HL Deb 18 March 1993 vol 543 cc1615-8

7.28 p.m.

The Lord Chancellor rose to move, That the draft order laid before the House on 8th March be approved [23rd Report from the Joint Committee].

The noble and learned Lord said: My Lords, the Motion before the House is one of a number of orders made under the Child Support Act 1991 which comes into force on 5th April this year for some purposes. It is made in accordance with powers conferred on my noble and learned friend the Lord Advocate and me by Section 45 of that Act. Those powers allow me to make provision for appeals or alternatively a certain class of appeals, to be dealt with in a particular way.

In general, an appeal against a review by a child support officer will be heard by a child support appeal tribunal. It is envisaged that the tribunals will be able to handle the majority of appeals quickly and efficiently. It is expected that they will soon develop expertise in this specialist area of work. However, a case which involves disputed parentage falls into a category of fundamental importance. In the circumstances, it is more appropriate that the matter is determined by a court. That is the policy of the main provisions of the Bill as it was enacted. However, in order to make absolutely sure that appeals raising this issue are dealt with in that way, the order has been proposed in draft to your Lordships.

Articles 3 to 5 provide accordingly for England and Wales, and for Scotland, both for appeals against reviews and for appeals against refusals of applications for reviews. As a consequence, Articles 6 and 7 make consequential amendments to Section 20(2) to (4) of the Act. Article 8 contains a consequential amendment to Section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986, which contains a definition of "action of declarator".

My noble and learned friend the Lord Advocate concurs in seeking approval of the order in so far as it relates to Scotland. I commend it to the House.

Moved, That the draft order laid before the House on 8th March be approved [23rd Report from the Joint Committee]. —(The Lord Chancellor.)

Baroness Mallalieu

My Lords, the draft order has the support of this side of the House. While we believe that it is generally undesirable that questions of child support should be settled in the formal surroundings of a court in which some appellants may be inhibited by the prospect of appealing to a court of law, where the question at issue is a child's parentage the rights and liabilities at stake are sufficiently fundamental and important that we believe they justify an appeal to a court.

This order, which provides that an appeal under Section 20 of the 1991 Act shall be made to a court instead of to a child support tribunal in such cases, seems good sense and has our approval.

Lord Meston

My Lords, I thank the noble and learned Lord for his explanation of the order. Generally speaking, this House is alert to prevent or curtail powers allowing for the modification of primary legislation by orders or by other secondary legislation. However, since the noble and learned Lord, Lord Simon of Glaisdale, is not in his place, I suspect that the order is unobjectionable.

In this case, the power under Section 45 of the Act is used to move certain appeals from the tribunals to the courts. Without wanting to refight the battles of 1991 when the Act was a Bill, we feel that the move in this order from the tribunals to the courts is a move in the right direction. I suspect that in reality very few appeals will get that far. Modern DNA profiling techniques have taken most of the "fun" out of paternity disputes; but I suppose that there may be some arcane questions of parentage which may need to reach the court for guidance. I ask whether legal aid will be available for such appeals, subject of course to their merits being assessed.

Practitioners are now waiting for next month when the Act comes fully into operation. We are waiting with suspended judgment and with admirable (if rather costly) computer software. We have been provided by the department with excellent guidance booklets which reduce the ghastly formulae to something comprehensible. I seriously hope that those responsible for the "Plain English" awards will look at those booklets because, given the complexity of the legislation and the regulations, they are remarkably good.

I hope that the order is not to be the only use to be made of the courts instead of the tribunals. It seems to many of us that a fundamental problem in the working of the Act will be that of financial non-disclosure by parents whose finances are not straightforward. Practitioners know how difficult it can be to penetrate the underlying financial realities of self-employed people with skilfully drawn accounts or with no reliable accounts at all. They are often people who manage to show a healthy loss in their business accounts but who are unable to conceal a high standard of living. Frankly, we doubt how much time or expertise the agency will have to discover the realities of such cases. The family courts already have the expertise (as well as the powers) to obtain proper disclosure. I hope that that will not be altogether lost.

I venture to suggest that consideration should be given to the use of the courts for appeals where at least the ground of appeal is major non-disclosure of finances. The alternative is that appeals will go to the tribunals which, as I understand it, expect to be heavily burdened with appeals. Legal aid is not available. There is no power to award costs—only a power to award expenses out of public funds. There is no power to direct questionnaires, as I understand it —questionnaires being a common device in financial proceedings in the courts. It would be quite unreal to expect a partially-informed mother (in the typical case) to cross-examine a father as to his means.

Practitioners feel that dealing effectively with inadequate disclosures may well be a fundamental problem in the working of the Act. I suggest that there will be a category of appeals in such cases that should be allocated to the courts under this power. In so doing, the burden on the tribunals will be reduced in what would otherwise be inevitably long appeals. The tribunals themselves will be able to sustain the confidence to which they should expect to be entitled and they will have the ability to deal swiftly with other appeals.

Lord Renton

My Lords, although of Scottish ancestry the noble Lord, Lord Meston, has a much respected and successful practice in our Family Division in England. I agree with most of what he said.

Parliament has always been very jealous in taking upon itself the responsibility of deciding what jurisdiction each court and any statutory tribunal shall have. Until this matter arose, I did not know that powers had been taken under Scottish law for the courts in Scotland to come into the picture. Normally, I would have been alarmed at the prospect of primary legislation not being the method by which that is done. It is being done by secondary legislation. However, as the noble Lord, Lord Meston, said, to some extent this is a welcome move for the reasons which my noble and learned friend has given, and for other reasons which the noble Lord has given. Therefore, speaking for myself, I do not propose to divide the House on this order —to do so would be contrary to our custom, anyway. However, I do think that we should normally bear in mind that it is the responsibility of Parliament to decide the jurisdiction of every court and every tribunal.

The Lord Chancellor

My Lords, I am grateful for the support that my Motion has attracted from all of your Lordships who have spoken. For appeals to the court, legal aid will be available on the usual conditions to be effective after this Act comes into force.

On the point raised by the noble Lord, Lord Meston, the tribunal is given considerable powers. The important thing about the Child Support Agency is that it will have considerable investigative powers in relation to income. The noble Lord perhaps doubts the nature of the expertise available, but I am sure that that is something that can be developed, and your Lordships may take it that my noble and learned friend the Lord Advocate and I will wish to see how that develops. It is a new system, and one in which considerable emphasis is placed on obtaining the money. The noble Lord, Lord Meston, and others of your Lordships who practise in this field, will know that one of the complaints about the present system is that having obtained an order, it is not a great deal of use until one receives the money. Sometimes it is difficult to obtain the money.

I hope that the Child Support Agency will be effective in recovering money which a parent is obliged to pay. We have proposed this system in the light of the general policy of the Act itself. Parentage questions should be for the courts. I hope that the rest of the scheme will work as was expected when the Bill was being considered by your Lordships. However, I shall keep its working under review, especially with respect to the point of view to which the noble Lord, Lord Meston, has directed attention. I commend the order to the House.

On Question, Motion agreed to.

The Earl of Strathmore and Kinghorne

My Lords, I beg to move that the House do adjourn during pleasure until eight o'clock.

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

[The Sitting was suspended from 7.41 to 8 p.m.]