simon of Glaisdale for the point he made. I shall certainly bear it in mind when considering what our future programme should be. However, I turn now to the amendments before us. As the noble Lord, Lord Mishcon, outlined the principles behind them, I do not think that I need deal with them in detail. According to my advice, I believe that there may be a question as to whether they entirely succeed in achieving his aim.

As I understand it, the amendments have two objectives. The first is to achieve fairness in what supporters of the amendments believe to be an otherwise unfair situation. The second is to allow flexibility in the way parents settle their financial arrangements to ensure that the best use can he made of their resources; and perhaps, most especially, so that the arrangements can secure a home for the children. The Government share those objectives but believe that they are already catered for under the Bill. I appreciate the fact that one likes to forecast the outcome of such matters, but any advice would always have to be conditional upon the final form of the Bill.

As to fairness, the parti[...] and the court in settling other aspects of financial and property arrangements on family breakdown will know how much is payable as maintenance under the Bill and will be able to adjust the other elements to take account of it. I attach importance to that point because one of the views expressed to me by people involved in such difficulties —I mentioned this on Second Reading —is that it is very hard to know what the court may do if one is contemplating divorce. I do not believe that even the most experienced people can be absolutely certain of how such matters may he settled. Therefore, there is something to be said—I put it no higher than that at present—for having at least one definite element in these matters.

What is more, to the extent that any transfer of property increases the transferring parent's costs and reduces his income it will generally be reflected by a lower award under the formula; in other words, if his income is reduced by an increase in relevant cost, then the award made against him will be reduced. That result will be enhanced if the transfer reduces the caring parent's and children's living costs and increases their income. Therefore, if the house goes to the caring parent and the children it will reduce their housing costs and that, in turn, will emphasise the reduction in the award which will be payable under the formula.

The noble Lord, Lord Meston, said—I am sure he is right—that that is not the sort of arrangement one can achieve on a pound-for-pound basis as the result of a transfer. The formula is devised in such a way as to give effect to these arrangements ill a way that would seem fair. Nowhere is that result clearer than in relation to the family home and the second objective of securing a roof over the children's head which the Government see as being an important aspect of providing proper care for a child.

As pointed out in the White Paper, it will be for the court to decide how to deal with the family home. I have no doubt that the appropriate orders will be developed in the light of the relevant law. It is recognised that at present the court often orders the absent parent to postpone or forgo his interest in the family home so that the caring parent and the children can remain in the house or have sufficient capital to buy another.

We believe that the court will still be able to make such arrangements in cases where it does so at present. The reasons are as follows. If the family home is transferred to the caring parent, the absent parent's housing costs will generally be increased because he will either have to rent accommodation for himself or take out a higher mortgage than would have been necessary had he received his share in the equity of the house. Under the present system, that fact is taken into account in appropriate cases by the court reducing the maintenance payable. It is from there that the noble Lord derived the observation that the arrangement is not always worked out on a pound-for-pound basis.

The formula will have the same effect. The absent parent will be able to claim his reasonable housing costs against the income assessable under the formula. What is more, because the caring parent's housing costs may be lower than would otherwise be the case, her assessable income, and hence her share in meeting the maintenance due to the children, may be increased which would further reduce the absent parent's liability. In these circumstances, the Government see no reason why the courts with their flexible powers should not continue to achieve overall fairness between the parties and ensure wherever possible that the children are not deprived of their home.

The first amendment to Clause 5 is a slightly different case and not, I think, dealing directly with a formula but dealing with sums awarded over and above. As to that amendment, the reasons given for not allowing a set-off also apply. What is more, the amendment gives no indication as to how any property transfer is to be taken into account, and the Government would be concerned if the effect was to leave a caring parent, who is already receiving state benefits, more dependent on them than would otherwise be the case. To do that would in effect mean that taxpayers, many of whom do not have houses or other property of that kind, would be making a present of them to caring parents. That cannot be right. Of course there is a further point which has to be borne in mind: often these transfers involve the transfer of a mortgage as well as of the equity in the property. That may well be relevant to the amount of state benefit, for example, that the caring parent is able to get.

I have spoken mainly about the home, but a capital settlement, other than a home, on a child would also produce income or be deemed to do so, and that would also be taken into account in the formula as part of the carer's income. So I have to say that when all these proposals were originally being considered this was one of the aspects that concerned me. In the light of the consultations we have had with the professional bodies, I have personally reached the conclusion that the effect of the formula will mirror what the court does. .Of course it cannot be done precisely, but it will mirror it in the proper direction in the way that I have sought to explain. I hope what I have said may be a sufficient answer for the time being to enable the noble Lords who have supported the amendment to consider the position.

Lord Misheon

I am most grateful for the indication of the Government's point of view on this matter and naturally we shall want to look at it very carefully. We may well have to return to it at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Earl Russell moved Amendment No. 29:

Page 3, line 39, leave out ("without delay") and insert ("within 28 days").

>The noble Earl said: This is a drafting amendment, but it raises a point of some importance. It deals with the length of time during which the caring parent has to make an authorisation to the Secretary of State to make an application for maintenance. The amendment proposes to alter the words "without delay" to "within 28 days". We feel that the words "without delay" are both peremptory and uncertain and that seems to us an unsatisfactory combination. There may be good cause for delay: for example, there may be illness. The Bill does not say, "without unreasonable delay"; it simply says "without delay".

The people facing this procedure are likely to be people who are sometimes already in a considerable state of distress and this requirement, spelt out so peremptorily, might serve further to increase that distress. On the other hand, were one facing someone like the Shakespearian character who was always turning up and saying "Anon, Anon, Sir", that could provide an excuse for even further and continued delay. Would it perhaps be more useful to specify a period of 28 days, which is, I believe, quite normally accepted within social security legislation. I beg to move.

Lord Carter

I was pleased to add my name to this amendment. I could not help wondering, when I saw the words "without delay", whether this represented the Government's haste to save on social security benefits and that was the reason for those words being used. I think that the parent concerned would need time to take advice, to reflect and to be absolutely sure that he or she understood the implications of the application. I think the point has been well made by the noble Earl, Lord Russell. We do not seek to spin the thing out unconscionably and it would seem that 28 days would be reasonable.

Lord Simon of Glaisdale

I do not know whether there is any interpretive authority on the meaning of "without delay". The usual term is "immediately", which is construed in the courts as meaning within a reasonable time. Unless there is other authority, I am inclined to think that "without delay" would be interpreted in the same way. I do not dissent from the argument of the noble Earl, but in my view it would be quite acceptable to leave words that mean "within a reasonable time".

Lord Henley

I take it that the noble and learned Lord is saying that he feels that "immediately" would have the same effect as "without delay" and that "immediately" would be interpreted as "within a reasonable time". I believe, as the noble and learned Lord says, that "without delay" would probably be interpreted in much the same way—although of course I speak without authority.

I do not think we are far apart on this amendment but perhaps I might just explain the Government's view. I hope to be able to satisfy the two noble Lords, whose names are attached to this amendment. When a caring parent claims income support, family credit or, as we agreed earlier, another prescribed benefit she will be required, unless she has good cause not to, to complete and return a maintenance application form. This form will give the caring parent's authority to the Secretary of State to take action to obtain maintenance and also provide information to help trace the absent parent and recover maintenance from him. The present wording of the clause requires caring parents to return the form "without delay", which I imagine the noble Earl feels too imprecise and that is why he has put down his amendment giving a specific time limit of 28 days.

I can understand the advantages to be gained from being as specific as possible in legislation. However, there are on this occasion disadvantages as well. One of the key objectives for the new Child Support Agency is to provide an efficient and speedy service. It is in the interests of the children to get maintenance in payment, and to establish in the absent parent the habit of paying maintenance, as quickly as possible. In many cases the caring parent will have the information that is needed to obtain maintenance readily available, and we think it reasonable that she should provide us with this information as quickly as she can. With a time-limit of 28 days to return the form, some caring parents who could return the form in a couple of days will not in fact do so. This will delay the pursuit of maintenance and may, in some cases, make the tracing of the absent parent considerably more difficult.

Of course, there is another possibility that is obviously much less likely to be common. There may be cases where it is considered reasonable for a caring parent to take more than 28 days to return her form. If we accepted this amendment then we would be unable to take account of such circumstances. In those circumstances, noble Lords might accept that their amendment could be too prescriptive.

I accept that such an eventuality could be much less common but there could be examples, such as going into hospital, illness of the children, illness of the caring parent, or whatever, where a delay might occur. In such a case, to be prescriptive with a figure of like 28 days might be over prescriptive. With that assurance I hope that the noble Lords will feel able to withdraw their amendment.

Lord Mishcon

Having listened to the debate perhaps I may make a short intervention, again taking it for granted, despite what the noble Minister says, that the ordinary man and woman in the street will read this legislation in regard to the matters that affect them and will want to understand it. Officers may be in exactly the same position, according to the Minister. They, not being lawyers, will also presumably not want to read it, or understand it, but I take a contrary view to him on that.

Would it not be sensible to take account of the noble Lord's very wise words about the occasional case where there would be a reasonable delay and alter the words "without delay" to "without unreasonable delay"? In those circumstances we would get the best of all possible worlds. There must not be an unreasonable delay, but where there is a reasonable delay the officer, or applicant, would know that if they gave good reason there is a chance; whereas the officer may think that he has no right to adjudicate. There has been delay, it has been reasonable, but there was delay.

Lord Skelmersdale

It is perhaps just as well that one of my noble friends is not in the Chamber, otherwise we would have a great discourse on the difficulty for the courts in interpreting "reasonableness".

Lord Henley

I thank my noble friend for that intervention. I shall consider what the noble Lord said because he made a valid point. As I said in my earlier response to this amendment, I do not think that we are that far apart. We do not like a specific time limit of 28 days, but if it is possible to come forward with a better form of words, certainly we shall do so. I give the noble Earl no assurance on that, but certainly we shall look at the possibility.

Earl Russell

I am grateful to my noble kinsman for that assurance. I take his point about the dangers of prescription. I listened with a great deal of interest to the suggestion of the noble Lord, Lord Mishcon, with which I sympathise. Pending the Government's reconsideration before Report, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 29A:

Page 3, line 42, leave out ("or qualifying children").

The noble and learned Lord said: This amendment again raises a question on the Interpretation Act 1978, following the gender swapping amendment of the noble Lord, Lord Houghton. The provision immediately follows that in which the feminine connotation includes the masculine. Perhaps I had better read the provision in Section 6: In any Act, unless the contrary intention appears ... (c) words in the singular include the plural".

The noble Lord, Lord Houghton, bowed to the Interpretation Act and accepted that it governed his amendment. I hope that the Minister will follow his good example.

On page 3, line 42 of the statute, subsection (2) states: That authorisation shall be given, without delay, by completing and returning to the Secretary of State an application— (a) for the making of a maintenance assessment with respect to the qualifying child or qualifying children".

By virtue of the Interpretation Act, "qualifying child" includes qualifying children. I believe that I know why the draftsman has drafted the provision in this way. He has done so probably for two reasons: first, under the formula, a composite sum is worked out for more than one qualifying child. But that does not in any way obviate the operation of the Interpretation Act.

The other reason is that elsewhere in the Act we find the words "qualifying child" alone, quite often denoting only the singular. However, I have been able to find nothing elsewhere ill the Act that would show a contrary intention for "qualifying child" to include the plural in this subsection. I therefore beg to move.

Lord Henley

I thank the noble and learned Lord for raising this matter. I believe that his amendment is intended to ensure that there is consistency in the wording of the Bill. I readily accept that there is room for improvement.

Parliamentary Counsel is already considering whether the clause needs amendment in order properly to reflect the policy intention. I shall certainly pass on to him the comments of the noble and learned Lord and no doubt they will help him in his deliberations. For the moment, since I have listened to what the noble and learned Lord said, I hope that he will feel able to withdraw his amendment. We shall certainly examine the point.

Lord Simon of Glaisdale

I am grateful to the noble Lord. In view of what he said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

[Amendment No. 30 not moved.]

Lord Carter moved Amendment No. 31:

Page 3, line 45, at end insert ("in respect of the continuous period in respect of which income support or family credit is paid to or in respect of her.").

The noble Lord said: This is a probing amendment. It will take very little time to explain it. The amendment seeks to make it clear that the authorisation in Clause 5 ceases when the caring parent leaves benefit. The amendment seeks to determine when the authorisation ceases. I beg to move.

Lord Henley

As the noble Lord has said, this amendment seeks, for those caring parents receiving income support or family credit, to limit recovery of child maintenance to that period for which benefit is paid. The effect is that once benefit stops being paid, for example because the caring parent returns to work, the Secretary of State will not be able to continue to recover maintenance on the caring parent's behalf. If she wished to receive maintenance for her children, the caring parent would have to make another application to the Child Support Agency. This would put both the caring parent and the Child Support Agency to unnecessary extra work and, more importantly, may well result in a break in the payment of maintenance. This would clearly have serious implications for the caring parent whose decision to leave benefit may well have been influenced by the belief that she had a regular and secure source of income through maintenance.

The effect we wish to achieve is that a person with care who leaves income support or family credit should be in the same position as someone who had voluntarily asked the Secretary of State to act; that is, the Secretary of State will stop acting if the person with care asks him so to do. We are considering whether a government amendment is needed to this end.

As I have said, we think it right that the person with care should be able to decide whether she wishes to stop receiving maintenance when she leaves benefit. This amendment would mean that she had no choice in the matter. Maintenance would end whether she wished it or not. I do not believe that that would be in the interests of either the children or the caring parent. I do not think either that that is the intention behind the noble Lord's amendment. Therefore, I hope the noble Lord will feel able to withdraw the amendment.

Lord Carter

I am extremely grateful to the Minister for that explanation. It is the explanation I wished to hear. As the Minister said, the Bill may require some further amendment to make the point absolutely clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 and 33 not moved.]

The Lord Chancellor moved Amendment No. 34:

Page 4, line 10, leave out ("he") and insert ("the Secretary of State").

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

On Question, amendment agreed to.

Lord Carter moved Amendment No. 35: Page 4, line 12, after ("traced") insert ("(where that is necessary)").

The noble Lord said: This is a drafting amendment. We are not entirely clear why Clause 5(6) (a) (i) does not include the words "where that is necessary" whereas Clause 6(5) (a) (i) includes those words. I hope the Minister can explain. I beg to move.

Lord Henley

I refer the noble Lord to the wording in subsection (6) (a) of the clause. This says that the caring parent shall give the Secretary of State such information "as he considers necessary" to enable, among other things, the absent parent to be traced. So the clause as it stands already allows for information to be provided only where it is considered to be necessary. The amendment is unnecessarily repetitive and adds nothing to the Bill. I hope therefore that the noble Lord will feel able to withdraw it.

Lord Carter

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 36:

Page 4, leave out lines 16 to 19.

The noble Earl said: I can best make the case for this amendment by reading the words I propose to delete from the Bill. These are the words which place a duty on the caring parent to, comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires".

That is such a general provision as to be something very close to a monastic vow of obedience. It binds the parent to comply with regulations whose purpose has only in the most general terms been specified and whose detail has not been specified at all. We have not been given any opportunity to judge the regulations. The way this subject has been handled in past centuries leads one to the belief that the provision could authorise the most intrusive of inquiries into private lives. For example, it could authorise inquiries into drinking habits or, God forbid, inquiries into smoking habits. It could authorise inquiries into digestion. Before we approve anything like this we should have rather more idea of what we are approving. This is another case of the excessive use of regulations. I beg to move.

The Deputy Chairman of Committees (Lord Ampthill)

I should remind the Committee that if the amendment is agreed to I shall be unable to call Amendment No. 37 which has already been spoken to by the noble and learned Lord the Lord Chancellor with Amendment No. 13.

Lord Carter

I am pleased to support the amendment. Under subsection (6) (a) the Secretary of State seems to have all the power that he needs and there is no justification for such unlimited power to prescribe the categories of information required. It will be interesting to hear the Minister's explanation.

Lord Henley

As the noble Lord said, the amendment seeks to remove from the caring parent the requirement to comply, as far as she reasonably can, with regulations which will prescribe the categories of information to be provided to the Secretary of State for the purposes of her application for maintenance. In each case the caring parent would, of course, still be subject to the general requirement to co-operate. It is only the detailed regulations which would go. On a point of information, the same requirement to comply with regulations concerning categories of information exists in Clauses 3 and 6.

If someone is asked to provide information, in whatever context, it is reasonable for that person to ask, "What kind of information do you want from me?" Both the person requesting the information and the person providing it need to know the type of information which will serve the purpose for which it is needed.

Setting out categories of information needed for an application for maintenance in regulations will provide both parties with a firm idea as to the type of information required. We have still to work out the fine details of what should be included in regulations, but such information as the name and address of the absent parent are examples of the type of information the child support agency will need to have in order to obtain maintenance. I do not think that the smoking habits of my noble kinsman are likely to be listed in the information required.

We therefore see the requirement in the subsection as helping the caring parent as it will make clearer to her what information she should reasonably provide when completing her application form. On that basis I hope that my noble kinsman will feel able to withdraw his amendment.

Lord Mishcon

I am afraid that the Minister has not answered the very real point that has been made by those who are moving the amendment. We in Parliament want to see to it, even if it is necessary to have affirmative resolutions, that Ministers do not behave in regard to the ordinary citizen in a manner which is repressive and which they can claim comes under powers which were granted by Parliament.

As the Minister mentioned, the information which is likely to be required by the Government, and certainly by the department, for example, in regard to the address and particulars of that kind, falls clearly under subsection (6) (a) (i), which relates to the absent parent to be traced. As many of us do, the noble Earl, Lord Russell, gave an extreme example in order to show how wrong is the all-pervading power contained in subsection (6) (b). One can go further. Under the regulations it would be perfectly appropriate to ask for the most intimate particulars, especially in regard to a lone parent. When mandatory information is to be required from the citizen the Government owe it to Parliament to describe the nature of the information very clearly so that Parliament knows what it is passing.

As the noble and learned Lord knows, I treat all his remarks with respect; but I have heard him say before in another connection that one has to be flexible, and in parliamentary legislation one cannot do everything that one would necessarily want to do. Therefore, because one cannot amend by insertion except by an amending Act, which is very difficult, it is done by regulation since that is easily dealt with.

The categories have been set out. They can be generalised so that Parliament knows very easily in primary legislation what it is authorising by saying: any information which directly bears on

whatever it may be. One knows exactly with what one is dealing. However, this all-pervading power that is being given in statute is all wrong. This Chamber and another place do not want to give the Government powers, which may be of a most delicate and inquisitorial nature, to do that. I repeat that primary legislation can set out categories without any difficulty in this connection. It should be in primary legislation.

Lord Stoddart of Swindon

I support the noble Earl, Lord Russell, and my noble friend Lord Mishcon. This is a catch-all situation. My noble friend is right to say that this kind of wording should not be included in primary legislation. All sorts of delicate questions might be asked.

Earlier, perhaps a little prematurely I asked about the situation of the virgin birth. Presumably that is one of the questions that may be asked. The mother may be on maintenance and when asked, "Who is the father?", will reply, "Well, it was a virgin birth. It was a birth by AID". It is a very delicate matter and I do not know the answer.

In order for the noble Lord, Lord Henley, to be able to write and reply to me, which he promised to do and—I am most grateful to him—let me again try to put the point that I was trying to make to him. Where a single woman has a child by artificial insemination by donor and is drawing state benefits, what is the situation? There has been no physical intervention by a man through normal intercourse so the mother is unaware of the identity of the father. The father of the child cannot be pursued for maintenance and the state could be required to keep the child throughout its whole childhood without any assistance from the father. That is why I raised the point about virgin births, which, as noble Lords opposite will know, surfaced only this week in a most direct manner.

It is also relevant to this particular amendment. Is a woman who is claiming benefit to be required to answer the question whether she was inseminated naturally or by AID? If she answers that it was AID, how is the state to pursue the father for maintenance unless he can be identified by certain records, which records I understand will not be made available to the pursuing authority. That is my point.

I hope that the noble Earl, Lord Russell, will forgive me for introducing it at this point, and that he will agree that it has some relevance to his amendments.

Lord Simon of Glaisdale

I venture to support this amendment because 1 simply do not understand what are the categories that the Secretary of State may devise by way of regulation. Paragraph (a) requires him to be given all the information he needs to trace the absent parent, and so on, and all the information he needs to fulfil his duty under the Bill. However, paragraph (b) follows. Quite apart from the cogent objection voiced by Members of the Committee on the passion for legislating by regulation, of which this Bill is redolent, we are asked to give a blank cheque to the Secretary of State by regulation to list categories over and above the information that he needs for the purpose of the Bill. That seems to me to be completely wrong and quite unnecessary for the Bill. I hope that the noble Lord will accept the amendment.

9.45 p.m.

Lord Carter

Before putting my point to the Minister, perhaps I may say that when the noble Lord, Lord Stoddart, asked for a maintenance assessment for "the" virgin birth I think that he meant "a" virgin birth.

In his reply, the Minister referred to Clauses 3 and 6. He said, correctly, that the subsection appears in each clause. However, there is a difference between Clauses 3 and 6, which provide that the caring person "may" apply, and Clause 5 which provides that the caring parent of a child "shall" apply. To be forced to apply for authorisation and for power to be handed to the Government to seek any of the categories of information that they prescribe seems alarming.

It is not correct to cite the fact that the subsection appears in Clauses 3 and 6 as sufficient evidence for leaving in Clause 5.

Lord Henley

With all due respect to those who have spoken, I fear that noble Lords may possibly have over-reacted to paragraph (b) of subsection (6). In trying to delete that paragraph, one must remember that the amendment includes the specific phrase, for the purposes of this subsection".

Members of the Committee say that we can rely purely on paragraph (a). I wish to make the point that the noble Lord, Lord Stoddart, made: that new situations arise. The noble Lord raised the question of so-called virgin births and artificial insemination by donors. Do we wish to be over-prescriptive in the Bill as leaving in subsection (6) (a) might be? We have to allow the Secretary of State some discretion. Regulations will come before Parliament. At that point Parliament will have a chance to comment on them. I do not believe that the clause is as wide as Members of the Committee seem to fear.

Lord Mishcon

Before the noble Lord sits down, will be intimate what category is not covered by paragraph (a) that he might wish to have?

Lord Henley

The point that I sought to make—I shall make it again to the noble Lord—is that it is the very specific nature of the three sub-paragraphs of paragraph (a) which might prevent some other category which could easily be relevant from being considered by the Secretary of State. Primary legislation is not the way to get round that. Primary legislation is not always available to make such amendments to the requirement of information that he needs.

Lord Mishcon

I am sorry to persist. I promise that I do so for the very last time today. With all his wisdom and with all the advice that he has been given, can the noble Lord give an example of a category of information which would be required which is not covered by paragraph (a)?

Lord Henley

That is the point that I tried to make. The mere fact that we cannot think of some category to go into the Bill is a reason why the provision should be kept open. There is always the possibility that such an eventuality might be considered in regulation.

Lord Simon of Glaisdale

A provision such as this is not included in a Bill without the Secretary of State having an idea of what he wants to include in the regulations. That is all that the noble Lord is being asked to say at this time. What are the extra categories over and above what is required in subsection (6) (a)? Until we know that, we have no right to pass this kind of regulatory power. That is quite apart from the fact that it is unsatisfactory for the Bill to achieve what apparently is the object; namely, to have a catch-all clause in case something may hereafter turn up, in which case the provision might be useful.

The Minister must answer the question put by the noble Lord, Lord Mishcon. What are the categories?Z

What is required, or likely to be required, or might conceivably be required over and above what is required by subsection (6) (a)?

Lord Skelmersdale

Perhaps, first, my noble friend will tell the Committee whether, under the regulations, it will be possible to insert a negative condition. For example, the noble Lord, Lord Stoddart of Swindon, spoke yet again about the subject of virgin births. I suggest that in the circumstances the one issue about which the Secretary of State does not want to know is virgin births. By definition, if a virgin has gone, for example, to a sperm bank, that would not be germane to tracing an absent parent because I suggest that in those circumstances an absent parent would not exist.

Lord Henley

I cannot go beyond my previous answer to the noble Lord, Lord Mishcon. As my noble friend said, there might be a requirement for a negative condition to be included in the regulations, as in the case raised by the noble Lord, Lord Stoddart. It is important to have subsection (6) (b) in case such a requirement should arise.

Lord Stoddart of Swindon

I understand what was said by the noble Lord, Lord Skelmersdale, but he is taking the matter too far to suggest that the absent parent does not exist. The only virgin birth of that kind about which I know is that of Christ. The absent parent does exist but he may not be known.

Lord Skelmersdale

It may not be desirable that he should be known.

Earl Russell

I take the point made by my noble kinsman that the powers relate only to the purposes of the clause. I wish to ask him one specific question. For the sake of argument, let us suppose that a professional prostitute should become pregnant and be required to name the father. Under the clause, would the Secretary of State have the power to require her to list the names and addresses of all her previous customers? I should be reluctant to give him that power because I doubt whether she could do so if she were so required.

Lord Henley

I shall take advice on the point raised by my noble kinsman and I shall write to him.

Lord Mishcon

I trust that the Secretary of State would not want the information for his personal knowledge!

Earl Russell

I have thought long and hard about whether to press the amendment. My noble kinsman said that he thought we had overreacted. It is equally possible that Government circles have underreacted. I am extremely reluctant to ask for Divisions at this time of night. That is a course that should be taken extremely rarely but it should not be ruled out of court. I shall not do so on this occasion but the Government should take on board the fact that many Members of the Committee believe this to be an entirely unacceptable style of legislation. If it continues we shall reserve the right to divide the House at any time that it may come before us. I beg leave to withdraw my amendment.

Lord Simon of Glaisdale

Before the noble Earl is given leave to withdraw the amendment, do I understand him correctly that he will return to the matter on Report? I see that the noble Earl nods his head. In that case, I have no objection to the amendment being withdrawn at this stage. However, this is a crucial matter which is typical of the provisions of this Bill and typical of much modern legislation; namely, a regulatory power taken in case, in unforeseen circumstances, it may turn out to be useful. Having said that, I no longer oppose the noble Earl's request to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 37:

Page 4, line 17, leave out ("in particular").

The noble and learned Lord said: I spoke to this amendment when moving Amendment No. 13. I beg to move.

On Question, amendment agreed to.

Earl Russell moved Amendment No. 38: Page 4, line 19, at end insert:("or (c) make a statement to the effect that there are valid reasons for not providing the information required .").

The noble Earl said: In moving this amendment I speak also to Amendment No. 39. I have given notice to the Minister that I wished to do that. These are related matters. Amendment No. 38 deals with the necessity to give good cause for not complying with the requirement. Amendment No. 39 seeks to spell out specifically "good causes" and in particular it seeks to allow as "good cause" the threat of violence towards a parent or a threat of violence or sexual abuse towards the child.

That is a very moderate shopping list of good causes and is one which I hope the Government will consider. So far they have shown no signs of being prepared to spell out what they regard as good cause. That is a point on which the Social Security Advisory Committee has commented at some length at paragraph 10 of its second report, which I have mislaid. That committee is extremely unhappy about the Government's refusal to spell out what is good cause. It thought that to leave that to the discretion of adjudication officers was by no means sufficient.

My understanding is that the Government have conveyed to the Social Security Advisory Committee —but not, as far as I can gather, to this Chamber—that they are reluctant to spell out a specific list of good causes for fear that in doing so they may provide men with an incentive to do the acts specified as good causes. As I understand it, the Government's argument is a fear that if a threat of violence is a reason for not naming the father, then fathers will commit violence in order to get out of their obligations.

The suggestion that such an exception would be an incentive to commit violence is as true or, as I prefer to believe it, as false as the suggestion that this Bill is an incentive to commit murder. It is equally true or false that the father may wish to murder the mother in order to escape the obligation of paying maintenance.

It is necessary to say that in that case we are dealing with crimes and if the criminal law is not sufficient to deter people from doing what is involved, then it may be that the penalties of criminal law should be strengthened. Anyone who has had any dealings with the administration of a battered women's refuge—and my wife has—will be aware that that is an area of very intense and almost reflex fear among many people. People who feel that fear will reveal the whereabouts of that absent parent only with the utmost repugnance. In fact, it is much more likely that they will not provide the information at all and we shall find ourselves dealing with a disentitlement to benefit, a diminution of the child's income and a departure from the principle of the White Paper that children come first.

Mutatis alutandis, all that can be said also in the case of a child who has been subjected to incest or sexual abuse. There again, there will be a reflex fear. I can see no useful purpose being served by telling the offending parent precisely where to find the person against whom he has offended. That is becoming very near to being an accessory before the fact in a crime. I should be most reluctant to be a party to that. I beg to move.

Lord Simon of Glaisdale

I have considerable sympathy with the purpose of this amendment but I venture to question whether its terms are acceptable. The amendments states: make a statement to the effect that there are valid reasons for not providing the information required".

In that case, all that is required is a statement saying, "I have valid reasons for not providing the information required". What is needed is a statement indicating in general terms the nature of any reason for withholding information. As the amendment is drafted it will not take any of us any further.

10 p.m.

Lord Henley

I shall reply to both Amendments Nos. 38 and 39. Amendment No. 38 is an attempt to negate the whole purpose and effect of Clause 5. The clause places a requirement on a caring parent who is receiving income support, family credit or any other prescribed benefit to authorise the Secretary of State to recover child maintenance from the absent parent and to provide whatever information she reasonably can that will help to do so. The amendment means that a caring parent could avoid that obligation by merely saying that there are good reasons why she should not provide the information. I do not believe that such a provision is either desirable or necessary.

Amendment No. 39 sets out on the face of the Bill that the requirement to co-operate in obtaining maintenance established by Clause 5 shall not apply in cases involving violence, rape, incest and any other form of unlawful sexual intercourse. Of course I accept the concerns behind the amendment.

Amendment No. 38 is not desirable because it would apply to a parent who did not have good reason but simply did not want to have contact with the father regardless of the interests of the child. We are all agreed that it is not right for an absent parent to refuse to pay maintenance for his children when he can afford to do so. That simply transfers his personal responsibility for supporting his children to taxpayers, many of whom are bringing up children of their own. It is equally not right for a caring parent to refuse without good cause to co-operate in efforts to obtain maintenance from the absent parent.

Without good cause is the key. We have always recognised that there will be circumstances in which it would not be right to require the caring parent to co-operate in obtaining maintenance. We have already said that we will make exception where rape or incest is involved. There has been much concern that violence should be accepted as good cause. The SSAC, for example, said that while accepting that the threat of violence may be difficult to prove, women could be put in the position of having to choose between the risk of violence and a benefit reduction which would lower her living standards.

We have given careful thought to what has been said on this issue. Our proposals are aimed at putting the interest of children first, and their interests are not served if risk of violence to the caring parent is increased. So we agree that if on the evidence before us we are satisfied that there has been a history of violence in a case or the parent has well founded fear that seeking maintenance will put her or the child at risk of violence, that will be accepted as good cause.

We will ensure that child support agency staff are trained to recognise and to deal sensitively and carefully with these cases. We propose to set out main grounds for good cause in regulations. They will not provide detailed, all-encompassing and rigid lists but a sensible framework. A detailed and rigid list is neither possible nor sensible. We do not want to add to risk by spelling out just what an absent parent needs to say or do or threaten to do to avoid maintenance. There will be flexibility and scope for other grounds; for instance, where the caring parent genuinely does not know the identity of the absent parent. That may deal with the point raised more than once by the noble Lord, Lord Stoddart. We propose to consult on what goes into the regulations and here we hope that the expertise and good sense of the Social Security Advisory Committee will be invaluable. It is well used to advising and consulting on benefit issues.

Maintenance is in the interests of the children and also the caring parent. It is a portable income and helps the caring parent if she wishes to return to work. The child support agency will be able to do a lot to help obtain maintenance, even if the parents do not want to have dealings with each other. For instance, the agency will ensure confidentiality of information and it can act as a buffer between the parents and do all the work in getting maintenance from the absent parent. In the light of what I have said and the consultations and the flexibility that we hope to bring to bear, I hope that my noble kinsman will withdraw his amendment.

Lord McGregor of Durris

Before the noble Lord sits down, I wonder whether he can help me with a point which he has already raised. Let us suppose that there are two or three possible parents. As I understand it, tests can answer with certainty the question of paternity. Will it be the intention of the agency to compel those who are possible parents to undergo tests? Alternatively, if there is no compulsion but the parents are asked to undergo tests, will the agency wish to draw inferences from a refusal to undergo tests? In these difficult circumstances it will be helpful to know what the Minister envisages.

Lord Henley

We shall come to the very sensitive subject of blood tests and whether compulsion is required. Before responding to the noble Lord at this hour of the night, I should like to take advice on that point. I can write to the noble Lord which might help.

Lord McGregor of Durris

It will certainly help. It is a very important issue.

Earl Russell

I am not certain whether I heard my noble kinsman aright. If I did, he was giving a specific assurance that domestic violence will be regarded as a good cause for not blaming the absent parent.

Lord Henley

I shall spell out clearly what I was trying to say. I said that if there has been a history of violence or the parent has other good grounds to fear that seeking maintenance will put her or the child at the risk of violence, that would be accepted as good cause. There will have to be evidence. I do not think that one can go down the line suggested by the noble Lord's first amendment. There he is saying that an assertion by the caring parent would be sufficient.

Lord Mishcon

Perhaps I may help the noble Lord, Lord McGregor. There is a specific clause in the Bill dealing with the situation that he posed. Clause 20 says: (1) Where— (a) a child support officer is considering whether to make a maintenance assessment"— and (h) the alleged parent denies that he is one of the child's parents; and (c) the child support officer is satisfied that the case does not fall within one of those set out in section 19(2). the Secretary of State or the person with care may apply to the court for a declaration".

Therefore the matter is in the hands of the court. It is covered by Clause 20.

Lord McGregor of Durris

Thank you very much.

Lord Henley

I thank the noble Lord. I had in fact received a note exactly to that effect. It is obviously a matter for the courts and not for the agency.

Earl Russell

My noble kinsman's assurances on domestic violence seem to be not quite as helpful as I hoped they would be. He seems to be saying that domestic violence will only be regarded as a good cause if it takes place in the presence of witnesses. I am reminded of the Adultery Act—

Lord Henley

If the noble Earl will give way, I said nothing of the sort. What I said was that there had to be evidence. The noble Earl will know—if he does not, he can certainly consult lawyers—that there are forms of evidence available in these circumstances other than witnesses.

Earl Russell

There may of course be bruises. There may be dispute about how those bruises originated. If that is not a requirement for witnesses, I do not see what it is. In fact, I find it very hard to see how domestic violence can be proved, except by the woman's assertion. If that is not sufficient, I think we shall encounter problems to which we shall have to return at a later stage of the Bill. I was going to say that it reminds me of the Adultery Act 1650, which made adultery a criminal offence and then insisted that conviction should require that the crime be committed in the presence of two witnesses, which, of course, it very rarely is. There is, I believe, one known conviction under that Act. I should be a little unhappy at the thought that there might be only one woman who might secure exemption under this clause. Clearly at the moment we are running into misunderstandings. On the basis that I shall return to the matter at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Clause 5, as amended, agreed to.

Viscount Astor

I beg to move that the House do now resume.

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

House resumed.