Orders of the Day — GUARDIANSHIP AND MAINTENANCE OF INFANTS (NO. 2) BILL [Lords]

– in the House of Commons at 12:00 am on 24th July 1951.

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Order for Second Reading read.

12.4 a.m.

Photo of Mr Geoffrey De Freitas Mr Geoffrey De Freitas , Lincoln

I beg to move "That the Bill be now read a Second time."

I commend the Bill to the House as a short but important Bill. It does two things: first, it alters the law of venue in guardianship proceedings; and secondly, it raises the maximum amount that may be ordered by a court of summary jurisdiction under the Guardianship of Infants Act. Hon. Members, in particular the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) and the hon. Member for Rushcliffe (Mr. Redmayne) have for some time been uneasy about the law and have suggested legislation. I hope that they and other hon. Members will find that this Bill meets their points.

The Bill deals with orders made under the Guardianship of Infants Acts, 1886 and 1925. These Acts empower the High Court, the county courts, and the courts of summary jurisdiction to make certain orders—orders for the custody of infants, or access to infants, and for payments of maintenance. Last year the High Court decided in the case of the Sandbach justices that an application made under the Guardianship Acts to a court of summary jurisdiction could only be made—and this was an important decision—to the court in the place in which the respondent lives.

If the mother is living in Plymouth, the father in Newcastle, and the child is with the mother, and she wants legal custody and maintenance, then she must apply in Newcastle. Under the Separation and Maintenance Acts the mother in practice applied in this case to Plymouth, and many courts acted on this analogy and entertained applications under the Guardianship and Maintenance Acts. We believe it to be wrong, and out of keeping with the feeling today, that the law of venue should be restricted in this way.

Accordingly Clause 1 (1), seeks to give the courts of summary jurisdiction the jurisdiction many of them thought they had until this decision in the High Court. Its effect would be that the mother may apply in Plymouth or in Newcastle. We go even further than that. We say that if the child happens to be living neither with the mother nor the father, but say in Skegness, then the mother can apply there. The same change is proposed for the county courts. In Clause 4 there is a provision for the validation of old orders that turned out in consequence of this decision to have been made without jurisdiction

. The second important purpose of the Bill is to raise the maximum amount which a court of summary jurisdiction may order. At present the court can award a maximum of 20s. a week under the Guardianship Acts, and 30s. under the Separation and Maintenance Acts, as amended by the Married Women's Maintenance Act, 1949.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

Can the Under-Secretary say why we perpetuate the anomaly that an application can only be made to the High Court, where the respondent is residing in Scotland or Northern Ireland—not domiciled, but temporarily resident—so that where an application is made by the mother and the father goes for a time to Scotland or Northern Ireland, he can defeat any action, except the expensive one in the High Court?

Photo of Mr Geoffrey De Freitas Mr Geoffrey De Freitas , Lincoln

If the hon. Gentleman raises that matter in Committee, we could have an interesting discussion.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

If the hon. Gentleman tells me why we are doing that, I should know whether it is worth while raising it in Committee.

Photo of Mr Geoffrey De Freitas Mr Geoffrey De Freitas , Lincoln

I think the point could be pursued with interest in Committee. I am sure the hon. Gentleman has many points he could raise there.

The position with regard to the 20s. and the 30s. is anomalous. Clause I (3), therefore raises the 20s. to 30s. for orders under the Guardianship Acts, and Clause 2 (1), does the same for certain analogous orders. This Bill applies only to England, except for Clause 3, which makes certain consequential changes in the collection of Income Tax, and that Clause, for the sake of uniformity, applies to Scotland.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I am sure the House is grateful to the hon. Gentleman for the clear exposition he has given of this Bill. So far as we are concerned, we regard it as a wholly admirable Bill, improving and correcting an anomaly with regard to the amount which can be ordered to be paid, and also in reversing the decision in the case mentioned by the hon. Gentleman.

There is one possible abuse in the Bill in that it is possible for an applicant to go to no fewer than three different courts to try and get an order, and I would urge him to give consideration to this point before the Committee stage, in order possibly to avoid prolonged discussion. I imagine it is not the Government's intention that a person unsuccessful in one court should be able to renew his application in a second and third court, without a change of circumstances. If that is not the intention, I suggest to the hon. Gentleman that it is desirable that it should be made clear in the Bill. I hope he will be able to draft something to that effect for inclusion in Committee. I think this is particularly desirable because the practice in the High Court is that an applicant can go from one court to another in precisely the same case.

Photo of Mr Geoffrey De Freitas Mr Geoffrey De Freitas , Lincoln

That is certainly not the intention of the Government. There may possibly be a defence of res judicata, but I will not go into the question now. I will certainly give the undertaking to look at this point.

12.11 a.m.

Photo of Mr John Higgs Mr John Higgs , Bromsgrove

Looking back over the legislation in this field passed during the last two or three years, it appears that a great deal has been done to clear up anomalies. We had the anomaly that a wife could obtain an order in respect of herself under the Married Woman (Maintenance) Act, because an order under that Act was easily enforced, and she could obtain another order in respect of the children under the Guardianship of Infants Act, because a large sum could be awarded under that Act, although the enforcement of an order under that Act was more difficult. We have not only brought about the equalisation of the amounts which can be awarded under these Acts, but we have also made their enforcement equally simple.

There is one class of order in favour of children which we encounter from time to time which it is difficult to enforce—namely, the maintenance order which emanates from the divorce court. Although it does not come within the limited scope of this Bill, it is an order for the maintenance of children. To those searching for ways further to improve legislation in this field, I commend the possibility of improving enforcement orders made in the High Court, as part of divorce proceedings, in cases where the amounts are similar to those awarded by justices making orders of this kind, by making these orders enforceable by justices. I believe that would greatly help women in humble circumstances who at present find difficulty in extracting from unwilling ex-husbands the maintenance to which they are entitled. Hon. Members who have come up against this matter will bear me out that there is considerable scope for improvement there.

12.15 a.m.

Photo of Mrs Eirene White Mrs Eirene White , Flintshire East

I do not want to detain the House for more than a moment, but there are some important matters in the Bill relating to women which cannot be discussed on the Committee stage. We all welcome the Bill as far as it goes, in so far as it increases the amounts and widens the jurisdiction of the courts, but I think that many of us wish that the Government had introduced a more comprehensive Measure. I think we all realise that many women are placed in extremely difficult circumstances because they may not be able to obtain the money which is their right for themselves or their children, although they may have obtained an order in court.

We may be able to discuss the matter of Scotland in Committee. Here again, considerable hardship is caused because a number of men have discovered a loophole in the law. There is a wider law in Scotland, but there is no provision in the Bill for extending it to England and Wales, whereby a man who falls into arrears in payment of the maintenance order may have it stopped from his earnings. This is a matter on which many organisations representing women feel strongly. Where a man has a proper obligation to pay for the maintenance of children covered by this Bill, and does not meet it, much stronger action ought to be taken than can be taken under the present law.

There is another matter, that of the husband who has moved to another district where the wife cannot trace him, although it is known that a Government Department has information which would enable her to trace him but will not disclose it. Where a woman has no means of tracing her husband but knows that a Government Department could find him if it wished to do so, the freedom of the individual not being tampered with by a Government Department ought to be weighed against the obligation of a man towards his children. It seems to me that at the moment it is always weighted against the obligation towards the children and the family.

I mention these points because many of us would have wished the Government to have introduced a more comprehensive Measure than they have tonight.

12.18 a.m.

Photo of Sir Ronald Bell Sir Ronald Bell , Buckinghamshire South

I entirely agree with the hon. Member for Flint, East (Mrs. White), about enforcement orders, but I entirely disagree with her on her last point. I hope the House will yield to no special argument in derogation of the obligation to secrecy of Government Departments. There is always a strong and particular case to be made for special claims, but one must always remember the general question of principle. Though I support the hon. Lady in one matter, I should be against her in the other; but as we are discussing something which is not in the Bill, I do not think we should quarrel too much about it.

Like my hon. Friends, I welcome the provision which increases the amount which may be claimed by an applicant, but I am not at all happy about some of the provisions. Often Parliament legislates in these matters from the point of view of the injured wife, but one also has to consider the possibility of the injured husband. I have in mind the case where a wife might desert her husband and go to a remote part of the Kingdom where she would bring proceedings for the custody of the child in a court there. The child may be with the husband in the original matrimonial home in the vicinity of which witnesses who might have supported the husband's case may be living.

I am not at all happy about the proposal in the Bill which gives the wife three possible choices, particularly the most convenient one for herself, and makes it difficult for the husband to get justice. This matter must be considered from the point of view of both sides, particularly as the law has a duty to the husband as well as to the wife. The aim in considering the machinery of justice is how a right decision is most likely to be reached by the courts. I hope we shall not entirely lose sight of that principle when we consider this Bill in Committee.

Finally, a word on the point raised from this side of the House about the serious risk of cumulative proceedings. I shall have to refresh my memory on this, but my strong impression is that under the Guardianship of Infants Acts, 1886 and 1925, one can go to court as often as one likes. The principle laid down in these Acts is that the welfare of the child is the pre-eminent consideration, but one can come back and make a new application in the same court, let alone in a different one. Therefore, in Committee we may find it rather difficult—though I hope the attempt will be made—to limit" the number of applications to the same court or to a different one, either from the point of view of time or else by requiring a change of circumstances to be decided on a preliminary hearing or something of that kind. One really must protect the respondent against oppressive use of the rather wide powers that this Bill affords the wife.

Question put, and agreed to.

Bill accordingly read a Second time.

Committed to a Committee of the whole House—[Mr. Bowden]—for this day.