§ 3.47 p.m.
My Lords, I beg to move that this Bill be now read a second time.
The Government wish to reinforce parental responsibility and to help lone parents. On 30th October we published a White Paper entitled Children Come First. It explained the Government's proposals for the creation of a child support agency which will assess, collect and enforce child maintenance. The proposals in the White Paper are both radical and innovative. Under them child maintenance will be assessed by a new child support agency on the basis of a formula. The agency will arrange for the collection and the enforcement of child maintenance for lone parents who are on income support and for any other parent who wishes to use the agency's services. The collection and the enforcement services may also extend to the maintenance of a spouse.
However, the child support agency, if it has Parliament's approval, will not be fully operational until the mid-1990s and we cannot ignore until then the problems which lone parents face in collecting and enforcing maintenance for themselves and for their children. That is why we have introduced this Bill today. In the magistrates' courts alone there are about 85,000 enforcement proceedings a year.
Many enforcement proceedings are avoidable, and many of them involve women who are in great distress, both financial and emotional. They often write to the Government pointing out loopholes in the present arrangements for enforcing their maintenance. Perhaps I could give your Lordships an example of what I mean. We have recently had drawn to our attention the case of a woman who obtained an order for maintenance from her ex-husband in May 1989. The order was registered for enforcement in the magistrates' court. Since then, her ex-husband has paid only irregularly, and he has delayed paying arrears for as long as possible.
When default occurs under the present law, the justices' clerk, at the request of the creditor, informs the debtor of the sum of the arrears, requests him to make the payment and, if payment is not made, he issues an enforcement summons. In this case, the man concerned pays off the stated sum of arrears only when he receives a summons. But, by this time, fresh arrears have accumulated, and the process has to be repeated. His maintenance account is therefore always in arrears. The man has simply "played the system". Since May 1989 the justices' clerk has been obliged to send the man five notifications of arrears, to issue five summons and to arrange two hearings which then had to be cancelled because payment was made.
That case well illustrates the fact that the present law provides too many opportunities for maintenance debtors to evade their legal obligations. En some cases, this may be because they are badly organised or 1073 careless. In other cases it may well be that default occurs deliberately, and out of spite. I think—and I hope—that this Bill should go a long way towards closing the loopholes which maintenance debtors can now exploit.
In introducing the Bill, the Government have been guided by two principles: first, that family responsibility should be actively encouraged; and, secondly, that it is much better to avoid default occuring than to take action once it has occurred. To the lone parent, who is receiving maintenance payments, regularity of payment can be as important as the amount which is ordered. As a result of the Bill's proposals, we hope that the consequences of arrears—time-consuming enforcement proceedings and the need in many cases for lone parents to rely on state support—will be reduced.
I am bound to admit that, for a relatively simple purpose, the Bill looks dauntingly hefty. However, I advise your Lordships not to be daunted by it. It appears complicated because the present law on maintenance is complicated and because it is distributed between a number of enactments. In the Bill, Schedule 1 in fact is larger than the actual clauses of the Bill itself, and many of the clauses repeat the same powers but for the purposes of different legislation.
The Bill's key proposals are, however, simple. The Bill will give the High Court, county courts and magistrates' courts in England and Wales new powers when they are making, varying or enforcing a maintenance order. This includes an order which is made under Section 24 of the Social Security Act 1986.
At present, the courts can order that maintenance payments must be paid either to the court or directly to the recipient. The Bill will give the courts two additional powers so that they may order that payments can alternatively be made either by standing order or by attachment of earnings. At present, attachment of earnings orders can only be made if the debtor consents or if he defaults on his payments because of his wilful neglect or culpable default.
Many maintenance orders are made in Scotland, Northern Ireland or outside the United Kingdom's jurisdiction, but such orders may be registered or confirmed in the magistrates' courts in England and Wales. That is because the debtor comes to live in this country. We have, therefore, decided that it is right that magistrates' courts should also have the power to specify the method of payment when they are varying or enforcing these orders.
The Bill provides for the magistrates' courts to have discretion as to the method of payment which is to be ordered. The High Court and the county courts will also have a discretion whether or not to order a particular method of payment. Before exercising any of their powers, courts will be obliged to have regard to any representations which may be made as to the method of payment by the parties concerned.
We think it likely that the courts will, in many cases, make use of these additional new powers to 1074 order payment by standing order. Most people now have a bank or a building society account and the use of standing orders is firmly established. Their virtue in this context is that, once a maintenance debtor has set up a standing order arrangement, then he need take no further action for payments to be made. The recipient is not dependent on the debtor taking a positive step each week or each month to pay the amount required. Standing orders have the capacity to offer the creditor greater assurance and the debtor greater convenience. They will help to reduce the scope for confrontations over money between men and women in circumstances when tensions and emotions may already be high.
Payment by standing order can obviously also be useful where a maintenance debtor is self-employed and where it is not open to the court to order an employer to attach earnings. The courts may not require the debtor to pay by standing order unless he is first given an opportunity to open a bank or a building society account, if he does not already have one. If there is a good reason why he cannot open an account—perhaps because he is refused banking facilities—the court will select some other method of payment.
The method of payment which is chosen by the court may be important. We obviously do not want debtors to be able to ignore a court's order. In the High Court and in the county courts breach of an order can be treated as contempt but the magistrates' courts have no contempt powers. The Bill gives magistrates' courts an explicit sanction which can be imposed on those who fail to comply with the method of payment which is ordered. This is in line with other powers which magistrates' courts have in similar circumstances.
We realise of course that people's circumstances may change. A maintenance creditor, for example, who may initially have wanted payment by standing order may later become unhappy with this method. As changing the method of payment is essentially an administrative act, the Bill allows any interested party to apply in writing to the justices' clerk for payment by standing order to be varied so as to allow payments to be made to the court. The clerk will have a discretion to refer any application to vary the method of payment to the court if he considers that it is inappropriate for him to deal with it. The Bill also gives justices' clerks the power to amend the method of payment when a person no longer claims income support or when he or she reclaims it if an order under Section 24A of the Social Security Act 1986 has been made.
Although the Bill is intended to reduce the scope for default, we also want to take the opportunity to ensure that, if default does occur, the courts are able to deal with it more effectively than they are at present. The majority of maintenance enforcement proceedings are taken in the magistrates' courts. At present, the justices' clerk cannot take proceedings against a defaulter until the creditor has requested that he should do so. This procedure is time-consuming. It encourages the accumulation of arrears, and it gives the wrong impression to the debtor that his 1075 non-payments go unnoticed by the court. In order to prevent that happening, the Bill makes provision for creditors, where payments are made to the court, to give the justices' clerk a standing authority to enforce arrears as soon as they occur.
This is a modest and, I hope, uncontroversial Bill. Its purpose is simply and solely to ensure that maintenance is paid regularly. By so doing, anxiety on the part of parents and spouses will be reduced, valuable court time will be saved, and state benefit payments will be reduced. I commend the Bill to the House. I beg to move.
Moved, That the Bill be now read a second time. —(Earl Ferrers.)
§ 3.58 p.m.
§ Lord Morris of Castle Morris
My Lords, to my infinite relief I am completely underwhelmed and pleasingly undismayed by the weight of the number of representations which I have received from outside bodies on the contents of this Bill. Almost no one seems to object to it root and branch. That is a pleasing state of affairs because on these Benches we welcome the general principles on which it is constructed and support the general thrust of its central recommendations.
As my noble friend Lord Mishcon said in your Lordships' House on 29th October in reply to the Statement on child maintenance:The principles behind the Statement—namely, that fathers, together with mothers who can afford it, should be responsible for the maintenance of their children and that the children come first—are obviously acceptable to the whole House and certainly to the Benches that I represent". [Official Report, 29/10/90; col. 1695.]Of course, the present system of maintenance is imperfect. The noble and learned Lord the Lord Chancellor described it that same day as unnecessarily fragmented and uncertain in its results. It is based largely on discretion and is operated through hundreds of courts and social security offices throughout the United Kingdom. This modest Bill is a useful first step towards achieving greater justice and greater efficiency. We shall do our best to improve it in detail and to better some of its provisions at Committee stage.
I am relieved that the Bill is comparatively modest. There has been too much talk in the media and elsewhere regarding the pursuit of recalcitrant fathers, forcing them to face up to their responsibilities and punishing the miscreants with terrible penalties. I pay tribute to the Government's decision not to impose swingeing punishments on anyone who commits an offence under the Bill. Such people—usually, though not invariably, men—are mostly inadequate and selfishly careless rather than cunning and criminal. Indeed any justice of the peace can attest that the overwhelming majority of those who default on maintenance payments either cannot pay because they have got themselves into an inextricable financial mess or conscientiously oppose what they see as the injustice of the law.
A classic case is that of the man who leaves his wife and children for love of another lady. He willingly 1076 takes responsibility for the support of that lady's existing children as well as any others that he may have with her. He may well lavish care and attention on those children so that he has no money left to provide for his own. He feels that he has done his duty. Unfortunately for him the law takes a very different view. Many of those people need to be taught more than they need to be terrified. The Bill increases the flexibility and sensitivity with which the courts can treat such offenders.
The context into which that must be set is the basic problem of failure to pay. A 1980 survey of divorces in Scotland found that no payment at all was made in one-third of cases. Another study found that 21 per cent. of magistrates' court orders were more than £500 in arrears, and another 10 per cent. more than £2,000 in arrears. Two-thirds of orders were more than seven weeks in arrears and more than one in five were over two years in arrears.
Lone parents and their children, often on extremely low incomes, cannot afford to wait for late maintenance payments. In the event of non-payment courts can order an attachment of earnings, issue a warrant of distress or, as a final resort, order committal to prison. In practice they rarely do. Indeed, courts often waive arrears, sometimes for perfectly understandable reasons. Uncertain maintenance is a choice which lone parents cannot afford and many opt for the certainty of benefit.
The Bill must be judged against that background. We have some reservations and questions. I can outline the most important under two headings: those which concern attachment of earnings orders, and those which concern other methods of payment. Attachment of earnings orders are not always as effective as they may at first appear. Although there exist provisions to prevent default, debtors are often able to evade the effect and the orders by moonlighting. It is often difficult and complex for the courts to take that element of work into account. Proposals in the Bill before us do nothing to counteract that.
On the other side of the coin we should like to see some provision made to protect the privacy of employees who have an attachment of earnings order made against them. It is not a sentimental matter of tender loving care for the bruised psyche of the defaulter; it is a practical observation that if they know their privacy will be protected more debtors will elect to pay by attachment of earnings. Those orders, where they are effective, are an efficient, predictable and reliable way of applying a maintenance order. The Bill may well be a better Bill if a little care and attention can be given to revising the provisions in that area.
Other methods of payment are described in Clause 1(5)(b) and subsequently. The Bill makes a distinction between the powers of the High Court and the county courts and those of the magistrates' courts. In the former the powers are discretionary; in the latter they are mandatory. It has been represented to me that it is not entirely clear why that distinction must be made. 1077 Perhaps it would be wiser to impose a consistent system unless good reasons for doing otherwise can be shown.
There is also doubt as to whether the use of standing orders or direct debits will be effective. To operate a standing order both the debtor and the creditor must have a bank account. Perhaps the debtor does not have a bank account. The Bill has foreseen that and directs that the debtor can be ordered to open a bank account. But that will only help if there is a bank which will accept him, and if the debtor puts money into the account. It may be difficult for somebody with a bad record of debt or other disabling characteristics to find a bank which will accept him. What will happen if he does not put money into the account? Some of your Lordships may know from personal experience that few things in life are more depressing to the human psyche than a bank account with no money in it. It will therefore remain both dismal and easy for a debtor to evade his responsibilities despite the existence of a court order compelling him to open a bank account.
Secondly, the power described in Clause 1(6)(b) to order a debtor to open a bank account has obvious civil liberties implications. It is likely to provoke hostility. There are those—not a few—who will strenuously affirm that it is the inalienable right of every Englishman, or Welshman for that matter, not to open a bank account if he does not wish to. There may be those citizens of this country who, for religious reasons, are conscientiously opposed to our banks and all their works.
Thirdly, and on a related topic, the procedure in a magistrates' court when a method of payment order is varied from a standing order or a direct debit to payments through the court clerk seems not to have within it sufficient opportunity for either party to object. Obviously it would be heavy-handed to hold a hearing over a minor administrative change. But it is important that both sides know about the application and are able to comment. I hope that at a later stage we may be able to propose an amendment to ensure that the clerk must be able to prove that the parties are aware of the application before proceeding with it. I hope that may be helpful.
Which things having been said—if I may conclude with an ablative absolute—we on these Benches welcome the Bill. We will help to steer it safely through your Lordships' House hoping for a calm sea and a following wind.
§ 4.8 p.m.
§ Lord McGregor of Durris
My Lords, this Bill deals with a tiny area of a very large social problem which, although easy to state in broad terms, is exceedingly complicated in detail. A high proportion of marriages collapse de facto and de jure, though failure in one attempt provides only a mild deterrent—at least in statistical terms—against partners trying again either in formal wedlock or in its irregular substitute.
The victims of our by now very well established system of serial polygamy are some 1.5 million 1078 children and their mothers who live permanently or for periods as one-parent families, the majority of them as paupers compelled to live on income supplement. In theory the law imposes an obligation upon husbands and fathers to maintain their wives and children. In practice over the past two-and-a-half centuries it has never been possible to fully enforce it. The reality was that the Victorian poor law, the National Assistance Board, the Supplementary Benefits Commission, or now income support, actually provided the subsistence which was ordered by the courts but which was unpaid or paid irregularly by husbands and fathers having only one income to support two families.
By 1980 maintenance orders were producing no more than 12 per cent. of the income of divorced and separated women on supplementary benefit, the commission providing the remainder. Moreover, even if the orders had been paid regularly and in full, recipients would still have been on supplementary benefit as the orders were invariably for amounts less, and often substantially less, than their entitlements to minimum rates of benefit. Thus, receipts from court orders were marginal and payments of supplementary benefit were the chief elements in the incomes of such women. That is why one of the main recommendations of the last departmental committee to report on the subject —the Finer Committee on One-Parent Families in 1974—was the establishment of a family court, one main function of which would be to bring the private law of family maintenance into a realistic relationship with the public law of social security.
A further complication is that in England three separate systems of family law have developed over the past two and a half centuries and all three were largely intact 20 years ago. One system made provision for those who could afford access or who could obtain it through legal aid to a superior court of record with a jurisdiction to issue licences to marry again. Another gave a restrictive jurisdiction to magistrates to make summary orders to deal with the family problems of people who for cultural, social or financial reasons did not or could not utilise the superior court. The third system of family law had been embodied in the poor law and taken over after 1948 by the new National Assistance Board and its successors.
The principle of widows' pensions enacted in 1925 has never been extended to the other groups of unsupported wives or mothers who still retain both their legal right to maintenance from husbands and fathers and to assistance from the social security authorities. Accordingly, we still retain different tiers of courts with overlapping jurisdictions and different methods and machinery for collecting and enforcing maintenance. For example, the magistrates' courts alone possess a court collecting office. The normal practice is for maintenance orders of the superior courts to be registered for enforcement in the summary courts, the chief business of which remains petty crime. Again, that is why the Finer Committee recommended that what had been family laws for 1079 different social classes should be brought together in a single unified family law for the whole community, administered in a family court.
The very limited provisions of this Bill—one can see how limited they are both against that background and against the recommendations of the Finer Committee, which examined the whole area in great detail—are worth while as far as they go. They are supported from these Benches in much the same terms as they were supported by the noble Lord, Lord Morris of Castle Morris. Nevertheless, I should make clear that we shall be making many serious and severe criticisms of the White Paper and of the proposed children support agency. However, in terms of the detail of the Bill, it is useful that attachment orders can be made immediately without waiting for default, though it is necessary to recall that from the very beginning when attachment orders were introduced in, I believe, 1958, the promise has always been far greater than the actual performance in producing money.
Secondly, it must be remembered that the main enforcement agency, the magistrates' courts, are very short of resources even for the maintenance orders of superior courts. They are short of staff. They can no longer, as in the old days, use their warrant officers to follow up recalcitrant husbands of fathers. For example, I understand that the police now refuse to put maintenance warrants on their computer, so it is very difficult for courts to follow up the men concerned. There are similar difficulties in serving papers. I am told that very rarely a legal aid certificate may be extended to cover the costs of a professions process server, but that is by no means a widespread practice. I understand that the magistrates' courts have great difficulty in serving papers.
The results of all that is that it becomes an extremely time-consuming and difficult business for a woman, even with the willing assistance of the court, to pursue her maintenance effectively. I am surprised that the Minister, in outlining the Bill's proposals, which he did with great clarity, failed to suggest that the Government would provide additional resources to the summary courts to enable them to fulfil the further functions envisaged by the Bill.
Two questions are often asked about maintenance proceedings, either when negotiations are taking place or after an order has been made. First, people want to know whether the payments can be index-linked to protect them against inflation and to save the costs and upsets of future proceedings to vary the order. Index-linked maintenance orders were at one time thought not to be possible because the Inland Revenue would give tax relief only on payments of a "sum certain". Now that maintenance payments have no significant tax consequences following the Finance Act 1988, it is to be hoped that there will be no impediment to having index-linked orders. It would certainly be a welcome development if the Minister could offer the hope of government support for such a development.
Secondly, it is often asked whether the payments can be made by standing order or by attachment. 1080 Until now the answer had to be that a standing order cannot be imposed but can only be set up if the payer agrees. Furthermore, such an agreement can only be enforceable if the obligation is made a formal undertaking to the court. Reasonable payers tend to agree to set up standing orders without causing any problems. It is the difficult, disorganised and recalcitrant who can be brought into line by the provisions of this Bill. A standing order or a deduction from pay gives the recipient greater certainty that the money will arrive and no time. It gives the payer a good evidential record with which to meet any claim that payments have not been made or to settle any dispute about the quantum of arrears.
Obligatory payment by standing order will improve the position of those whose spouses like to use personal delivery of the weekly or monthly maintenance cheque or cash as an opportunity for a good row. Against that, if a payment which is supposed to be made by standing order is not made, either because the payer cancels the instruction to the bank or because the payer's bank will not make the payment on the grounds that an overdraft limit has been reached, the recipient may not know until up to a month has clasped and her next bank statement arrives. Meanwhile she may unwittingly get into debt with her own bank meeting payments expected to be covered by the standing order.
There are three improvements which I hope that the Minister will be willing to consider on the procedural level of the Bill. The first is to give powers to judges and registrars to make any order for enforcement that is in the court's power whenever the debtor is required to attend for examination of his means and wilful default is found. In that way accounts and assets could immediately be frozen by injunction or charged to make it more, difficult for liabilities to be evaded.
Secondly, I hope that the Minister will be able to consider the removal of the anomalous unavailability of legal aid to issue a county court judgment summons. That is perpetuated in the Legal Aid Act 1988. Thirdly, it would be very helpful if the Inland Revenue could be obliged to adjust tax codings of those in default as a means of getting maintenance deducted. I ask the Minister whether the Government would be willing to require the Inland Revenue to reconsider its refusal to date to co-operate in that way in the enforcement of maintenance.
From these Benches we welcome the Bill but regard it as containing no more than very minor improvements. We shall wish to make far-reaching criticisms of the wider proposals which we shall be debating when the Bill based on the White Paper comes before the House.
§ 4.24 p.m.
§ Lord Simon of Glaisdale
My Lords, like others of your Lordships, I am grateful to the noble Earl for his clear explanation of the Bill. I am also very privileged to follows the noble Lord, Lord McGregor, the leading sociologist in this branch of social pathology, policy and law. The noble Lord was part author of the statistical study of separated wives which was seminal.
1081 He was a leading member of the Finer Committee on one-parent families which has been referred to. The early death of Mr. Justice Finer was a great loss. It is a solace to have his lieutenant, the noble Lord, Lord McGregor, to carry on and explain the policy.
The Bill is a side shoot—marginal perhaps—of the White Paper, to which the noble Earl referred, called Children Come First. But we are bound to ask ourselves: do we really mean that? Today, one-third of marriages end in divorce. That is double the figure of 20 years ago and double the figure since the passing of the deplorable Divorce Reform Act 1969. The number of divorces is rising. Of the one-third of marriages which end in divorce half of them concern children under the age of 16. If society is facilitating the break-up of such marriages, is it really putting children first? There can be no question that we have facilitated, even encouraged, people to rush for divorce which, as the noble Lord, Lord McGregor, aptly said, is a licence to remarry.
The first question is this: where do we place the institution of marriage in our policies and priorities? On that there is a very large consensus. It is true that there is, and always has been, an extreme radical wing which looks askance on marriage as an institution. It has lately had a very able exposition in the first document produced by the Institute for Public Policy Research which has the advantage of being chaired by the noble Baroness, Lady Blackstone.
Undoubtedly the authors of that paper, quite consonantly with the tradition for which they stand, are by no means enamoured of the family as an institution; neither the nuclear family, which is father, mother and children, nor the extended family which we do not have in our law. Other systems of law have it although we have it as a matter of social fact in some grades of society. On the whole there is a consensus that the family is a valuable institution and that it is the best way of rearing future citizens. It is at best a nursery of love. Are we really doing what we can to buttress the family as an institution? The Law Commission's proposals are quite inadequate if that is the objective: in fact, they are nugatory. What are we doing to help the subsistence of marriage where the children are under 16?
One simple way would be to stipulate that there shall be no divorce where there is a child under 16. If one takes the secular view of marriage and divorce, that seems perfectly sensible when coupled, as it should be in the secular view, with divorce by consent—immediate consent—if the children are over 16. I say expressly "the secular view" because people who regard marriage as a sacrament or, as the Church of England holds, in the nature of a sacrament, will not countenance divorce by consent, although in fact the Church of England did so in supporting the 1969 Act.
Ought we not to recognise the conscientious feelings of those who regard marriage as a sacrament or as being in the nature of a sacrament by allowing them to stipulate before marriage that it is a marriage that shall not be dissolved? Certainly one would have to have judicial separation, but there would be no 1082 divorce if the parties agreed that there should be no divorce. When that idea was floated during the passage of the 1969 Act the proponents of the Act objected that it would be instituting two classes of marriage—a first class and a second class. But what a confession it is that the marriage which is undissolvable and indissoluble is a first class marriage but the marriage which is easily dissoluble, as under the 1969 Act, is a second class marriage. That is obviously a matter which we shall have to consider.
It is only after one has worked out what should be the policy there that one comes to deal with the pathology of marriage break down and the separation of parties. At the moment, as the noble Earl pointed out clearly and as was reinforced by what was said by the noble Lords, Lord Morris and Lord McGregor, the enforcement of remedies in that situation is most unsatisfactory.
Finally, I should like to take up what was said by the noble Lord, Lord McGregor, regarding the recommendations of the Finer Committee. I refer to the question of family courts. On the Commons consideration of the Courts and Legal Services Bill I certainly understood my noble and learned friend the Lord Chancellor to say categorically that what was proposed in the Bill would lead to a system of family courts. If so, the White Paper and this Bill is a retrograde step. The noble Earl mentioned the proliferation of courts. The noble Lord, Lord Morris, used the word "fragmentary". At the very least we have the High Court and all the multifarious magistrates' courts. They will continue and are given new powers. Why was not their jurisdiction centred in a family court as recommended by the Finer Committee?
The same point applies to the social side. One finds in the White Paper the proposal to set up a new agency for enforcement and the collection of maintenance. Why do we need one? All the information is at the moment in the hands of the Department of Social Security. If we need a new agency, why is it not the welfare wing of the family court? Opinion has been running strongly in favour of a system of family courts each having a welfare department and an adjudicatory department in the same way as the Conseil D'etat in France in a different context has its administrative wing and its judicial wing. Matters would go for adjudication only if they could not be settled by the administrative, social and welfare sides of the family court.
Although many of the provisions of the Bill are undoubtedly an improvement and are to be welcomed in that way as making maintenance more easily enforceable. I am bound to express my grave disappointment that the main thrust of the Bill has been away from what my noble and learned friend the Lord Chancellor seemed to promise and what so many of us have been seeking for so long.
§ 4.36 p.m.
§ Baroness Faithfull
My Lords, I join other noble Lords in thanking my noble friend the Minister for explaining the Bill to us. It is consistent with the 1083 Children Act 1989 which stated that the welfare of the child is paramount and emphasised the responsibility of parents. I wholeheartedly support the intention behind the Bill. However, like the noble and learned Lord, Lord Simon of Glaisdale, I question the way in which the Bill will be implemented. I cannot see it being implemented well in its present form.
A single parent bringing up children faces difficult problems. If maintenance to the lone parent ordered by the court is not forthcoming, the plight of the parent is even worse. If the lone parent has to go to court to seek help and legal aid to make her husband, or wife as the case may be, pay the maintenance which the court has ordered, the burden is almost intolerable.
I should like my noble friend to explain some of the provisions of the Bill. I have had a great deal to do with parents in respect of whom the court has made an attachment of earnings order. Has my noble friend facts and figures to show that this is a successful way of obtaining maintenance? My experience is that it is not. Not only is it not a suitable way of obtaining help for the lone parent without maintenance; it is almost counter-productive. If an attachment of earnings order is made, the man, even if in a good job, will leave his job as soon as he possibly can. If he is then pursued by the Inland Revenue he will move again. If he is further pursued he will move out of the town in which he lives. We need to be sure whether the attachment of earnings order procedure is working now. I find from my experience of dealing with such cases that it is not. Are we wise to pursue this line?
With regard to the next section of the Bill, I feel that I must ask the same question as that put forward by the noble Lords, Lord Morris and Lord McGregor. Why is there a distinction between the powers of the High Court and the county court, which are discretionary, and those of the magistrates' courts, which are mandatory? My understanding of the matter is not clear. Perhaps my noble friend will be kind enough to explain it to me.
I turn now to the question of a debtor having to open a bank account. I wonder whether this provision is practicable. Problems may arise where a debtor is not able to open a bank account because the bank refuses the application. In such a situation, under Clause 2(4)(b) of the Bill the debtor would not have failed to open the account "without reasonable excuse". Therefore, the court could not order a debtor to open an account. In any event, even if that were to be the case, he may not have the money; I cannot imagine any bank accepting such a person.
I have some experience of this. A young man I knew called Roger wanted to open a bank account. I took him to the bank. He had been in care and did not know how to open a bank account. The bank manager was very pleased to have another customer. However, he asked me whether I would sign the form confirming that the young man was a suitable person. I was bound to ask Roger "Do you think you are a suitable person because you know you steal and tell lies?" At that point the bank manager said that he could not allow him to open a bank account. How could such a 1084 situation be possible? Therefore, while I agree with the intentions behind the Bill, I do not believe that the way in which it is to be implemented is either practicable or possible.
I should now like to pursue the recommendations made by the noble and learned Lord, Lord Simon of Glaisdale. First, I believe that if we had family courts as recommended by the noble and learned Lord the Lord Chancellor we should be going a long way towards solving the problem. Secondly, the divorce Bill—which has not been put before the House and was not mentioned in the Queen's Speech—recommends that a couple who want to divorce must initially register the fact that they wish to do so. There must then be a period of conciliation during which the conciliation service and the probation service could help the couple; but the divorce would not be granted until the maintenance of the children and the spouse and the question of access were settled. If that Bill is introduced, we shall at least go some way towards achieving the recommendations made by the noble and learned Lord, Lord Simon of Glaisdale.
In my view, we must start at an earlier stage to help divorcing parents. We should not issue a maintenance order until both parents have worked out between themselves, or with the help of a conciliator, what the agreements will be. If that process were to be followed, we would reduce the need for so much court procedure. As I have already said, I support the intentions behind the Bill but I regret to say that I do not support the manner in which it is to be implemented.
§ 4.44 p.m.
§ Baroness Macleod of Borve
My Lords, if I had known that the noble and learned Lord, Lord Simon of Glaisdale, was going to give us the benefit of his usual wisdom this afternoon I should have withdrawn my name from the speakers list. I agree with everything he said. In common with my noble friend Lady Faithfull, I must say that we as women are most grateful that so many of your Lordships, being of the other sex, take such an interest in the welfare of women who are perhaps left without, as they seem to think, enough money.
I have carried out a great deal of research among people as well as among organisations. I have come to the conclusion —which I do not expect to be popular with anyone—that these men are having a very raw deal at this time. We seem to be pursuing them for something which they probably do not have. They may refuse to pay for reasons which are not given to us or to the court. They may indeed be family reasons. In most cases they are being asked to leave the matrimonial home and the children to whom they are as devoted as the mothers. The result is that very often they are under a terrible emotional strain. They may be sacked from their jobs and they have no home. Moreover, they do not even have their children, to whom, as I said, they are devoted. They are often to be found on our streets. It is a very sad state of affairs and if on top of all that they are to be hounded for 1085 maintenance they will go into hiding. I agree with the noble Earl, who I think said that such men can always be found via the computer, presumably at Newcastle.
Who are these men? They are husbands who leave their wives; they are fathers who leave their wives and their children; and they are men who leave their girlfriends and the children whom they have fathered. It has always seemed to me that the break-up of a relationship—not necessarily a marriage but people living together—is two-sided. It is split 50:50. It is very rare that one can say categorically that it was either his or her fault. Therefore, I have come to the conclusion that both sides are usually equally to blame. However, where there are children—and we have all decided that children are paramount—they are the ones who are hurt. Whatever anyone says or tries to do, the children in such a situation are desperately hurt.
I turn now to the reasons for the failure to pay. One of the oganisations with which I have been in touch maintains that this is the reason behind the failure to pay. A man may be willing to pay but, despite the fact that the learned judge who granted the divorce had told him, "You may have access," the mother refuses to grant access and throws him out every time he appears. He may then say, "Why should I give this woman to whom I used to be married"—or with whom he used to live—"money when I am not allowed to see my will pay?" I am assured that that is the reason for the failure to pay. That is the issue to which we should be addressing our attention and not how we can retrieve the money. We must concentrate upon why these men do not want to pay.
I can assure noble Lords that the men to whom I have talked —they represent quite a large body of people—are very willing to pay. On the whole they can pay. However, if they are unable to see their children they say, "Why should I pay?" That is an issue which we are not able to address within the scope of this Bill. We are dealing merely with how to obtain money from someone who has been ordered to pay but who will not do so. I entirely agree with the argument adequately put forward by my noble friend Lady Faithfull that it is quite absurd to put in a Bill the requirement that a man must open a bank account.
I also believe that the attachment of earnings order, which I used to make quite frequently when I dealt with such cases, is impractical. I say that because, although the man may ask his employer to help him in respect of such an order, there is a stigma attached to it. Those working in the office of the employer are bound to know that the man is in trouble and is not paying the money due to his former partner. Then, as my noble friend said, the man leaves his job and is unemployed. The state then has to pay not just him but the woman with whom he lived.
I appreciate that this is a difficult social problem. I agree with the principle that preferably both parents should always be financially responsible for the children, but when it is impossible to make the man pay I am afraid that the state, as it has done for a long time, has to pick up the bill. I do not know what we 1086 shall do with the Bill. I do not like it. It is far too long. It repeats itself over and over again. I shall be interested to see what my noble friend the Minister makes of it in Committee. I expect that we shall all table a number of amendments.
§ 4.51 p.m.
§ Baroness Phillips
My Lords, I did not have my name down to speak but I cannot fail to support all that the noble Baroness, Lady Macleod, said. Like her, I have always been a great supporter of the cause of my sex. I have always supported sex discrimination laws and the equality for which we have fought. Like the noble Baroness, I have all too frequently met cases similar to those she described. There has been a strange turn of events. All too often now the man suffers because the woman appears to get the best of the argument. Sadly we all know cases within our own families. As I said one day, I do not need to watch "Dallas"; I could write the script from my own family.
There is no doubt that some way must be found to deal in the Bill with the circumstances described by the noble Baroness. The matter is no longer black and white. When I sat in court we frequently made attachment of earnings orders. The trade unions found the men who were forced to pay. The climate has changed. We no longer have the simple obligation of marriage or non-marriage. People live together voluntarily. It must be a two-party thing. I hope that during the course of the Bill's passage we can table some amendments to take account of the circumstances so eloquently described by the noble Baroness.
§ 4.53 p.m.
My Lords, perhaps I may apologise to the Minister for entering the debate rather late and unannounced. I pay tribute to my noble friend Lady Phillips and the noble Baronesses, Lady Faithfull and Lady Macleod, for their contributions. They revealed a depth and breadth of understanding of the problems that unfortunately was not apparent from previous speakers. We must recognise that the problem is far more difficult than just finding a financial resolution or an easy, quick fix by the courts.
I want to concentrate on two aspects of the Bill. The first relates to its general thrust. The second relates to one minor detail, although when I come to it your Lordships will appreciate that it can be a significant detail. I am concerned that we have the Bill at all. I am afraid that it reflects the Government's philosophy and attitude to the situation that faces our society—the break-up of marriages and the results. We are doing things the wrong way round. We are saying, "Here is a Bill, which will become an Act, which will constrain and enforce, effectively, a contract that was not mutually agreed between the parties." That is one of the biggest problems with the concept of enforcement of maintenance payments. It is not as though there is a contract between two parties mutually entered into. It is a one-sided affair. The courts will be taking a view of a situation and imposing their reaction to it.
1087 The implication is that it is all very well to have children so long as you can pay for them. That draws a distinction between well-off members of our society and poor members of our society. In this day and age that is not a distinction that we can allow to continue. One or two previous speakers alluded to the fact that people often separate because one party is excluded from the home, the affections of the partner, and the ability to relate and live with their children. That is the partner whom we penalise. It is perceived to be unfair.
I do not say that the Bill is against men only or women only. One or two speakers tended to say that it is all to do with getting money out of men. That is not the situation that we face. At the moment we are already faced with the enforcement of maintenance payments against women. Heaven forbid that it should come about that my wife and I separate. However, my wife earns more than I do, and if she decided to leave and I was looking after the children I should be expected to demand money from her. We are not talking just about men.
So much for the generalities. I shall mention one detail. One of the things that has come about over the past few years is the increase in the use of direct debits in place of standing orders. With a standing order, a set amount passes from one bank account to another at a set time. It continues. On the other hand, a direct debit relates to where money is paid from one bank account into another but the amount is not determined by the person paying. It is determined by the other party, who effectively says to one's bank, "Please pay us this amount". The other party is free to vary the amount.
I recently had a dispute with BT because it has stopped accepting standing orders and will accept a direct debit only for regular payments. I refuse to pay on that basis. I and no one else shall be the person to determine what is paid out of my bank account. That is only reasonable. The Bill's Explanatory and Financial Memorandum states:by standing order or some similar method".I make a plea that we ensure that in the Bill we do not give the courts power to demand direct debit payments because that would only compound the non-payment problem.
Perhaps I may give your Lordships two examples of the situation that can result from divorce and the payment of maintenance. One example is where a man was effectively excluded from his household. He loved his wife and children. He wanted to contribute to their maintenance, and he did so as long as he stayed in employment. But the very fact of separation virtually destroyed his ability to work. He lost his job and became virtually destitute. However, whenever he has any money he contributes because he still loves his family. It is an incredible situation.
There is another example about which I know. I met someone recently who, for the last 20 years, has lived in the black economy solely to prevent any earnings which he may receive being paid to his wife because of the circumstances of his separation. Surely 1088 this whole Bill is a complete waste of paper in those two situations, because we are discussing this area of social difficulty in completely the wrong way.
§ 5.1 p.m.
My Lords, I am grateful to your Lordships for the welcome in general that you have given to the Bill and for the debate that we have had upon it. It has shown your Lordships' care and concern about what to do when marriages break down. I was glad that the noble and learned Lord, Lord Simon of Glaisdale, paid such a tribute to the noble Lord, Lord McGregor of Durris, for what he said and for his knowledge of these matters, which is of course considerable.
The noble Lord, Lord McGregor of Durris, welcomed the Bill. He said that it was a modest Bill, and it is a modest Bill. We never claimed that it was anything more than that. But we thought that it sought to meet a certain area of difficulty, and that is what we have done. I was grateful to the noble Lord, Lord Morris of Castle Morris, for saying that he would help this Bill through the House with a calm sea and a following wind, which I think is a nice nautical expression for which we are most grateful.
I was even grateful to my noble friend Lady Faithfull who said that she supported the Bill for what it intended but not for the way in which it did it. I am bound to say that if the Government ever produced a Bill with which my noble friend was wholly content, I think that I should be tempted to adjourn the House not during pleasure but with pleasure.
The noble and learned Lord, Lord Simon of Glaisdale, said that a third of marriages end in divorce, which is double what it was 20 years ago. It is as well to remember those rather horrifying facts. He said that it is sometimes necessary to consider where we place the institution of marriage in our lives, and that the family is a good institution and a nursery of love. Few of us would think that the institution of marriage was anything other than highly commendable and highly desirable, but the sad part is that somehow the pressures of modern life seem designed to try to break it up.
When marriages break up they cause troubles, sorrows and endless sadnesses. It think it was the noble Baroness, Lady Phillips, who said that sometimes people nowadays live together without being married. It seems the easy option. It seems the convenient thing for people to do. I merely suggest that it seldom results in real happiness, and when things go wrong it is inevitably the children who suffer as well as everyone else.
The sad part again is that like all matters which are fairly far apart there is a slender dividing line: goodness is quite close to badness; kindness is quite close to unkindness; love is quite close to hatred, although they are opposites. It is sad when people can marry and love each other that when they get divorced their love can almost turn to hatred to such a degree that, as the noble Lord, Lord Monks well, said one person can be prepared to make all his earnings on the black economy for the simple reason that he did not 1089 want his ex-wife to have any of his earnings. Of course I do not think that we shall ever get over that problem, but it re-emphasises the fact that we should do all that we can in our various spheres of life to try to bolster up the cause of marriage, and try to encourage it rather than subject it so frequently to such risk and sorrow.
In this Bill we have tried to address one area where we think it could give a little more happiness and a little more contentment. I think it was the noble Baroness, Lady Phillips, who said that the Bill was repetitive—no, I am sorry, it was my noble friend Lady Macleod of Borve. Of course she is quite right. On the face of it it appears repetitive but that is because it addresses a number of matters of a similar nature and they all have to be addressed individually. Therefore, while my noble friend may feel keen to put down a lot of amendments to make the Bill simpler, I hope that she will be hesitant about putting down too many because I doubt whether she will find that it will be all that easy to make it that much simpler.
The noble Lord, Lord Morris of Castle Morris, was concerned about the discretion in the High Court and the county courts. The noble Lord is correct that the approach in the Bill differs as regards the High Court and the county courts and as regards the magistrates' courts. The reason is that the magistrates' courts' powers are contained entirely in statute whereas the higher courts have both statutory and common law powers. The intention is to give the courts new powers without interfering with existing powers. The most convenient way of achieving this has been adopted in drafting the Bill in its present form.
The noble Lord, Lord McGregor of Durris, was concerned about maintenance law and the family courts. The law of maintenance and related issues of jurisdiction are part of my noble and learned friend the Lord Chancellor's review of the family justice system. My noble and learned friend's department is engaged in a wide-ranging review of family law and procedure, with the objective of creating in stages a single family justice system applying a single body of substantive law.
The aims are to ensure that the interests of children are given priority; that the personal responsibility of parents for their family is emphasised; that the system for hearing and deciding family cases is improved and rationalised, making the most effective use of existing court and judicial resources, matching cases to the most appropriate level of court; and removing from the courts functions that could more effectively be dealt with elsewhere.
On the magistrates' courts' resources, about which the noble Lord, Lord McGregor, was concerned, I would only say that it is accepted that enforcement proceedings can be difficult and time consuming, and can be a drain on the courts' resources. It is for this reason that the Bill's proposals should be helpful in preventing default in the first place, and the creation of the child support agency will relieve the courts of 1090 enforcement work. Instead there will be a specialist and dedicated new body to do that in place of the courts.
The noble Lord also referred to the Inland Revenue, and asked whether it was possible to adjust the defaulter's tax coding. It is not within the scope of this particular Bill to do that. Indeed, the entire system for reassessing and collecting child maintenance will be reformed by the "children come first" proposals. However, I would agree, without commitment, to give further thought to this matter in consultation with other departments. I shall try to discover whether the Inland Revenue can assist in the matter of maintenance schemes.
The noble Lord also referred to index linking. The White Paper on child support proposes that child maintenance awards under the proposed formula would be reassessed each year and would make index linking unnecessary. Orders for spousal maintenance will not be covered by this formula. However, index linking is not without its difficulties and while it will be borne in mind by the Government as they develop their policy in this field, I cannot commit the Government to any particular line on this matter at present.
The noble and learned Lord, Lord Simon of Glaisdale, referred to family courts. My noble and learned friend the Lord Chancellor did not give an undertaking to create family courts. However, the Government have embarked upon a review of substantive family law and related issues of jurisdiction and procedure. They will be informed by the need to rationalise the use of existing courts and resources and to match cases to the level of court or judge according to the weight and complexity of the cases. Although the review aims to create a rationalised family justice system, that does not mean that it will lead to what the noble and learned Lord has described as family courts.
My noble friend Lady Faithfull referred to the usefulness of attachment of earnings orders. There are of course circumstances where attachment of earnings orders will not work. However, I believe that frequently they are successful. The purpose of the Bill is merely to make such orders available in circumstances where they are not available at present, thereby increasing the flexibility of the courts' powers. It will of course be for the courts to decide whether to impose such an order in the circumstances of any particular case. My noble friend was also concerned about divorce and conciliation. Divorce reforms are part of the review of family law by my noble and learned friend the Lord Chancellor, as is the connected issue of conciliation. The Government are considering the Law Commissioners' report on divorce. They welcome that as a useful contribution to the debate on this important matter. The Government wish to hear views from all interested quarters on the commissioners' proposals. However, it would be premature for us to reach any conclusions on the future of divorce now.
My noble friend was also concerned about the power to require a bank account to be opened. The 1091 power is clearly not relevant to cases where a person is refused facilities by a bank. The Bill contains safeguards for the debtor. The power is needed to prevent someone who has an account in good order from closing it in order to frustrate a court's maintenance order. We do not expect the power to be used often but it is a useful deterrent. The argument that the debtor may not have any money is not a good one. The maintenance order will reflect his financial circumstances. The Bill is about the methods of payment and not about how much should be paid.
Noble Lords made a number of other points and I am most grateful for them. I noticed that the noble Lord, Lord McGregor of Durris, remarked that most of his criticisms were of the White Paper. I am glad to know that because I hope it means that the majority of his criticisms will not be deflected onto this Bill and that he will help to give it an easy passage. I am grateful to noble Lords for having given the Bill such a welcome.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.