§ 3.37 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that this Bill be now read a second time.
The Family Homes and Domestic Violence Bill is an important part of my ongoing programme for family law reform. This Bill makes provision for the reform of the various discretionary remedies which exist in family law in order to deal with two distinct, but inseparable problems: providing protection for one member of a family against molestation or violence by another and regulating the occupation of the family home where the relationship has broken down, whether temporarily or permanently. The Bill provides for a single consistent set of remedies—"non-molestation orders" and "occupation orders"—which will be available in all courts having jurisdiction in family matters.
In past times consideration of domestic violence was often marginal, even though any sort of violence in the home can have a devastating effect on family life. I am concerned to ensure that the civil law in this area gives as much support as possible to the victims of domestic violence, in partnership with the criminal law.
The present Bill is the result of recommendations made in the Law Commission Report entitled Domestic Violence and Occupation of the Family Home (Law Corn. No. 207) which was published in May 1992. The report was widely welcomed. The Bill gives effect to almost all of its recommendations. In addition, the Home Affairs Select Committee published a report on domestic violence in March 1993 which generally supported the Law Commission's proposals.
It is clear that the current statutory framework in this area is unsatisfactory. Past enactments have dealt with particular situations or strengthened the powers of specified courts. That has led to criticisms that the 1255 current system is piecemeal, complex and confusing, with different categories of applicant having to apply to different courts for different remedies, whether under the Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates' Courts Act 1978 or the Matrimonial Homes Act 1983.
The Law Commission saw the aims of this Bill as threefold. The first was to remove the gaps, anomalies and inconsistencies in the existing remedies, with a view to synthesising them, so far as possible, into a clear, simple and comprehensive code. Secondly, it thought it obviously important that any reform should not reduce the current level of protection. Indeed, this Bill improves that protection. Thirdly, it thought it desirable to avoid increasing hostilities between the adults involved, so far as that was compatible with providing proper and effective protection, both for adults and for children. I must say that the Government agree with those objectives and believe that they have been achieved in the current Bill.
The Bill repeals and replaces the whole of the Domestic Violence and Matrimonial Proceedings Act 1976 and the Matrimonial Homes Act 1983, together with relevant parts of the Domestic Proceedings and Magistrates' Courts Act 1978. Much of the existing law in the area is, however, re-enacted in the current Bill. In addition, the existing law has been strengthened in a number of ways.
Eligibility to apply for the remedies in the Bill is based on the concept of persons who are "associated" with one another by way of certain family or domestic connections or are parties to the same family proceedings. The Bill considerably widens the categories of persons" who may apply for orders. The new list consists of: current and former spouses and cohabitants; persons who live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder; certain close relatives; parents of a child or persons who have or have had parental responsibility for that child; and parties to the same family proceedings.
The Bill also provides that any child who is living with or might reasonably be expected to live with either party to the proceedings is protected, together with any child in relation to whom an order under the Adoption Act 1976 or the Children Act 1989 is in question in the proceedings and any other child whose interests the court considers relevant.
As I mentioned earlier, the two types of order which will be available are non-molestation orders, prohibiting particular behaviour or molestation generally and occupation orders with a variety of possible terms, either declaratory or regulatory. The current power to exclude the respondent from the home or a defined area around it has been retained.
Clauses 7, 9 and 10 of the Bill deal with the court's power to make occupation orders. Applicants for occupation orders fall into two categories, those who are entitled to occupy the home by virtue of a legal or beneficial estate or interest or a contractual or statutory 1256 right, including rights of occupation in the matrimonial home (referred to in the Bill as "matrimonial home rights") and those who are not.
In addition, the Bill will strengthen the enforcement powers held by the courts. For example, where there has been violence or threatened violence, the court will be required to attach a power of arrest to any specified provisions of an order in favour of any eligible applicant, unless, in all the circumstances, it is satisfied that the applicant or any child will be adequately protected without such a power.
In the case of ex-parte orders, the court will not be under any obligation to attach a power of arrest, but it will be able to do so in cases where there has been actual or threatened violence, provided that it is also satisfied that there is a risk of significant harm to the applicant or a child if the power is not attached immediately.
The Bill also gives the High Court and county courts the power to remand and to issue arrest warrants. The High Court and county courts are also given the power to remand for medical examinations and report. In addition, those courts will be able to make an order under Section 35 of the Mental Health Act 1983 remanding for medical reports a person arrested under a power of arrest or an arrest warrant where there is reason to suspect that he is suffering from mental illness or severe mental impairment.
It will still be possible for the court to make emergency ex-parte orders where it would be just and convenient. However, before doing so, the court will need to have regard to all the circumstances including certain factors set out specifically in the Bill.
The Bill makes amendments to the Children Act 1989 to enable the court to make an ouster order for the protection of children when making an emergency protection or interim care order. That will permit the removal of a suspected abuser from the home instead of having to remove the child. I very much hope that the provision will be used to give further protection to children in appropriate cases.
The Bill extends to cohabitants the power to transfer tenancies, at present contained in the Matrimonial Homes Act 1983. It also provides for the court, if appropriate, to order the payment of compensation by the transferee to the transferor, when it makes an order for the transfer of a tenancy. In deciding whether to exercise both those powers, the court must again have regard in particular to certain criteria set out expressly in the Bill.
I mentioned earlier that the Government are not seeking to implement every recommendation contained in the Law Commission's report. The recommendation that the police should have the power to pursue civil remedies on behalf of an aggrieved party was rejected because it would have involved a novel extension of police powers from a criminal function to a civil function. It would have required the police to decide whether to seek an order on the basis of brief contact with the parties, amounting to no more than a snapshot of a particular incident. In addition, it would have imposed significant and unaccustomed responsibilities upon the police for which the service has neither the resources nor the requisite expertise.
1257 The other significant policy departure from the recommendations of the Law Commission concerns the categories of people entitled to apply for orders. The categories proposed by the Law Commission of: persons who had at any time agreed to marry each other; and persons who have or have had a sexual relationship with each other were rejected, because the persons within them may not have the same domestic link as those in the other categories. In some cases, the relationship might have been brief and the parties would never have lived together. There might also be problems for the courts of definition and proof, which would not apply to the other categories. If that happened, it would undermine the principle that domestic violence remedies should be able to be obtained swiftly in emergencies. Of course, that does not mean that there would not be other remedies available to such people; but it means that the simplified form of procedure available under the Bill would not be available to them for the reasons that I have given.
I believe that the Bill will make a considerable contribution to the interests of victims of domestic violence. I also believe that it is uncontroversial in party political terms. We all appreciate the damage which can be inflicted by perpetrators on victims and on their families. I commend the Bill to the Special Public Bill Committee as a candidate for the non-controversial Bill procedure. Indeed, I have had some discussion in that respect. I believe that it is appropriate that that should be done.
I hope that noble Lords will feel that what I have said today illustrates my belief that the Family Homes and Domestic Violence Bill provides a firm a comprehensive foundation for the reform of the civil remedies for domestic violence. Therefore, I commend the Bill to the House for Second Reading.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.47 p.m.
§ Lord Archer of Sandwell
My Lords, your Lordships will wish me to express our gratitude to the noble and learned Lord both for introducing the Bill and for his clarity and succinctness in doing so. There is a text which I was encouraged to recite in my youth, "Ask and ye shall receive". Some months ago a number of us were concerned with the wasteful logjam of unimplemented reports from the Law Commission. We asked the Government to explore ways of channelling them on to the statute book. Our reasoning was not that the proposals are simply technical and unconnected with policy. Indeed, there is no point in recommending law reform unless some objective can be secured and the reform has some impact on practical living. Nor did we suggest that the proposals were necessarily wholly uncontroversial. Any proposal of practical importance is likely to admit of some differences of view, although it may not entail a major policy clash.
We have sought to point out what we know from experience; namely, that Law Commission reports are based on careful research, wide consultation and clear thinking.
§ Lord Hailsham of Saint Marylebone: Hear, hear!
§ Lord Archer of Sandwell
When the issue reaches your Lordships' House it will have been crystallised, the irrelevancies largely eliminated and the discussion focused. The Bill before the House today is a worthy example.
I should say at once that I am somewhat prejudiced. On these Benches, we see the Law Commission as a continuing tribute to the wisdom of a great Lord Chancellor, Lord Gardiner, in the Labour Government of 1964, implementing a proposal of the Society of Labour Lawyers. We will do our best to assist any initiative to make straight the way of Law Commission reports on to the statute book.
The Government have responded to our overtures. We appreciate the support of the noble and learned Lord the Lord Chancellor in implementing these proposals. It is common ground, as the noble and learned Lord indicated, that this Bill is ideally suited to the procedures of a Special Public Bill Committee, where questions of detail—important detail, but not amounting to major disagreements on policy—may be resolved with all the necessary expert assistance and without delaying business on the Floor of your Lordships' House. We are grateful for the initiative of the noble and learned Lord. May it be the first of many!
Perhaps your Lordships will permit me a personal reminiscence. It is a matter of pleasure to me that the first such Bill in which I participate should be on this subject. When the late Baroness Summerskill introduced the Bill which became the Matrimonial Homes Act 1967, she invited me to conduct the Bill through another place. We enjoyed valuable and appreciated support from the Lord Chancellor's Department. Ever since I have regarded domestic law reform as a subject which combines practical issues with an intellectual challenge. This, for me, is something of a sentimental journey.
I place on record also the appreciation on these Benches of the help we have received from experienced practitioners through the Law Society, the Society of Labour Lawyers, and Relate. The Bill, as the noble and learned Lord said, very largely implements the recommendations of the Law Commission report. I would be surprised if there were any widespread opposition to considering together the two related subjects of domestic violence and the problems that arise where two or more individuals cease to share accommodation.
Nor do I believe that many will query the case for rationalising the different jurisdictions and the piecemeal remedies and plugging the loopholes. I venture only a caution, to myself more than to anyone else. The matters with which we are dealing touch on some of the most deeply felt and most emotive factors promoting human happiness or human tragedy. Even the most rationally constructed legislation is dependent upon the sensitivity and the understanding of those who are called upon to apply it. We are fortunate in having in place judges, welfare officers, police domestic violence units and practitioners who have demonstrated their capacity in this field.
1259 This is not the occasion to embark on an examination of changes in family structures or the advantages and dangers of a strong extended family. Nor are we likely, I suspect, to profit today from a debate as to how far the problems are exacerbated by the housing situation, the funding problems of local authorities, the scarcity of day nurseries, and the strained resources of the police. But if we isolate these provisions wholly from real life, legal logic is in danger of becoming an arid exercise.
Our differences are likely to focus, substantially, I suspect, although not exclusively, on the two respects in which the Bill departs from the recommendations of the Law Commission, which were pointed out by the noble and learned Lord. One of the most welcome effects of the Bill is to extend beyond spouses and cohabitees the right to apply for non-molestation orders with powers of arrest. As the noble and learned Lord indicated, those who may apply are the associated persons defined in Clause 2. However, the Bill excludes from the definition two categories recommended in the report. It excludes persons who have agreed to marry, and persons who have had a mutual sexual relationship. The very helpful departmental memorandum which we received gives two reasons. Those were repeated, I believe, by the noble and learned Lord. First, it is said that it may be difficult for a court to establish whether persons fall into the categories. I must say I find that surprising. Courts have been deciding whether people have agreed to marry since long before the case of Bardell v. Pickwick, and they have been deciding whether parties have had a sexual relationship since before the establishment of the divorce court in 1857.
The second reason is that the categories may not be in such a vulnerable position as other categories. I have discussed the matter with experienced practitioners in the field. They say that often it is precisely those in these situations, where the hopes of one party are frustrated at the outset, where passions are least restrained. They also say that intervention at this early stage may head off more serious problems later. We await with interest the discussion of that issue in Committee.
Conversely, the Law Society has expressed some anxiety as to whether the Law Commission's definition of associated persons is sufficiently embracing. It does not appear to include the new partner of someone who has broken off a relationship with a former partner and who may be threatened by the former partner or indeed vice versa. It is not wholly clear whether categories (c) and (d) in Clause 2 are intended to include children. At what age and under what conditions is a child entitled to apply for protection? Nor is it explicitly stated whether categories (b) and (c) are intended to include homosexual or lesbian partners. If, when he replies, the noble and learned Lord can shed light on those matters we would be grateful. If he would prefer to reflect on them, we shall fully understand.
The other respect in which the Bill departs from the Law Commission proposals is in withholding from the police the right to apply on behalf of a victim for a civil remedy. The Law Commission proposed in Clause 17 of its draft Bill that a police constable would be empowered to apply for an occupation order or a non 1260 molestation order if he or she had attended at the incident, had reasonable cause to believe that the victim had been subjected to molestation and, having ascertained the wishes of the victim, considered that it was appropriate to apply—that is, the victim's wishes are relevant but not conclusive.
The Home Affairs Select Committee in its third report reached a different conclusion. It seems to have been persuaded largely by the view that the role of the police should, as the committee expressed it, be,cut back to its core functions rather than extended further".I understand the concern that the police service is desperately constrained in respect of resources. Anyone who has discussed the position with a senior police officer will be persuaded of that. But I have two difficulties with the committee's view.
First, I am not sure what is meant by the core functions of the police. If the suggestion is—as the noble and learned Lord rather implied a few moments ago—that there is something inherent in policing which requires enforcement of the criminal law but takes no account of the civil law, that seems to me an artificial distinction. The police are already empowered under Section 46 of the Children Act 1989 to apply for an emergency protection order in respect of a child, despite the fact that the ultimate responsibility lies with the local authority.
The second implication of the Select Committee's reasoning —the imposition of an unacceptable burden on police resources—also puzzles me because the presupposition is that the police will already be involved. One hopes that the case is being handled by a trained and experienced officer from a domestic violence unit. He or she is not likely to require legal advice or representation whereas, if the victim is left to pursue a private remedy, there may well be implications for the Legal Aid Fund.
I appreciate that there are other considerations. Some of the organisations concerned with the protection of women who gave evidence to the Select Committee expressed reservations. Those reservations are not shared by the practitioners with whom I have discussed the matter. They are concerned regularly with the protection of women and, I emphasise, have nothing to gain by expressing that view. They will see work they would normally be doing carried out by the police.
I accept that it is not a simple question. I understand the anxieties that some women may feel about having decisions taken out of their hands. I do not seek today to express a conclusion. That, indeed, is the purpose of the new Committee procedure. There are a number of matters in the Bill which invite further consideration.
I do not believe that the Law Commission would claim that any of its reports precludes further discussion. But what we have provides a solid basis of information and consultation on which discussion can be carried forward. We congratulate the noble and learned Lord on initiating that process.
§ 4 p.m.
§ Lord Meston
My Lords, we too are grateful to the noble and learned Lord for his introduction of the Bill and also for arranging for some of us to be provided with the very helpful Notes on Clauses.
It is conventional on these occasions to pay tribute to the Law Commission, whose report is the basis of the Bill. On this particular occasion it should be said that the Law Commission's report is of a particularly high standard, revealing extensive research and a very thorough consideration of all the issues. The resulting Bill, which rationalises and extends the scope of the law, should be welcomed on all sides.
The Law Commission's proposals have had the broad support of the professionals who are familiar with the practical operation of the existing law. In particular, the Family Law Bar Association and the Law Society have supported the proposals, with only a few reservations. It is entirely appropriate that the Bill should have the benefit of the scrutiny and analysis of a Special Public Bill Committee.
As the noble and learned Lord said, the law has developed piecemeal, with the legislation of the 1960s to protect deserted wives and that of the 1970s to protect battered women. More recently, the Court of Appeal has been prepared to recognise the need for protection from harassment, which does not fit neatly into existing categories of tort. It is certainly now time for a coherent and more comprehensive piece of legislation, drawing on the strengths of the existing law, and the existing procedure, and removing weaknesses. The Bill should achieve that, reducing the need for further testing of the limits of the inherent jurisdiction of the courts.
I do not wish to take up time going through the various clauses of the Bill in detail. It is surely right that the class of applicants for orders for protection should be extended, at least so far as this Bill provides. The decree absolute of divorce will not prove to be the jurisdictional problem which it has in many recent reported and unreported cases. The powers of the Bill can also be used to protect elderly relatives and in those difficult cases involving aggressive young adult children of the family. The Law Commission expressed the problems of that type of case particularly well in paragraph 3.17 of its report, in which it stated:When problems arise in close family relationships, the strength of emotions involved can cause unique reactions which may at times be irrational or obsessive. Whilst these reactions may most commonly arise between spouses and cohabitants, they can also occur in many other close relationships which give rise to similar stresses and strains and in which the people concerned will often continue to be involved with one another. The object of the law should be to provide a framework to enable people in this situation to continue their relationship in a civilised fashion".Paragraph 3.19 states:the proximity of the parties often gives unique opportunities for molestation and abuse to continue; the heightened emotions of all concerned give rise to a particular need for sensitivity and flexibility in the law".As the noble and learned Lord and the noble Lord, Lord Archer, indicated, the Bill does not extend to the question of the obsessive discarded fiancé or boyfriend. I join in hoping that the opportunity may be taken in Committee to reconsider the Law Commission's 1262 recommendations in that respect. The argument that there may be difficulty for the court in extending the category of applicants to such people is not particularly convincing.
Clauses 7 and 9 of the Bill provide new criteria for what practitioners are likely to continue to call "ouster" orders. The Bill is surely right to take the focus away from proof of misconduct and replace it with a more pragmatic focus on the need for housing and protection and on the balance of harm as between the adults and children who may be involved. However, I mention in passing that those new criteria may mean that the yardstick for legal aid, in particular for ex parte applications, may need to be reconsidered.
I particularly welcome Clause 12, which will enable the court to deal with the practicalities of the financial position after the order takes effect. It may be worth considering whether the court's powers could be exercised even if the application is refused or if it is adjourned. Clause 12 also allows the court to regulate the use of furniture and contents in the home. Perhaps that also can be extended to prohibit damage and misuse. All too often one finds that an evicted spouse or partner commits petty acts of vandalism as he or she leaves, to cause expense and annoyance to the other.
I also welcome the improved grounds for attaching a power of arrest contained in Clause 15. The power of arrest allows for breaches to be dealt with more swiftly and more summarily than separately initiated committal proceedings. I hope that that improvement in the operation of the power of arrest reflects a much greater willingness of the police to become involved in cases of domestic violence.
Clause 16 derives from recommendations of the Council of Circuit Judges and allows for remands in custody for medical reports. That will involve restrictions on the liberty of someone who has not yet been found to be in contempt of the court. I hope that it is a power which will be used sparingly, and only where serious mental illness is suspected. Again, perhaps this is a matter that we shall need to look at in Committee.
I have no doubt that the amendments to the Children Act will prove of value in protecting children from abusers or suspected abusers in the home. It allows the court in certain circumstances to do what social workers may have tried but failed to do. Your Lordships may have noted the concerns of the NSPCC in this respect. I shall not trespass on ground which I suspect will be covered shortly by the noble Lord, Lord Mottistone, the noble Baroness, Lady Faithfull, and possibly others. Again, it may be a matter for consideration in Committee.
Clause 21 is the only other clause to which I wish to draw attention. Perhaps this is a matter of concern to practitioners only. I ask the noble and learned Lord whether he can indicate what may be expected in the orders which he will promulgate in due course under Clause 21(3), (4) and (5). It surely must be hoped that there will be the maximum jurisdictional flexibility in this area.
1263 In one of the landmark decisions on this area of the law, Davis v. Johnson, which was decided by your Lordships' House judicially a number of years ago, the late Lord Salmon described the 1976 Act as providing:much needed first aid to married and unmarried women".In the same case the noble and learned Lord, Lord Scarman, said that:Homelessless can be as great a threat as physical violence to the security of a woman (or a man) and her children".It is to be hoped that the Bill will improve the quantity and quality of first aid available and will reduce the threat of homelessness; that it will reduce some of the pressure on underfunded women's refuges and will minimise the exposure of children to violence in their homes. Only in that way can we hope to reduce domestic violence occurring in one generation after another.
§ 4.10 p.m.
§ Lord Mottistone
My Lords, I, too, welcome the Bill in principle. I very much welcome its elegant introduction by my noble and learned friend the Lord Chancellor. We in this House will always associate my noble and learned friend with the far seeing Children Act 1989, and indeed subsequent Acts, all devoted to improving the lot and welfare of children. As with that Act, my advice on this Bill is from the NSPCC which also welcomes the opportunity afforded by the Bill to keep possible abusers from the family home.
As your Lordships will be aware, children are affected by violence in three ways: by high levels of tension in the family; by witnessing violence by one parent upon another; and as direct victims of domestic violence. Children subjected to those kinds of tension and violence are themselves more likely to behave similarly when they later have families of their own than are parents with more stable beginnings. Therefore, protecting children from abuse can present a long term as well as a short term benefit.
With its duties under the Children Act, the NSPCC is particularly well placed to contribute to the present Bill. Its concerns about the Bill—I hope that we shall be able to explore them at later stages, and a special Public Bill Committee might seem appropriate—are as follows. First, clarification is required as to whether the exclusion of an alleged abuser is an additional or an alternative measure to the removal of a child. Secondly, clarification is also required about the conditions to be met for the granting of an exclusion order, and about the protection of a child should the parent with care subsequently withdraw consent. Thirdly, I shall be seeking assurance that all victims of abuse receive the protection services they need. The Bill could result in placing too much onus upon the non-abusing parent to protect the child, without adequate protection and support services. Fourthly, will children be adequately protected outside the family home? The Bill seems to concentrate on protection only in the family home which could be a "place under siege".
Those are some matters for study during the passage of the Bill which require particular attention. Others may come to light as we debate the Bill. I trust that this 1264 important Bill will have a speedy but thorough passage through this House and another place so that it may be enacted as soon as practicable.
§ 4.13 p.m.
§ Baroness David
My Lords, I should like to add my thanks to the noble and learned Lord for his clear introduction to the Bill and for having supplied me with Notes on Clauses. There has generally been a warm welcome for the Bill from every quarter. The need for it has long been recognised. Domestic violence is a serious and widespread problem resulting in more than half a million assaults on women annually and affecting 750,000 children who are growing up in an atmosphere of violence. The overwhelming need of the women concerned, and of their children, is for personal protection and safe housing; and the Bill deals with these problems.
The existing civil remedies in this area of domestic law have been the source of much complaint. They are complex, confusing and lack integration, as paragraph 1.2 of the report states. The noble and learned Lord, Lord Scarman, described the statutory provisions as,a hotchpot of enactments of limited scope passed into law to meet specific situations or to strengthen the powers of specified courts. The sooner the range, scope and effect of these powers are rationalised into a coherent and comprehensive body of statute law, the better".He said that in 1984; it is now 1995. In 1992 we had the Law Commission Report No. 207, following on the earlier report, No. 113, on which there was consultation, and it is the draft Bill appearing in the 1992 report which is before us with very few changes. But I shall wish to comment on the few changes that there are and to ask a few questions, as did my noble and learned friend.
First, I must say that it is altogether satisfactory that the jurisdiction of the courts will operate in the same way as under the Children Act 1989. One of the great advantages of that Act and the rules made under it is that they introduce a basically unified system for dealing with family matters relating to children which applied throughout all the courts. The different levels of court will have the same powers save that the magistrates' court will have some more limited powers than county courts and the High Court in relation to occupation orders. And it will be possible to transfer cases to a different level of court where this is necessary because of the complexity of the case and/or the need to hear the application with others affecting the parties in different courts. This is seen as being consistent with the eventual introduction of a family court for which many of us have been asking for a very long time. I am sure that the noble Baroness, Lady Faithfull, will support me in this. These arrangements should make it very much easier for those needing to go to law; and, I hope, also cheaper.
Regarding Clause 2, first, it is, of course, absolutely right that cohabitees should have exactly the same rights as married people. We must be realistic. More and more people are choosing to live together, not married. It would be grossly unfair, in particular to their children, to treat them in any way differently. I should like to ask a few questions. Can the noble and learned Lord tell me whether Clause 2(b) applies to homosexuals and 1265 lesbians? My noble and learned friend asked that too. I was going to ask why Clause 2(e) and Clause 2(f) of the draft Bill were left out. I know that the noble and learned Lord has given a response to that. It might be a matter that needs to be pursued in Committee.
Would it be possible to cover new partners who are sometimes harassed by their partner's former partner? In particular, would it be possible to permit children of sufficient age and understanding who are in need of protection to apply for a non-molestation order? I know that some commentators on the Bill thought that the commission was mistaken in choosing to adopt such a cumbrous definition of entitled persons and in failing to recommend that an order should be obtainable by anyone who can prove a proper need for the law's protection. I am not convinced that that would fit into this family homes Bill.
Regarding occupation orders, the Law Commission in paragraph 4.24 identified two possible sets of criteria for making occupation orders, one based on a "balance of hardship" test, and the other on the paramountcy of children's interests. These are discussed, and the commissioners obviously did not find it easy to strike the right balance. Their recommendation, adopted in the Bill, is a middle course. I would be interested to hear the arguments against making the children's interests paramount, which was the guiding principle of the Children Act. I hope that we can have an answer on that.
Non-molestation orders may be made for the protection of any relative of the respondent or of any person associated with him or her. "Relative" includes son, daughter, stepson and stepdaughter. "Associated person" includes anyone living or having lived in the same household otherwise than merely as an employee, tenant, lodger or boarder. This could, it seems, include the "stepchild" of a new unmarried partner of the child's parent. In considering whether to make an order, the court must have regard to the need to secure the whole safety and well being of any relevant child and may include in the order a provision prohibiting the respondent from molesting any relevant child. It appears therefore that children feature both as objects of the court's concern whose welfare must be considered when an adult applies for an order, and (in the guise of relatives or associated persons) as people who may apply in their own right for a non-molestation order. Could I ask whether that is a correct interpretation of Clause 13 and whether it really does enable children (defined as anyone under 18 in the Bill) to apply in their own right for an order?
The Bill is silent on how the court will ascertain the child's interests. It makes no provision for the court to call for welfare reports and does not require the court to take account of the child's own wishes and feelings. I hope that something can be done about that in Committee.
As regards exclusion requirements and ouster orders, the recommendations in the commission's report appear to be well thought out and to have been faithfully reproduced in the Bill. Could I ask whether children will be adequately protected outside the family home? The Bill seems to cover the non-abusing parent and child only in the home—I think that the noble Lord, Lord 1266 Mottistone, made that point—and not the parent and child elsewhere. What would be the noble and learned Lord's attitude to the court being given power to attach an exclusion requirement to an interim supervision order, as well as to an interim care order?
What seems to have aroused most criticism of the Bill is the leaving out of Clause 17 of the draft Bill which gave the police powers to apply for civil remedies on behalf of the victim of violence or molestation. I am not certain that it is right to have left that out. Bringing and enforcing civil proceedings will remain too onerous for many women faced with the most frightening and potentially harmful threats to their safety and to their children's safety. It seems to me that the commission considered the matter, all the pros and cons, carefully in paragraphs 5.18 to 5.23 and I myself was convinced by its arguments. No doubt we shall come back to that in Committee. I know that the noble and learned Lord did give an answer to this when he spoke.
However, as I said at the beginning, there is a warm welcome to this very necessary Bill. The Home Affairs Committee report on domestic violence in 1993 emphasised this need. The Bill greatly simplifies the law and strengthens procedure and should make life easier for many women and children. I support the noble and learned Lord's notice for a Special Public Bill Committee to be set up and I hope that the new procedure agreed by your Lordships, that the Committee stage of non-controversial Bills can be taken off the Floor of the House, will mean that more Law Commission Bills will be able to come forward and be dealt with quickly in this way. I support all that my noble and learned friend Lord Archer said in his speech on that.
§ 4.23 p.m.
§ Baroness Faithfull
My Lords, with others I thank my noble and learned friend the Lord Chancellor for introducing the Bill. It seems particularly appropriate that he should do so since he introduced the Children Act 1989. I wish to take up points made by the noble Baroness, Lady David, and my noble friend Lord Mottistone. I speak from the point of view of the British Association of Social Workers, with particular reference to child sexual abuse.
I dealt with such cases, often having to visit the home and remove the mother and child or persuade them to be removed from their home because the man had the tenancy of the house. In doing so, one created a double problem for the child. First, the child suffered the alleged abuse; then it had to be removed from the place it knew—from the rooms in which it lived and its usual habitat—and, in many cases, go to another school. Therefore, one very much welcomes the Bill.
I wish to ask many of the questions which the noble Baroness, Lady David, asked. How will the child be protected in its own right? An extraordinary thing happens. Where a child admits to suffering child sexual abuse, or alleges that its father, the co-habitee or the man living with its mother has abused it, often that child incurs the deep displeasure of the mother, the relatives or brothers and sisters. The child suffers again.
1267 I ask my noble and learned friend to elucidate on the points made by the noble Baroness, Lady David. How will the child be heard in his or her own right, by whom and through what channels? When dealing with such cases I have found that to be one of the most difficult problems. In the local authority where I worked I was fortunate because two flats were available to me for use at any time. Therefore, I could often persuade the mother to move into the flat with the children. But that is not the case now and most local authorities do not have accommodation other than a women's refuge. Very often, when the child accuses a parent of abuse the mother is resentful of the child. Therefore, I ask the same questions as the noble Baroness: how will the child be heard in his or her own right, by which court, under which law and with what results?
§ 4.25 p.m.
§ Lord Mishcon
My Lords, I refuse to be the only speaker in the debate who does not pay tribute to the Law Commission and the noble and learned Lord the Lord Chancellor. Therefore, I pay my humble tribute and follow it with a few brief observations.
The noble and learned Lord rightly described existing legislation dealing with such matters as, "piecemeal, complex and confusing". We therefore owe a debt to the noble and learned Lord and to the Law Commission for legislation which does away with those three bad attributes. There is now one comprehensive Bill before us dealing with such matters, involving multiple legislation in its terms and provisions. I thank the noble and learned Lord for doing one thing, if no other—producing a comprehensive Bill dealing with violence in the home, if I may use that shorthand.
I am able to say that the family law committee of the Law Society warmly approves of the Bill. As a loyal and devoted member of the society, I cannot think of a superior tribute from any person or body. The measure is generally approved.
I wish to make one or two observations. Where this House plays its part in putting a Bill on the statute book, all too often one forgets the practical aspects of carrying the provisions and the spirit of the Bill into effect. I hope that when the Bill is enacted there will be a continued emphasis on the need to encourage inter-agency co-operation in ensuring that the Bill's provisions are carried out with a unified effort on behalf of the family.
I also wish to emphasise what has already been said. One of the advantages of the Bill and the Children Act is that we brought a criticism constructively to the problem of our existing courts going into matters involving the married status, divorced status, custody of the children, welfare of the children and, in many cases, dealing with those matters in separate courts without even the co-operation of those who adjudicate in other courts upon precisely the same family. One of the advantages of the Bill is, again, that we ensure that the Children Act procedure, which has been very successful so far as I can tell, is followed in the Bill in the sense 1268 that a matter can be transferred from one court to another court which has been dealing with it and is more suitable for doing so.
I return to the plea that was made by earlier speakers. Does this not point to the need, so often emphasised in this House, for a family court? Have we not reached the stage when the noble and learned Lord, in replying to this debate, can say, "I am now near it. We have advanced by stages and my next plan to deal with matrimonial affairs and with the matters relating to children within the marriage is the family court"? If he does come out with that utterance, he will deserve a tribute not only from all Members of this House who have spoken for this Bill, but from the country as a whole.
§ 4.30p m
§ Baroness Fisher of Rednal
My Lords, my comments will be quite brief. I want to thank the noble and learned Lord the Lord Chancellor. I put my name down on the list of speakers at a very late stage, but he still managed to get the notes to me this morning. The noble Lord, Lord Mottistone, covered some of the information that I had received from the NSPCC. My knowledge of the real problems is based on my experience as a magistrate in the courts in Birmingham. As a magistrate, there is nothing more harrowing than to listen in great detail to the suffering that goes on in different people's homes. It is almost beyond imagination. Perhaps what we need to do—to follow the point that was made by the noble Lord, Lord Mishcon—is to see the family as a whole. These days that implies the health of that family, employment within it and the whole care of it. It is not for us to try to fit a jigsaw together when we do not have all the pieces.
As the noble Lord, Lord Mishcon, just said, one would like to see other inter-agencies working together. This morning I attended a meeting in London to discuss the Rowntree Commission's report on children. The people there represented so many children's organisations that my mind boggled at the large number of organisations dealing with all the various aspects that relate to children. There is a need for them to work together, practically as well as intellectually. Those are two different approaches. The intellectual approach is necessary but one has to be able to put it into practice.
Finally, how do we define a family home? Before I became an MP I was chairman of a housing authority in Birmingham. Cases were sent to us from the courts and we had to make a decision as to who would live in the property. It was very difficult. All the tenancies were joint tenancies, so they were in the name "Mr. and Mrs.". To have a "family home" one had to turn out one or other party. That caused great difficulties and it took a long time for the committee to reach a decision. It was felt that the family home should be a new home, unknown to the father; and the father would then be moved into other accommodation. Because he was very often then a single person, he would be moved into a one-bedroom flat. That might not be the ideal solution, but there has been a stipulation that the children should be adequately protected outside the family home.
1269 If that policy were continued, would the "family home" be somewhere where the man could not even darken the door because it was not the family home any more? It is a moot point. I am not sufficiently au fait with the law to answer it. If that policy changes, I would ask the noble and learned Lord, the Lord Chancellor, to look at the definition of a family home, given that what I have described takes place in the City of Birmingham.
§ 4.35 p.m.
§ Lord Simon of Glaisdale
My Lords, perhaps I may slip into the gap to say only one or two sentences which are intended to reinforce and support the remarks of the noble Baroness, Lady David, and the noble Lord, Lord Mishcon. I know that this view commands the assent of the noble Baroness, Lady Faithfull. I refer to the increasing desirability of a family court to deal with all of these problems. There is before this House at the moment a Private Member's Bill dealing with family mediation in Scotland. In the view of those of us who have been concerned with the problem, the family court could well encompass the whole process of mediation, conciliation and counselling as a preliminary step. I hope that we shall not for a moment lose sight of the desirability of a comprehensive scheme of family courts.
§ 4.36 p.m.
§ The Lord Chancellor
My Lords, I am extremely grateful for the degree of warmth in the welcome that this Bill has received. I certainly join very heartily in the tributes that have been paid to the work of the Law Commission, and also to my predecessor in this office, Lord Gardiner, who was the moving spirit in the legislation that set up the Law Commissions both here and in Scotland. Since the noble and learned Lord, Lord Archer of Sandwell, went into a little sentiment, perhaps I may be allowed to say that I spent some happy times as a law commissioner. I was trying to give practical effect to my belief in the organisations that he set up.
I am also glad to be able to follow the noble and learned Lord, Lord Archer of Sandwell, in promoting a Bill about the matrimonial home. If I do it as well as he promoted his Bill, I shall be extremely happy.
Perhaps I may say a word about the family court. I believe that we have one. There are, of course, questions relating to what the family court should do in all circumstances. I hope to address matters such as mediation which arise out of the Green Paper that I produced some time ago in relation to the grounds for divorce. Work on that is proceeding as fast as the nature of the problem permits.
I am also very conscious of the point that was made by the noble Baroness, Lady Fisher of Rednal, the noble Lord, Lord Mishcon, and others, that there is a need for inter-agency co-operation. That is perhaps true right across the field with which we are concerned. There are state agencies in these fields, and there are also many voluntary agencies.
I believe that it is extremely important to build on the tremendous amount of expertise and effort that comes from the voluntary organisations in this field. Many serve with a sense of real commitment as their primary 1270 reason for being in those organisations. It is very necessary to do what one can to co-ordinate these matters. I am busily engaged on trying to see what arrangements can be made in respect of mediation. As noble Lords will know, there is more than one organisation in that field. If there is any question of trying to extend my operations in that area, a degree of co-operation is a necessary basis for further progress.
The Children Act—particularly with its jurisdictional provisions—in effect set up a family court, because it allowed these proceedings to be taken either in the family proceedings court at the magistrates' level or in the county court, presided over by judges who have made special studies, and, finally, the Family Division. The result is that at every level one gets the necessary family jurisdiction.
As I said earlier, it does not necessarily mean that everything that everybody wants should be available in a family court. An example would be mediation. My noble and learned friend Lord Hailsham of Saint Marylebone, when he held office, commissioned some research on mediation. One of the conclusions drawn by that Newcastle study was that, on the whole, court annexed mediation probably gave not quite such good results as non-court annexed mediation.
§ Lord Mishcon
My Lords, the noble and learned Lord is dealing with a most important point. Does he feel that a magistrates' court in essence is a suitable court to be called a family court when, as a rule, a magistrates' court deals with criminal affairs?
§ The Lord Chancellor
My Lords, I wish to answer that question very emphatically. I believe that the family proceedings court at the magistrates' level is an extremely effective way of dealing with family matters. That was one of the issues that we discussed when the Children Bill was before this House. I knew that more than one of your Lordships believed that a family court had to be based at least at the county court level. I did not share that view. I believe that in many matters, particularly those concerned with children, the law books and technical knowledge of the law, although helpful, have only limited value. I feel that the practical decisions about where a child should live and so on are just as well taken by the magistrates.
Since the noble Lord has intervened, I shall take this opportunity to say how well in my view, generally speaking —I do not express an opinion on particular cases—the magistrates have responded to the challenge of the family proceedings court. Many of them have devoted many hours of their time, without remuneration of any kind and sometimes at considerable financial loss—because of the nature of the financial loss provisions that we are able to operate—in training to deal with such cases. I believe that my colleagues in the Family Division of the High Court and also those in the county court would wish to join in that tribute. That is not to say that every decision that every magistrates' court has taken in these matters is perfect. There are not many courts—short of the infallibility of this House—which can claim better than that.
1271 I have been distracted somewhat from the main matter of seeking to answer one or two questions that have been raised in relation to this Bill. So far as concerns the precise extent of the definitions, it is very much a matter for the Special Public Bill Committee looking at the evidence as a whole. Perhaps I should say—again, I digress slightly from the main subject—that I believe that in that procedure we now have a very good method of dealing with these matters.
Hitherto, there has been a feeling that Law Commission reports could go through Parliament rather quickly. But although the Law Commission has studied the matter very carefully, there are often quite substantial points of importance left. The trick has been to find a way to deal with them without unduly taking up time in the ordinary legislative process of your Lordships' House. The Special Public Bill Committee has proved to be a very good way of proceeding. This is the second Bill in this Session that will be committed to such a procedure. I feel that that is extremely good. Perhaps I should take this opportunity, as I see my noble and learned friend Lord Brightman in his place, to say how grateful I am that he took the chair both for that previous Bill and the one last year. Presiding over a new procedure, he has shown us all how to deal with the matter with fairness, thoroughness and reasonable expedition.
I accept the problems that have been mentioned in relation to the precise extent of the power to apply. I do not say that the courts cannot deal with matters such as those raised in the type of title that I have sought to set aside. I am looking for a very summary procedure. Therefore, anything that requires any prolonged investigation into the title of the person to raise it does not seem to me to be so suitable for that. I want to have a thoroughly good procedure which works quickly—that is necessary—in the vast majority of cases. To try to refine it and broaden it too far may damage the very objects that are being pursued.
With regard to protection outside the family home—a point raised by my noble friend Lord Mottistone and the noble Baroness, Lady Fisher of Rednal—that is primarily concerned with domestic violence; that is to say, violence in the home and the family home itself. The extent to which one can reasonably provide protection outside the home is a matter of some question. As I said in my opening speech, there is the possibility of protection for an area around the family home on the lines that presently exist and it is proposed that that should continue. But there is a grave question as to whether that protection can be moved to any place under this kind of legislation. Your Lordships would be wise to guard against trying to catch everything in legislation of this kind, which needs to be well focused in order to be reasonably comprehensible and reasonably comprehensive.
Important questions were raised by my noble friend Lady Faithfull, and the noble Baroness, Lady David, about the child. A child could come under the applicant section of the Bill. So far, I have not sought to lay down very clear indications of how the child might be consulted while the child is not an applicant itself. That 1272 perhaps is a matter that we should look at. I am inclined to give the court as free a way as possible to proceed. My noble friend and other noble Lords who are very familiar with this area will know that obtaining a welfare report can sometimes create a good deal of delay, for obvious reasons. I am anxious to have a procedure that is as speedy as possible in the circumstances. That is a matter to which we might give particular attention.
There is also the matter of new partners harassed by former partners. A link between them is created by the partner in common. No doubt that is a problem. Again, one must be careful in considering how far one should go.
I indicated in my opening remarks the principal reasons for not implementing the view taken by the Law Commission that the police should have power to initiate civil proceedings. I was asked what I regard as the core work of the police. Perhaps I should not attempt an inclusive definition. It is a grave question in general whether it is an appropriate matter for the police to raise civil proceedings. I know that in relation to certain proceedings under the Children Act, where a child is found in an emergency situation, the police, as the authority finding the child, will have power to apply for an emergency protection order. But that is an exceptional situation. There is a question of whether it is wise to involve the police generally in civil proceedings.
The precise scope of who are cohabitants is a matter that we can look at. Some provisions will include cohabitants of the same sex because sometimes it is necessary that protection of this sort be available to them.
The other matter raised by the noble Baroness, Lady Fisher, in relation to the new home is of considerable importance. My impression is that the Bill is aimed primarily at trying to protect the family unit within the old home, and that one of the possible ways of doing that is the ouster of the violent member of the family from that home. That is something we discussed in the Children Bill proceedings and I am glad to be able to get that far because it is an important change.
We may wish to discuss in Committee a number of matters in detail in the light of evidence, but I have taken up enough of your Lordships' time without going further into this matter. It is with a great deal of confidence therefore that I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Special Public Bill Committee.