HL Deb 25 May 1995 vol 564 cc1060-76

12.27 p.m.

Report received.

Clause 2 [Associated persons]:

The Lord Chancellor moved Amendment No. 1:

Page 2, line 1, at end insert: ("(dd) they have agreed to marry one another (whether or not that agreement has been terminated),").

The noble and learned Lord said: My Lords, in moving Amendment No. 1, I should like to speak also to the subject matters of Amendments Nos. 2 to 5.

Amendments Nos. 1 to 5 enable persons who have agreed to marry to be "associated persons" able to apply for remedies in the Bill in certain circumstances. The Law Commission recommended that persons who have agreed to marry should be "associated persons" for the purposes of the Bill. One of my concerns about that recommendation was that the whole purpose of proceedings in the Bill was to give quick and adequate remedies in particular circumstances. The last thing that I wanted to encourage was a long preliminary trial which had to do with entitlement, but which had nothing whatever to do with the substance of the matter with which the parties were seeking to deal. That is precisely what brings the law into difficulty and sometimes into disrepute. That can happen if there is a long preliminary inquiry which has nothing to do with the subject matter, so far as anybody can see, but which is embarked upon simply so that the person concerned is qualified to bring proceedings. So at first I was not happy to have such a category in the Bill.

As the evidence before the Committee developed, it seemed plain that there might be cases where it would be easy to prove that entitlement. It may have been a bit harsh, unnecessary and unwise to exclude those. If we could find some way of satisfactorily differentiating between the cases in which the entitlement could be proved readily and those in which it would take a great deal of time, that would be the best answer to the problem. We had some discussions about those issues in Committee and we have had some since.

The noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Meston, the noble Baroness, Lady David, and my noble friend Lord Butterworth produced an amendment addressing that concern before I produced mine. I believe we are all agreed that we want to provide a remedy in the cases falling within that category where it would be fairly easy to establish the title of the applicant as conforming to the description. The Government's amendment is intended to cover the whole subject matter of the other amendment and it does so except in one particular category. The second part of Amendment No. 2 refers to a new category of persons who, have undergone a ceremony of marriage in the presence of others assembled for the purpose of witnessing the ceremony whether or not such a ceremony creates a valid marriage".

I understand that that is intended to cover non-effective marriage ceremonies among certain groups. So far as I have been able to follow it up to now, I do not favour that amendment as it appears to have the effect of conferring, at least to some extent, recognition on marriages which do not satisfy the requirements of English law. The intention is not to confer the status of marriage but that part of the amendment would have the effect of conferring on the ceremony a validity for a purpose which is different from the purpose of the ceremony itself—the ceremony itself, as a ceremony of marriage, not satisfying the requirements of English law. That would create an anomaly and would not therefore be an improvement to the Bill. Obviously I am willing to hear what is said, but those are my thoughts.

Amendment No. 5 provides that three types of evidence will suffice to entitle an applicant to obtain a remedy under the Bill. The first is that the agreement is evidenced in writing. In seeking evidence in writing, I am not proposing to require that the agreement itself be in writing, because that would be unlikely in the majority of circumstances. Instead, I am proposing that this written evidence may take a variety of forms including correspondence between parties, newspaper announcements, made with the consent of both parties, invitations to an engagement party, and so forth. I believe that that will offer sufficient flexibility in the sort of evidence of the agreement which can be produced while at the same time greatly assisting the courts in dealing with any potential problems with the definition and proof of that category, which could seriously undermine the new domestic violence jurisdiction.

Secondly, the agreement can be evidenced by an engagement ring given by one party to the other in contemplation of their marriage. Engagement rings are still widely used and offer further evidence that an agreement to marry is in existence. Of course it would be a way of proving that an agreement had been entered into. The Bill does not contemplate the idea that the mere fact that one had an engagement ring from the other would necessarily constitute an agreement to marry, but it is a way in which the court could find that the agreement had been evidenced satisfactorily.

The third means of evidencing an agreement to marry is by a ceremony of betrothal in the presence of witnesses. That is intended to deal with the more formal cases. I had hoped that it might cover the types of case mentioned in relation to at least some of the ethnic minorities where problems might arise. That is a method by which clear proof of an intention to marry could be evidenced. It will assist those groups which hold formal or informal engagement ceremonies. Couples who have terminated their agreement to marry may also apply for remedies under the Bill. However, where the agreement has been terminated for more than three years, they may no longer apply and will need to rely on the general law. That provision is consistent with Section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970.

Amendments Nos. 3 and 4 are intended to achieve a consistency with the general provisions of the existing law. Any violence between the couple is likely to occur within three years of the termination of the agreement. That limitation is also likely to assist the courts with any problems of definition and proof if they do not have to deal with agreements which have been terminated many years previously, where the couple may no longer have any greater nexus than other members of the public.

The amendments I propose will provide a helpful and practical means of addressing the evidential difficulties which may arise in relation to the definition of those who have agreed to marry and will ensure that a remedy is offered to those who have entered into such agreements without undermining the Bill's ability to provide urgent remedies where domestic violence occurs.

I have spoken to the subject matter of the four amendments as well as to Amendment No. 2, because I believe that they all go together. I beg to move Amendment No. 1.

Lord Archer of Sandwell

My Lords, I express my warm appreciation to the noble and learned Lord on the Woolsack for addressing his mind to some of our anxieties and for responding so adequately to what those anxieties were. If I may say so, our proceedings in Committee, under the chairmanship of the noble and learned Lord, Lord Brightman, were the ideal way in which a legislature ought to address the details of its legislation. We heard evidence from those who were capable of giving informative evidence; we addressed our minds to one another's anxieties. Over a very large area, we reached consensus, and where there were differences we clarified them.

The history of the matter has been set out by the noble and learned Lord the Lord Chancellor. In the initial version of the Law Commission's draft Bill, the words referred to by the noble and learned Lord were there. They were left out in the Government's version. On Second Reading some of us asked the reason for that, and the reason was expressed by the noble and learned Lord. He has expressed it again today. I say at once that I found what he said persuasive, but my noble friend Lady David, who very much regrets that she cannot be with us today, having committed herself to be elsewhere before she knew the date of these proceedings, decided that she would like to hear further discussion. She set down an amendment in Committee to restore the words which were in the Law Commission's original draft Bill.

The noble and learned Lord again repeated the reasons for the form of the Bill as it had been originally introduced. The noble Lord, Lord Meston, supported my noble friend, and I think, if I may paraphrase him, expressed the view that perhaps some of the difficulties were a little exaggerated. The noble Lord, Lord Butterworth, expressed his support for the amendment. I said, positively and decisively, that I found it difficult to make up my mind, and the noble Baroness, Lady Darcy, equally decisively, shared my hesitation. That was how the matter left Committee, except that the noble and learned Lord the Lord Chancellor suggested that there might be room here for a compromise in the sense in which he has already described it to the House so that much of our anxiety would be dealt with without opening the field to the very long delays which might emerge from the original Law Commission version.

At that stage, my noble friend Lady David, the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and I went into a huddle. We sought advice in particular from those who were knowledgable about the anxieties of the minority ethnic groups and we tabled the amendment. I wish to acknowledge the great assistance that we received from the noble Lord, Lord Meston, who greatly improved my initial efforts at drafting.

The response of the noble and learned Lord the Lord Chancellor has met all our anxieties, subject to one, and we are grateful for that. I am sure that those whose anxieties we were seeking to express will be grateful too.

As the noble and learned Lord said, the one matter that has not been addressed is the position of those from certain minority ethnic communities who undergo a religious ceremony of marriage which in the view of that community establishes a marriage but is not recognised as such in English law. It is curious if when all they seek to do is to undergo an engagement ceremony they are protected under Clauses 7 and 13. However, sometimes the engagement ceremonies are not public and fall into exactly the category which occasioned the anxieties of the noble and learned Lord the Lord Chancellor. If, instead, they undergo what they see as a marriage ceremony in accordance with the requirements of their religion, and they are perceived by their community as being married and they perceive themselves as being married, normally all that remains is at a suitable time—frequently when various people can be present and when arrangements can be made—to go to a registry office and undergo a ceremony that is recognised in English Law as creating a marriage. But that is not what such couples see as creating the marriage; they consider that they are married at the time that they undergo the original religious ceremony. It would be most curious if they would be protected merely because they considered that they were engaged but they would not be protected if they considered themselves to be married.

I have not had an opportunity to consult the noble Lord, Lord Meston, or the noble Baroness, Lady Darcy (de Knayth), and therefore I can speak only for myself. I would not wish to seek to divide the House today. I express our gratitude for the amendments, which have been tabled as a result of the noble and learned Lord's reaction to our anxieties. I believe that the matter is worth further discussion between us and perhaps at some stage something will emerge which we all find ourselves able to live with.

Amendment No. 2 appears in my name, but that of the noble Lord, Lord Meston, appears above mine. Perhaps I should leave it to him to move the amendment but if the task falls to me I shall be happy to move it for purposes of discussion today. However, I say at once that if it is left to me I shall in due course seek leave to withdraw it.

12.45 p.m.

Lord Meston

My Lords, for the reasons indicated by the noble and learned Lord, Lord Archer, I should be happy to follow that course in relation to Amendment No. 2. I join him in thanking the noble and learned Lord the Lord Chancellor for responding to the amendment tabled in Committee and I pay tribute to the noble and learned Lord, Lord Brightman, for his chairmanship of the Committee.

The amendments return us to the question of where to draw the line between those who can and those who cannot seek relief under the Bill. The Law Commission included those who had agreed to marry and also those who have had a sexual relationship. The Bill excluded them because of the risk of difficulties in definition and proof. The arguments were fully rehearsed in evidence to the Committee and were summarised by the noble Baroness, Lady David, when she moved her amendment.

The provisions will apply only to a small number of people who are not caught in the other categories listed in Clause 2. Only in a small proportion of that small number would there arise the issue of whether the parties were engaged to marry. I suspect that in respect of an even smaller proportion of that small proportion would any time need to be taken in resolving that issue. However, the noble and learned Lord the Lord Chancellor helpfully pointed the way to a possible compromise, hence the tabling of these amendments.

The government amendment appears to be more elaborate than ours. It includes a specific reference to evidence of the agreement to marry being in writing. Frankly, in the real world few agreements to marry are in writing. I doubt whether even the most fastidious member of the Chancery Bar would solemnly record his engagement in writing. I was pleased to hear the noble and learned Lord the Lord Chancellor indicate the wider interpretation to be given to that provision. Of course, in practice the more important evidential requirements will be the existence of a ring or a betrothal ceremony of some kind. Today we have had reference to Bardell v. Pickwick. It remains the fact that Mrs. Bardell, with no ring and no corroboration, would not be covered by the provisions of the Bill. It is such a topical case that I reread it and was reminded that even an early conditional fee agreement was undertaken by Messrs. Dodson and Fogg. Perhaps that will be material for later debate.

The point of difference between our amendment and that tabled by the Government is the inclusion of those who have undergone a ceremony of marriage in the presence of others, whether or not such a ceremony created a valid marriage. I respectfully agree with everything that was said about the provision by the noble and learned Lord, Lord Archer. There are people who are married in the eyes of their own community. They may be married without a betrothal ceremony, so they would be caught by the preceding provision of the amendment.

I have in mind a case in which I was involved concerning an Asian arranged marriage. The 16 year-old bride was tricked into a religious marriage ceremony, which our courts would not have recognised. She then had the strength of character to resist the subsequent arrangements for the civil ceremony and to resist cohabitation with the "husband". Thereafter, he harassed her; in particular he tried to obtain money from her and her family. Such a situation might usefully be covered by the Bill. However, it must be remembered that in some situations there is a gap between the religious ceremony and the subsequent civil ceremony. The amendment would serve the purpose of filling that gap. Of course, there may be other consequences. I suppose that polygamous marriages would then come within the ambit of the Bill. But perhaps it is not too high a price to pay if we extend the provisions of the Bill to polygamists.

It is not my intention to press that difference at this stage but perhaps it should be looked at further before the Bill leaves this House.

Baroness Darcy (de Knayth)

My Lords, perhaps I may give a very warm welcome to these amendments which are the happy result of the ingenuity of the noble and learned Lord the Lord Chancellor and the persistence of the noble Baroness, Lady David, and others. I hope that perhaps, as the noble and learned Lord, Lord Archer, has said, eventually we may be able to include the group that he has just mentioned.

As very much the lay member of the Committee, so brilliantly chaired by my noble and learned friend Lord Brightman, perhaps I may say that I found the whole experience absolutely fascinating. I regret very much that we cannot include all those who have agreed to marry but without any formal agreement and also the other category recommended by the Law Commission and referred to by the noble Lord, Lord Meston; namely, those who have or have had a sexual relationship. However, I understand the difficulty about lack of proof.

I very much hope that we shall soon see the introduction of a new branch of tort which would cover not only those groups but also obsessive stalkers which were referred to frequently in the evidence. Meanwhile, these amendments are extremely welcome.

The Lord Chancellor

My Lords, I am grateful for what has been said in relation to the amendments which I am proposing. As regards the last point made by the noble Baroness, Lady Darcy, perhaps I may emphasise that it was quite clear from the evidence, and in particular from the evidence of the police, that there are problems in the area covered by the Bill, in particular in relation to molestation, where they face quite severe difficulties. One should address the evil in question, the wrong that is going on. It does not matter whether one has agreed to marry or one happens to be a fellow employee. If molestation is taking place, that is what one wishes to prevent. One does not wish the law to be involved in long inquiries about the nature of the relationship when that is irrelevant to the remedy that is being sought.

The committee was cautioned about extending family homes and domestic violence law in a way which unduly distorts it in order to introduce other perhaps deserving cases. The right way to approach those deserving cases is to develop the law for them. Therefore, I very much welcome what the noble Baroness said and I believe that the law is developing in that connection.

I can see the force of the arguments used by the noble and learned Lord, Lord Archer of Sandwell, on the second branch of Amendment No. 2. The difficulty for me so far about the noble and learned Lord's proposals is that it depends on the nature of the invalidity. If people are moving towards what would be a valid marriage in this country, there are fewer difficulties. If one goes into an area where the law, for good public policy reasons, does not recognise the marriage, it is somewhat difficult in principle to recognise the agreement to marry as having any legal effect, although of course it may have practical effects.

The case to which the noble Lord, Lord Meston, referred is somewhat unusual in that there must be a certain amount of doubt about the status of the original agreement to marry and whether or not it was an agreement. Usually in those cases, marriage would be followed by cohabitation and people would be brought within the provisions of the Bill under that heading.

Obviously, there are matters to consider further. I have tried to explain my difficulties. I shall consider further what we should do and I may consult on the matter. In the meantime, I commend the amendment.

On Question, amendment agreed to.

[Amendment No. 2 not moved.]

Clause 7 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:

The Lord Chancellor moved Amendment No. 3:

Page 5, line 31, at end insert: ("( ) Where an agreement to marry is terminated, no application under this section may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").

The noble and learned Lord said: My Lords, I explained this amendment in relation to Amendment No. 1. This puts a time limit on the matter, which I think helps, and is consistent with existing law. I beg to move.

On Question, amendment agreed to.

Clause 13 [Non-molestation orders]:

The Lord Chancellor moved Amendment No. 4:

Page 10, line 41, at end insert: ("( ) Where an agreement to marry is terminated, no application under subsection (2) (a) above may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 5:

After Clause 14, insert the following new clause:

Evidence of agreement to marry

(".—(1) Subject to subsection (2) below, the court shall not make an order under section 7 or 13 of this Act by virtue of section 2(1) (dd) of this Act unless there is produced to it evidence in writing of the existence of the agreement to marry.

(2) Subsection (1) above does not apply where the court is satisfied that the agreement to marry was evidenced by—

  1. (a) the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or
  2. (b) a ceremony of betrothal entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.").

On Question, amendment agreed to.

Clause 17 [Arrest for breach of order]:

The Lord Chancellor moved Amendment No. 6:

Page 12, line 39, at beginning insert ("if the matter is not then disposed of forthwith,").

The noble and learned Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 7, 8 and 12. These amendments represent minor and drafting amendments that have arisen following further consideration of the amendments agreed in Committee. I. am grateful to some of the witnesses who drew some of those matters to our attention, in particular, Judge Fricker.

Amendments Nos. 6 and 7 clarify the powers available to the court when a person is arrested and brought before the court within 24 hours. The Bill as drafted does not exclude the powers of the court to deal with the respondent other than by remanding him or her. However, it has been suggested that the Bill could have been interpreted as meaning that the only power available to the court was the power to remand. None of us wanted that. The amendment therefore ensures that the provision cannot be interpreted as excluding the other powers of the court in dealing with the respondent, particularly the power to hear the contempt proceedings forthwith.

Amendment No. 8 to Clause 19 clarifies the position in relation to the right of a successor in title or trustees affected by a charge under Clause 8 of the Bill to apply for the variation or revocation of orders. Clause 8(1) (b) enables the person deriving the title under the owning spouse to apply for an order under Clause 7 For example, a successor in title of the owning spouse might apply for an order restricting or terminating the matrimonial home rights of the other spouse. If the owning spouse's successor in title was, by virtue of Clause 8(1), the applicant or respondent in the original proceedings, he will be able to apply under Clause 19(1) for the variation or revocation of the order. However, no provision was made for a successor in title or trustees to apply for the variation or revocation of an order made against the owning spouse on the application of the other spouse. The amendment to Clause 19 is intended to permit such an application.

Amendment No. 12 to Clause 30 clarifies the definition of "relevant judicial authority" in relation to a magistrates' court in Clause 30(1). The amendment clarifies that the term "any justice of the peace" is not intended to override the current statutory provisions and rules relating to the constitution of a magistrates' court. As your Lordships will know, there are certain circumstances in which "any justice of the peace" may do so, but we became concerned that if that were used as a definition, it might be thought that we were overriding or overruling the existing provisions stating the constitutions of the court required for various subject matters. Therefore, the amendment refers to a "magistrates' court" instead of "any justice of the peace". That brings into effect the rules which would ordinarily govern the exercise of the jurisdiction. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7:

Page 13, leave out lines 8 and 9 and insert: ("(10) Where a person is brought before a court by virtue of a warrant issued under subsection (9) above and the court does not dispose of the matter forthwith, the court may remand him.").

On Question, amendment agreed to.

Clause 19 [Variation and discharge of orders]:

The Lord Chancellor moved Amendment No. 8:

Page 13, line 43, at end insert: ("( ) Where a spouse's matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse, an order under section 7 of this Act against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 9: After Clause 19, insert the following new clause:

Power of magistrates' court to suspend execution of committal order

(".—(1) Where under section 63(3) of the Magistrates' Courts Act 1980 a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order of committal shall be suspended for such period or on such terms and conditions as it may specify.

(2) In subsection (1) above "a relevant requirement" means—

  1. (a) an occupation order or non-molestation order,
  2. (b) an exclusion requirement included by virtue of section 38A of the Children Act 1989 in an interim care order made under section 38 of that Act, or
  3. (c) an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.").

The noble and learned Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 10 and, in particular, to Amendment No. 11 which is in the name of the noble Lord, Lord Meston. Towards the end of the Committee stage there was a discussion about the powers of various courts to suspend the operation of an order for committal for contempt. The general consensus of the Committee was that, subject to the levels of jurisdiction, the powers of the various courts exercising jurisdiction under the Bill should follow the same pattern and that, if the High Court and the county court had powers to suspend, so too should the magistrates' court.

Some doubt was expressed at the end of the proceedings about the precise basis of the county court's jurisdiction in that connection. I am glad to say that the researches which I instituted came to exactly the same conclusion as the research carried out by the noble Lord, Lord Meston. I am most grateful to the noble Lord. His letter arrived at just about the time we concluded our research. Therefore, we have corroboration that we have found the right answer. I arranged for an amendment to be drafted to give effect to that. The only difference between the two ways of doing it is that, in our amendment, I have done it in the Bill so that the legislation is self-contained. The amendment of the noble Lord, Lord Meston, has proceeded by amending the Magistrates' Courts Act 1980. On the whole, I am keen to try to make it a self-contained code with all the relevant information contained therein. For example, there obviously has to be some reference to the Children Act 1989, but the actual powers are specified. Therefore, I propose to move Amendment No. 9 for that purpose while acknowledging the fact that the amendment of the noble Lord, Lord Meston, would also do the job perfectly well. We happen to have done it this way. For the reasons I have given, I believe that our amendment may be preferable. I shall be glad to hear the noble Lord's view in that respect. I beg to move.

1 p.m.

Lord Meston

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for taking the matter to such a stage. I also express my thanks to the noble Viscount, Lord Colville of Culross, who, although unable to be here today, inspired me to look into the matter in more detail.

As the noble and learned Lord said, the position is quite clear; namely, that the High Court and the county court have power to suspend orders for committal, but, curiously, the magistrates' court does not. That was made clear in a decision of the Divisional Court reported in 1969 and the position has remained the same ever since.

In passing, it should be mentioned that on at least one occasion—in fact, I believe it was more than one—the Children Act advisory committee has, in its annual report, expressed the view that that anomaly should be removed generally. It is suggested that the powers and procedural safeguards as regards the High Court, the county court and the family proceedings courts should be unified. That cannot be completely achieved within the ambit of the Bill now before the House. But the amendments certainly go as far as they can in that direction.

It is perhaps worth pointing out that, in such cases, the courts have traditionally taken the view that imprisonment or committal is a last resort. Indeed, in a recent decision of the Court of Appeal the county court was held to have been wrong in having failed to consider a suspended committal order. If a county court was wrong not to have considered it, it is doubly curious that, as the law stands, a magistrates' court cannot contemplate it even if it wanted to do so.

Having said that, there is one point I should like to draw to the attention of the House. It concerns the differences between my amendment and that moved by the noble and learned Lord the Lord Chancellor. My amendment specifically covers the breach of any undertaking as opposed to just the breach of any order. As I understand it, the Bill very sensibly—and for the first time—enables the magistrates' court to accept an undertaking. Of course, it is trite law that an undertaking to the court is as enforceable as an order of the court. Therefore, I question why the amendment proposed by the noble and learned Lord the Lord Chancellor does not include the possibility of committal or of a suspended committal order when there is a breach of an undertaking which, as I said, is clearly intended to be enforceable under Clause 16 of the Bill as if it were an order of the court. With that slight reservation, I am happy to support the amendment.

The Lord Chancellor

My Lords, perhaps I may deal with the reservation expressed by the noble Lord. It has arisen partly because the Magistrates' Court Act does not confer on those courts the power to deal with the undertaking in the way set out in our amendment. Clause 16(3) as amended by the Committee says: An undertaking given to a court under subsection (1) above shall be enforceable as if it were an order of the court". Therefore, the fundamental jurisdiction applies as if the matter in question was an order of the court. In other words, for all practical purposes of enforcement it makes an undertaking given to the court the equivalent of an order of the court. The amendment is framed on that basis. Therefore, where a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order shall be suspended, and so on. Because of Clause 16(3), the idea is that that should apply equally to undertakings.

I shall obviously need to check the position in view of the fact that the noble Lord has raised the matter. However, I have outlined my understanding of the way the process should work. Subject to that reservation, and as I hear no counter voice in respect of my amendment, I renew my motion to move it.

On Question amendment agreed to.

Clause 20 [Power of magistrates' court to order hospital admission or guardianship]:

The Lord Chancellor moved Amendment No. 10:

Page 14, line 10, leave out from ("requirement"") to end of line 17 and insert ("has the meaning given by section (Power of magistrates' court to suspend execution of committal order) (2) of this Act").

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

On Question, amendment agreed to.

Clause 27 [Magistrates' courts]:

[Amendment No. 11 not moved.]

Clause 30 [Interpretation]:

The Lord Chancellormoved Amendment No. 12:

Page 19, line 38, leave out ("justice of the peace") and insert ("magistrates' court").

On Question, amendment agreed to.

Schedule 3 [Amendments of Children Act 1989]:

Lord Meston moved Amendment No. 13:

Page 24, line 39, after ("living") insert (", or about to live,").

The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 18 which is identical. The amendments would alter the provisions of Section 38A and Section 44A of the Children Act which are both to be inserted by way of the Bill. They refer not simply to another person living in the dwelling house who is able and willing to give the child the care which it would be reasonable to expect a parent to give him, but also to another person living or about to live in the dwelling house.

The purpose of the amendments is to ensure, where appropriate, that the child can remain in the dwelling-house where he has been living, even if the parent or carer is not living there at the time the order is made. It should be possible for another person who is able and willing to care for the child to enter the dwelling-house and to care for the child.

The Bill currently envisages the carer as someone who is presently living with the child. That excludes the possibility of a relation or friend coining to live with the child in the child's home. There will be cases where the child's welfare will be best served by staying in his or her home, close to friends, relations and school. That would mean a relation moving in to care for the child. Such a situation could arise, for example, where the mother of the child has a disability and is living with a man who is a risk to the child. Under the provisions of the Bill the man can be excluded, but as the mother is unable to provide the necessary care alone a relation, perhaps a grandparent, or a friend may move into the dwelling-house to provide care for the child. The child would then remain with its mother in a safe and caring environment. In other words, the amendment would ensure that a responsible adult can move in to preserve the status quo for the child. I beg to move.

The Lord Chancellor

My Lords, as the noble Lord explained, Amendments Nos. 13 and 18 propose that the consent to an exclusion requirement being attached to an interim care and emergency protection order should be extended to include the consent of a person about to live in the dwelling-house as well as one already living there.

The amendments would broaden considerably the categories of persons able to consent to the exclusion requirement, and as drafted could include not only relatives of the child but anyone proposing to enter the home to look after that child. I believe that it would not be right to allow someone not living in the dwelling-house to consent to an exclusion order and, therefore, that the extent of the amendments are too great.

Essentially, it is a question of the person presently providing care. It may be that the intention, as explained by the noble Lord, would be effected by another person coming to live in the house. However, if that person does not do that then it cannot be right to allow consent to an exclusion order to be made by someone who is not already living in the house.

In addition, I am concerned that the policy of the requirement of consent of the current carer of the child could also be defeated if someone else is allowed to consent to the exclusion requirement regardless of the wishes of the current carer. The examples given by the noble Lord, Lord Meston, did not encompass that possibility but, as I understand the amendment, that could happen. Someone not living in the house could give consent when the carer was not prepared to give consent. That would not work at all.

I do not believe that the noble Lord referred specifically to Amendments Nos. 14 and 15.

Lord Meston

My Lords, with the permission of the House, I intended to deal with those amendments separately. They deal with a separate matter.

The Lord Chancellor

My Lords, I am content to do that. That being the case, that completes what I have to say about Amendments Nos. 13 and 18. I believe that they would unduly open up the possibility of consent to exclusion orders by persons who are not necessarily the right people to give consent. Unless the current carer gives consent I do not believe that the provision would work.

Lord Meston

My Lords, I am grateful to the noble and learned Lord for his explanation of why he cannot accept the amendments. I see his point in relation to the drafting. It may be that the matter can be tackled better with some improved drafting. I hope to attempt to achieve that before the Bill leaves the House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.15 p.m.

Lord Meston moved Amendment No. 14:

Page 25, line 10, leave out ("may") and insert ("shall").

The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendment No. 15, which is connected. The purpose of the amendments is to amend the proposed new subsection (5) of Section 38A of the Children Act so that it reads: Where the court makes an interim care order containing an exclusion requirement, the court shall attach a power of arrest to the exclusion requirement, unless the court is satisfied that in all circumstances of the case the applicant or child will be adequately protected without such a power of arrest".

One of the nagging worries I have about this particular provision of the Bill is that, although in the main body of the Bill there are criteria governing when the power of arrest can be considered and imposed by the court, no criteria are laid down under this part of the Bill which introduces this new section of the Children Act. All one can deduce is that it is implicit that the court would probably impose a power of arrest if there was a risk of the person being excluded returning to the home.

The purpose of the amendments is to make the power of arrest mandatory when including an exclusion requirement in an interim care order. Without the amendments the child and the person looking after the child may not be sufficiently protected where the excluded person can return to the home without fear of arrest. That could make it possible for the adult responsible for caring for the child to consent to an exclusion requirement on the ground that they may not be able to protect the child should the excluded party return. In the absence of the power of arrest the local authority would be faced with having to remove the child on an emergency basis if an exclusion requirement were breached. That goes against the intention of the legislation which seeks, in an appropriate case, to remove the alleged perpetrator of the abuse rather than the child.

It is proposed that the same wording be adopted in Schedule 3 as presently exists earlier in the Bill. It leaves the option for the court to include an exclusion requirement without the power of arrest when the court is satisfied that in all the circumstances of the case the child will be adequately protected without the power of arrest. I beg to move.

Lord Archer of Sandwell

My Lords, I rise briefly to indicate that my noble friend Lady David, who unhappily cannot be with us today, very much supports the amendment. Your Lordships may recollect that in Committee it was a question from my noble friend which evoked the answer from Mr. Joel-Esam of the NSPCC to the effect indicated by the noble Lord, Lord Meston.

One can see, and Mr. Joel-Esam himself indicated, that some problems may arise. It is a matter of balance. He recognised that if the power of arrest became mandatory the courts might be reluctant to make the order in the first place. These are matters to which the NSPCC had clearly given attention. On balance it considered that the danger of making an order without a power of arrest, with the consequences indicated by the noble Lord, Lord Meston, was paramount.

All that emerges from the amendments, if they appeal to your Lordships, is that instead of the power of arrest being wholly neutral with the court directing its mind to whether it should add the power of arrest, the normal situation would be that it will exist. The second of the two amendments makes it possible to say that where there is no danger to the child it will still not be mandatory. The onus would be on those who do not wish a power of arrest to be added. In those circumstances, I support the amendment.

The Lord Chancellor

My Lords, this is obviously a difficult matter. This is an option for replacing the interim care order with an exclusion requirement; in other words, taking the person who is seen to be the possible cause out of the home, because it is an interim matter. That is an option that has to be considered. There is a great deal to be said for that course of action if it is a reasonable one. However, it requires the consent of the carer. Therefore all of this has to be taken into account, as regards considering realistic options, when the court is considering the matter.

In her evidence to the Committee, Mrs. Justice Hale, who was the law commissioner responsible, thought that to introduce a mandatory power of arrest here could be too draconian, and it could mean—as the noble and learned Lord, Lord Archer of Sandwell, has said—that the usefulness of the order would be limited as the court might be unwilling to make the order where it might be obliged to attach a power of arrest in these circumstances. Of course there is also the question of the consent of the carer; the carer's consent is required. There might well be a consideration in that connection of whether or not a power of arrest is there.

As regards leaving the matter discretionary, the court would have considerable opportunities to reconsider its position. It would also be possible for the matter to be reviewed. However, I have reached the conclusion—trying to balance all these matters—that I am prepared to believe that the court can be trusted properly to exercise its discretion in an open way in this situation where there are so many aspects of an option that are difficult for us here, or even for the NSPCC with its great experience, to envisage. It is much better that this matter should be considered on an individual case basis.

The inclusion of this requirement in Clause 17 of the Bill in relation to occupation orders and non-molestation orders deals with the situations where the respondent has actually used or threatened violence. This should be distinguished from the situation in relation to exclusion requirements under Schedule 3 where the use or threat of violence may not have occurred. I believe therefore that the best course for this Bill to take is to leave the court with the flexibility to decide whether to attach a power of arrest. I believe that best allows it to deal with the wide range of circumstances with which it is likely to be faced. Therefore, as at present advised, I would not feel able to support Amendments Nos. 14 or 15.

Lord Meston

My Lords, as the noble and learned Lord has just said, this is a matter of balance. The concerns of the NSPCC are obviously worthy of consideration. I, for my part, also wish to stress the point which initially concerned me; namely, that if a statute is to give a right of arrest, the statute should indicate criteria. However, I fully understand and respect the points advanced by the noble and learned Lord the Lord Chancellor. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

The Lord Chancellor moved Amendment No. 16:

Page 25, line 29, leave out from ("authority") to ("period") in line 31 and insert ("have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous").

The noble and learned Lord said: My Lords, this is an amendment that I spoke to with Amendment No. 13. I beg to move.

On Question, amendment agreed to.

Lord Meston moved Amendment No. 17:

Page 26, line 21, after ("child") insert ("usually").

The noble Lord said: My Lords, the purpose of this amendment is to clarify the confusion which might arise where an exclusion order As sought on the basis that a child is presently being accommodated elsewhere under Section 44 of the Children Act 1989. Clearly, if the child is being presently accommodated elsewhere, then he or she is not living in the dwelling house referred to in the provisions of new Section 44A of the Children Act 1989. Nevertheless, the conditions necessary to obtain an exclusion order against the relevant person rely on the relevant person living at the same house as the child. The Bill presumably envisages a situation where the child has been accommodated for a period of time, having left the dwelling house where the relevant person is residing, or visits. On the present drafting it may be argued that the relevant person may not be excluded from the dwelling house as the child is not there at the time of the application. It is for that reason, and that reason only, that I seek to introduce the word "usually" into subsection (2) of the proposed new section in the Children Act. I would hope that the word "usually" adds clarity and would not itself beg too many questions, if and when the matter came to be debated in a court. I beg to move.

The Lord Chancellor

My Lords, this amendment is intended to enable a person to be excluded from a dwelling house in which a child usually lives as opposed to the current wording which refers to where the child lives. In my view the word "lives" is a word that a court would apply as a matter of practical common sense. If the child was there only on a temporary basis it would still be proper to describe the place as where the child lives. On the other hand I do not think one would wish to have some kind of arrangement under which a child who spent more than half the year in one house and the rest of the time in another house was covered by this provision. It is a practical matter and my view is that the words in the Bill are sufficiently precise, and yet sufficiently general in their scope, to allow the court to apply the provision in a practical way. I would not favour, as at present advised, adding the word "usual" to the Bill. Living in a house implies a degree of use of a house, or of "usualness", if that is a correct expression. It implies that to a degree the house is the place where the child usually lives. I suggest that the present wording is reasonably plain and would not be particularly advantaged by adding the word "usual".

Lord Meston

My Lords, this was intended to be a drafting improvement. It has been suggested, however, that perhaps it is not. I hope I do not have to declare an interest if I say that I look forward to arguing the point in court one day. But, subject to that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

The Lord Chancellor moved Amendment No. 19:

Page 27, line 19, leave out from ("applicant") to ("period") in line 21 and insert ("has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous").

The noble and learned Lord said: My Lords, I have spoken to this already with Amendment No. 13. I beg to move.

On Question, amendment agreed to.