Civil Legal Aid (Scope) Regulations 1993 (Hansard, 10 May 1993)

§ Lord Irvine of Lairg

My Lords, as the noble and learned Lord explained, the regulations extend legal aid but only in two narrow situations. The first is where a maintenance assessment order made by a child support officer is challenged because there is a parentage dispute. The second is in proceedings for a declaration of parentage. I understand that the regulations are necessary because of the combined effect of the Child Support Appeals (Jurisdiction of Courts) Order 1993 and the Children (Allocation of Proceedings) (Amendment) Order 1993. They provide that such proceedings shall be determined by a court instead of a child support appeal tribunal and that the court in question, in the first instance, shall be the Magistrates' Court.

1059 We welcome the extension of legal aid to these proceedings. Indeed, such an extension was surely inevitable. It can hardly be suggested that important decisions relating to the identity of a parent of a child should be made without proper representation of the persons affected. Although a declaration under the 1991 Act is valid only for the purposes of the Act itself, it is an important decision which goes beyond mere financial implications. It decisively affects the child/parent relationship and should be approached in an informed and measured way.

However, the impact of the new provisions should not be exaggerated. They do not apply to appeals from a child support officer on other grounds. These are still to be heard by a child support appeal tribunal where no legal aid will be available and where the litigant, usually the mother, will be expected to manage as best she can. That is no mean feat. I have studied Schedule 1 to the Child Support Act, which sets out the way in which child support is to be calculated. Although my own mathematical skills are no more than tolerable and in a lesser league than those of the noble and learned Lord, I challenge anyone without a good degree in the subject to make sense of its provisions. The general rule is: (A + C) × P where—A is the absent parent's assessable income; C is the assessable income of the other parent, where that parent is the person with care, and otherwise has such value (if any) as may he prescribed; and P is such number greater than zero but less than 1 as may be prescribed". As one's eye travels down the page of the Act one encounters even complicated formula such as: G = MR/(A+C)*P I hope that I am not being unduly pessimistic by suggesting that these calculations and others appearing in the schedule are unlikely to be undertaken with ease by the average single-parent mother. Yet if she is to challenge the child support officer's figures, she will need to know how he arrived at them and whether the formula was applied correctly. All that is to be done without any benefit of legal aid.

Furthermore, in cases which do not relate to paternity, appeals are dealt with initially by child support appeal tribunals. Further appeals to a child support commissioner and ultimately to the Court of Appeal are available but only on a point of law. At the moment legal aid is not available for proceedings before the tribunals or the commissioner although it is available for proceedings in the Court of Appeal. We urge that legal aid should be extended immediately to hearings before the commissioner since it is unrealistic to expect unrepresented applicants to argue points of law.

We must also remember that parentage proceedings are allocated to the Magistrates' Court. Of course, under the allocation provisions procedure exists, at least in theory, for their upward transfer to the County Court and to the High Court. But the history of the Children Act during the past 18 months has been one of very great reluctance by magistrates to let go of proceedings before them lest they be thought "not up to the job". Perhaps on another day the noble and learned Lord will tell the House the percentage of 1060 successful applications made in that regard. My own impression, albeit gleaned anecdotally from practitioners in the field, is that the percentage is likely to be very low and that, as a result, reductions have to be made to the circuit itineraries of the High Court judges.

Finally, perhaps I may take the opportunity to raise again the deep anxiety felt by many about the basic principles underlying the Child Support Act. While we accept that parents ought to take responsibility for their children, we consider it even more important that children should not be punished for the shortcomings of their parents. That is precisely what Sections 6 and 46 of the 1991 Act bring about. The mother who refuses to give information leading to the identity of the father and does not satisfy the child support agency that that is out of fear of violence may find her own benefit substantially reduced.

And so in practice the sins of the parents are visited upon the children. It is no answer to say that benefit affected by the refusal of the mother to disclose the identity of the father is the mother's benefit and not that of the child. There must be few households in the country where those on benefit carefully keep separate the amount paid for the mother and the amount paid for the child and allocate each accordingly. The reality is that the money all goes into the same pool and if the pool is smaller the children suffer. We on these Benches will carefully monitor the hardships which the Act will undoubtedly bring about and which are only minutely assuaged by the present legal aid regulations. On a suitable occasion we shall seek to bring these matters to the attention of the House.

While I am on the shortcomings of the Child Support Act, perhaps I may take this opportunity to inquire of the noble and learned Lord when Section 7 will be amended so that the English or Welsh child may have the same rights as his or her Scottish counterpart to apply for maintenance himself or herself. When will the children of those parts of the United Kingdom attain equality in this matter? Does the noble and learned Lord not agree that now that Scotland has led the way it is time for England and Wales to follow?

That said, we welcome the very limited extension to legal aid which the regulations represent.

§ The Lord Chancellor

My Lords, as regards the final point which the noble Lord made, the different statutory provisions affecting England and Wales on the one hand and Scotland on the other reflect differences in the underlying law which has hitherto prevailed. The noble Lord and I may have views as to which is the better of the two systems, but that is the present situation as Parliament determined it when the Act was passed.

This is not the place to detail the philosophy of the Child Support Act again. All those matters were fully debated. I have heard more criticism of the provisions of the Act on the lines which the noble Lord made tonight than constructive suggestions as to how the 1061 state should deal with a situation in which someone for no good reason refused to state who had primary responsibility for the maintenance of a child.

As regards the child support commissioners and the child support appeal tribunals, the present situation reflects that which has always obtained in respect of the social security tribunals and commissioners. I have said that when resources were available the social security commissioners would be a higher priority for me as regards the extension of legal aid. I could not contemplate that at present because of the general situation of the legal aid fund and the pressures upon it.

On the assumptions of those particular provisions in the draft order, I understand that there is universal agreement. Therefore, with some confidence I commend my Motion.