COMMONS AMENDMENT (Hansard, 2 November 2004)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 79.

The amendment is designed to deal with concern that the provisions of the Family Law Act 1996 on undertakings are unclear about a court's power to issue an arrest warrant if an undertaking is breached. Under Section 46 of the Family Law Act, the court may accept an undertaking from the parties to the proceedings, instead of making a non-molestation order or occupation order. No power of arrest may be attached to an undertaking, and we are not proposing to make breach of an undertaking a criminal offence.

The concern is that the 1996 Act is unclear about whether the court has the power to issue an arrest warrant following the breach of an undertaking. That is because, although the 1996 Act makes it clear that an undertaking is enforceable as if it were an order of the court under Section 46(4) of the Act, the court has not made a relevant order for the purposes of Section 47(8), which deals with arrests for breaches. There is a concern, in practice, that some courts are not issuing warrants in such cases because they believe that the legislation is unclear. We believe that it is right that if an undertaking given to the court is breached, the person breaching the order should be punishable by the court for contempt. That was the intention in the original legislation.

The amendment means that the law will be clarified so that undertakings will become enforceable as if the court had made an occupation or non-molestation order in terms corresponding to those of the undertaking, thus making it clear that an arrest warrant can be issued.