Orders of the Day — Divorce (Insanity and Desertion) Bill

– in the House of Commons at 12:00 am on 6th December 1957.

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Order for Second Reading read.

1.17 p.m.

Photo of Mr William Deedes Mr William Deedes , Ashford

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

This is a short Bill whose objects are, I think, fairly plain. I hope very much they will be generally acceptable. The Bill seeks to make a small contribution on the lines recommended by the Royal Commission to those who are seeking divorce on grounds of insanity. I do not think those circumstances require any embroidery from me. Nor do I think it necessary for me to rehearse the background against which the Royal Commission made its modest recommendations. Those who are interested in them can read, and will have read, the relevant paragraphs in the Royal Commission's Report, mainly paragraphs 172 to 209 and 252 to 263, and will appreciate how very carefully the Royal Commission went into and balanced considerations which arise from the present law.

It did not propose any fundamental change in the law on the retention of insanity as a ground for divorce, but it did discuss and suggest certain remedies to meet small anomalies in the present law which can lead to causing those concerned additional suffering and hardship. This Bill is designed to give effect to those remedies. Perhaps the House should know that of the 149 recommendations in respect of England and Wales and the 81 recommendations in respect of Scotland which the Royal Commission put forward a great many have already been put into operation by rules of court or by administration. There are others, these among them, which require legislation.

To explain the first, if not the principal, provision of this Bill, it is necessary to say a word about the present law. Under Section 1 (1, d) of the Matrimonial Causes Act, 1950, a husband or wife can obtain divorce on the ground that the other party to the marriage is of incurably unsound mind and has been continuously under care and treatment for a period of at least five years immediately before the presentation of the petition.

Section 1 (2) also provides that a person shall be deemed to be under care and treatment only under four conditions. I do not think I need trouble the House with those four conditions in detail, but the point which should be made about them is that they all lay emphasis upon the certification of the respondent as a person of unsound mind.

It was a point of substance made by the Royal Commission that there is an increasing tendency to regard certification as the last step in a course of treatment. It may be worth recalling the passage of the Royal Commission Report in which this is discussed. It is paragraph 177, which reads: The chief criticism of the present law arises from the fact that, subject to the minor exception already noted in respect of England, divorce is available to a spouse only it the other spouse has been a certified patient for at least five years in a mental hospital or similar institution. There has been an increasing tendency, however, to regard certification as the very last step in the course of treatment for mental illness and then to be taken only when it is imperative for the patient's own welfare or the public safety. The Royal Commission went on to elaborate this point in paragraph 178: … while it is desirable to avoid certification as far as possible, this may result in considerable hardship for the patient's spouse. The patient may have spent some years in a mental hospital before he is certified; by that time it may be clear that his insanity is incurable and that all hope of the resumption of a normal married relationship must be given up, yet his spouse has to wait until the full period of five years' care and treatment as a certified patient has elapsed before taking divorce proceedings. It is also possible for relief to be completely denied, because the patient, although incurably insane, continues to keep his voluntary status simply because the need for certification never arises. I think that the point is quite clearly and cogently made in those observations of the Royal Commission. The Commission therefore thought that treatment as a voluntary patient should be recognised as constituting care and treatment whether under the mental treatment Acts or in an institution outside these Acts. I think it is generally accepted that this brings the spirit of the law up to date to meet a more modern approach to mental sickness. In a word, certification is no longer to be the criterion. Accordingly, the Royal Commission recommended that care and treatment in any hospital or other institution in England. Scotland, Northern Ireland, the Isle of Man or the Channel Isles should be deemed care and treatment for the purpose of divorce proceedings on grounds of insanity That is provided in Clause 1 (1, a) of the Bill.

I should add, in parentheses, that this alludes only to treatment for mental illness. Were a patient admitted for some physical ailment and were he subsequently to suffer mental disorder, the period would not begin from the beginning of the treatment for the physical disorder but only from the beginning of the treatment for mental disorder. Moreover, this provision covers only treatment in hospitals and institutions in any sense recognised by public authorities. It would not cover the treatment of a single person in the charge of a doctor, a matron or some other such person. That would clearly be outside the scope of the Royal Commission's careful recommendation.

Given this slightly more comprehensive provision, the Royal Commission thought that hardship could well arise in the case of a person whose spouse had to receive care and treatment overseas. The Commission recommended the inclusion of institutions overseas roughly equivalent with the provisions which they laid down, and they indicated that it would be necessary and incumbent upon the petitioning spouse to show that the general standards in the country overseas were substantially the same as the conditions here. That is provided in Clause 1 (1, b).

The Royal Commission also thought—this is referred to in paragraph 201 of its Report—that a break of 28 days or less should not be regarded as interrupting a continuous period of care and treatment. This is met in Clause 1 (3).

What has been omitted from the Bill is the Royal Commission's recommenda- tion that a person is regarded as receiving care and treatment as long as his name is on the current records of the hospital. In the provisions here, that appears to be unnecessary. If such persons are detained in pursuance of an order and allowed out, under the existing law that is not breaking continuity. If they are being or have been treated as voluntary patients and recover sufficiently to go home, the practice is to discharge them from the hospital, and their names will automatically be taken off the books.

There remains one other matter under this heading to which the Royal Commission gave attention. As the law now exists, the spouse of a person serving in Her Majesty's Forces can be at a disadvantage compared with the spouse of a civilian. The short point is that at present a wife whose husband is in the Services and who is petitioning for divorce on grounds of her husband's insanity cannot rely on any period during which he has been receiving care and treatment in a military or naval hospital. Only care and treatment pursuant to an order or warrant under the Army Act falls within Section 1 (2) of the Matrimonial Causes Act, and such an order is not issued until the man is about to be transferred to a civilian hospital. Clause 1 (2) provides that a certificate from the Admiralty or the Secretary of State shall henceforth be conclusive evidence of the facts certified, and this will mean that mental treatment in a military hospital will qualify under Clause 1 (1, a).

Finally, we come to Clause 2, which is on a rather different point. As the law stands, under the Act of 1950, a husband or wife may petition for divorce on grounds that the other party to the marriage has deserted the petitioner without due cause for a period of at least three years immediately before the presentation of the petition, but the petitioner must prove not only that the respondent deserted for at least three years before the presentation of the petition but also that during the whole of that time he or she retained the intention to desert.

It will be seen that if the spouse becomes insane after desertion, he or she may be incapable of retaining such an intention and that, therefore, as the law at present stands, the petition will fail. The Royal Commission discussed this in paragraph 260 of the Report, which reads: In our opinion, in such cases it would be reasonable that desertion should be deemed not to have been interrupted by the insanity of the deserting spouse if it appears to the court that the desertion would probably have continued if he had not become insane. We recommend accordingly. Clause 2 of the Bill provides for that.

It remains only to say that, as the Royal Commission recommended, the provisions of this Bill will apply to Scotland as well as to England. I hope that the House will perceive that its provisions fall almost entirely—I think I could say entirely—in line with the recommendations of the Royal Commission. One might perhaps add that it incorporates what is probably amongst the least controversial of the recommendations. It deals with a ground of divorce which must arouse the greatest compassion, irrespective of the views anybody may have on the subject. In no way would the Bill's provisions loosen the bonds of marriage. On the contrary, they do, perhaps, untie one or two small knots which cause additional suffering and additional hardship. That is why I commend the Bill to the House. I hope the House will agree to give it a Second Reading.

1.30 p.m.

Photo of Mrs Eirene White Mrs Eirene White , Flintshire East

I should like, briefly, to support the Motion proposed by the hon. Member for Ashford (Mr. Deedes), who has most clearly and lucidly described the purpose of this Bill.

The purpose of the Bill is a narrow one, and deals only with one aspect of the subject. There are other matters concerned with persons of unsound mind or with mental defectives which were referred to by the Royal Commission that might possibly have been included in legislation concerning, for instance, cruelty, but the hon. Gentleman has, I think wisely in the circumstances, decided to confine his Bill to one relatively narrow matter; and that is really just to bring into line with modern treatment and modern thought the provisions of our existing matrimonial legislation.

The number of persons concerned is very small. I have been looking up the statistics, and find that in 1956, out of 27,753 petitions presented in England and Wales only 222 were based on this ground. In Scotland, the figure is also very small. Out of about 2,000 petitions presented annually, only about 20 are based on this ground. It will be seen that in both England and Scotland, the proportion is very small. That does not, of course, make the individual case any less distressing, and I am sure that it is the wish of the House to do anything we can to relieve the position of spouses who are, at present, placed in peculiarly difficult circumstances.

The Royal Commission points out that some representations were made that the period of five years might have been shortened. The Commission rejects that, I think rightly, because it says that with this ground of divorce the most stringent safeguards should be taken for the benefit of the person being divorced. I think that that is absolutely right; that in this type of case, one should not contemplate shortening the period.

The Commission also says, very rightly, that in respect of a comparatively new ground of divorce as this is—it has only existed since 1937 in this country, and since 1938 in Scotland—it is undesirable that there should be any difference between the law in the two countries. One of the purposes of the Bill is to put this ground on an equivalent footing as between the two countries, though in many respects the matrimonial law of Scotland is much more sensible than that of England and Wales.

I do not think that anybody is likely to take exception, on medical grounds, to the proposals in this Bill. While doctors incline to disagree, as do lawyers, the consensus of opinion on this matter is that modern methods of treatment should be encouraged, and the law brought into line with them. I have looked also at the Report of the Royal Commission on Mental Illness and Mental Deficiency. That indicates that, having read the Report of the Royal Commission on Marriage and Divorce, the more recent Commission is in agreement with the other in this recommendation.

It makes one slight caveat. I hope that we are on strong ground in this Measure as drafted, because the Royal Commission on Mental Illness and Mental Deficiency says: We see no difficulty, from the point of view of our own recommendations, in the new wording proposed by the Royal Commission— that is, the Royal Commission on Marriage and Divorce: except that it is not quite clear whether it would cover a period of residence in, for example, an after-care home which might not provide 'treatment' in a strict sense but which might care for patients who are still 'of unsound mind' and are unfit to return to their homes but are not expected to benefit from further treatment in hospital. We suggest that 'care' should always be mentioned as well as 'treatment' in this context. I assume that the draftsmen have looked at that, and are satisfied that this Measure, as now drafted, covers that point.

One very important practical matter, of course, is provided for here, and that is the practice, in the modern treatment of mental illness, that patients should, usually for fairly short periods, from time to time be allowed to return to their own homes on trial, although still under treatment from the hospital. I understand that, in the past, doubts have been expressed in the courts as to whether or not this was to be regarded as breaking continuity. By this Bill, it is to be understood that it is not a break in continuity, as long as it is done at the direction of the institution from which the patient is receiving treatment.

Some members of the British Medical Association who gave evidence before the Royal Commission on Marriage and Divorce pointed out that unless something was done to meet this situation the present provisions of the law would penalise the faithful spouse who does her best for the patient—that is to say, who is anxious to have the patient home, and to do anything that can possibly be done in the hope that she can make a success of the treatment—whereas it encourages the spouse who is indifferent, and who possibly contemplated divorce from the beginning of the illness—the spouse not willing to receive the ill person home for trial periods. It is only right that we should remedy that situation.

One point mentioned by the hon. Gentleman is of great importance to some people; the position of wives of Service men who become insane. I will not go into any detail, because I believe that the hon. Lady the Member for Devonport (Miss Vickers) wishes to say something about it. It is important, however, to a small number of persons who have been peculiarly hardly done by under the existing provisions of the law.

On the other matter of principle dealt with in the Bill, that is to say, the provision about desertion, I hesitate to speak in legal terms, as I am not a lawyer, but I gather that this is really a provision to give statutory effect to something already decided, in principle, in a case which reached the House of Lords. That decision applies to England and Wales. I am not certain whether a case has been heard in Scotland since the Royal Commission on Marriage and Divorce reported, but at that time there seemed to be some doubt about this in Scottish law. In any case, the Bill should now clear up that position for both countries.

I hope very much that this Bill, short as it is, but important as it is for the few persons concerned, will receive the approbation of the House.

1.40 p.m.

Photo of Miss Joan Vickers Miss Joan Vickers , Plymouth, Devonport

I congratulate my hon. Friend the Member for Ashford (Mr. Deedes) upon introducing this small but very important Measure. I should like also to congratulate the hon. Lady the Member for Flint, East (Mrs. White) because, as we know, had she been fortunate enough to have drawn a place in the Ballot she would have introduced a similar Measure which perhaps would have been even more comprehensive. We appreciate that it is probably through her efforts that this Bill has been introduced today, for she has worked for many years on this subject.

Having said that I welcome the Bill, I should like to take up one or two points mentioned by my hon. Friend the Member for Ashford. He said that we do not want to loosen the bonds of any real marriage, and we are very anxious that this Bill should not be taken as dome so. I should like to quote from the Gorell Commission, which says that the marriage relationship has ended as if the unfortunate insane person were dead and the objects for which the marriage was formed have become wholly frustrated. We can fairly say that in the cases with which we are now concerned the marriage has ended, and, therefore, we are simply making conditions happier for the spouse who is not afflicted. We are not in any way loosening the bonds of a real marriage.

I should like to refer to a matter that was raised by the hon. Member for Flint, East concerning medical practitioners. One has heard many people say that in view of the medical knowledge of mental disease that is gained each year there is perhaps some doubt about the need for such a Bill as this. However, I think it has been found in Scotland, which in many ways has better laws than England—and, indeed, it is said in page 57, paragraph 182, of the Royal Commission's Report—that the problem does not arise there because the fact that the patient has been under care and treatment for at least five years raises a presumption of incurability. We are only, therefore, coming into line with that practice which has worked so well in Scotland.

I want to raise two other points. One relates to Clause 1 (1, b), which says: … as a resident in a hospital or other institution in any other country, being a hospital or institution in which his treament is comparable with the treatment provided … as in the United Kingdom, the Isle of Man, or the Channel Islands. I should like to know how the Southern Irish would be affected. As we know, divorce is not recognised in that country. If anybody living in Eire wishes to get a divorce, he has to come to this country to do so. Can any arrangements be made to get the medical evidence relating to somebody who is in a mental institution in such a country as Eire?

There may be other countries which are similarly situated, but in England there are many citizens of Eire some of whom may have a spouse in an institution in that country. I would be very grateful to know whether this point has been safeguarded.

I am also interested in the application of this Bill to the Services which are mentioned in Clause 1 (2), which says: For the purposes of the foregoing subsection a certificate by the Admiralty or a Secretary of State that a person was receiving treatment for mental illness during any period as a resident in any naval, military or air-force hospital under the direction of the Admiralty, the Army Council or the Air Council shall be conclusive evidence of the facts certified. I understand from the mover of the Bill that Service men can be transferred to a civilian hospital. I should like to draw attention to subsection (3), which contains the words: … any interruption of such a period for twenty-eight days or less shall be disregarded in determining whether any period of care and treatment has been continuous. In many cases these persons may be serving overseas. They may be in a military or naval hospital. I should like to know whether 28 days can be considered a sufficient period if, for instance, a man has to be transferred back from serving in Malaya and has to come by sea, it may or may not be in a hospital ship. Will that constitute a sufficient period to allow such people to be brought back so that they may benefit from this proposal?

I should also like to draw attention to the fact that the Yarmouth Naval Hospital has now been transferred. This is the hospital to which naval patients were sent under the Matrimonial Causes Act, 1950. I should like to know whether other hospitals under naval jurisdiction will be considered to qualify in the same way as did the naval hospital at Yarmouth.

I welcome the Bill and I hope that it will be possible to clarify in Committee the points which I have raised. I trust that it will receive a Second Reading.

1.46 p.m.

Photo of Mr Reginald Sorensen Mr Reginald Sorensen , Leyton

I warmly welcome the Bill and I heartily congratulate the hon. Member for Ashford (Mr. Deedes), and the hon. Lady the Member for Flint, East (Mrs. White) on their exposition of the Bill, small though it is.

This small Bill deals with a very small proportion of our people, but it is to the credit of this country and of this House that we are prepared to devote attention to a minority of our population. How that fits in with the concept of the greatest good for the greatest number we can discuss at another time, but certainly if we were not prepared to address ourselves to the needs of a very small section of our community we should be involved in a steady drift towards a totalitarian conception of human interests.

I am glad to support the Bill today for several reasons; first, because I participated in the debates on the Matrimonial Causes Bill in 1937, and I have no reason at all to regret my action on that occasion. I have seen that Measure passed into law, and although at first there was considerable unwarranted apprehension lest this Bill should lead to an increase in divorce, nevertheless I feel that that Bill has brought relief to many thousands of human beings who otherwise would not have secured it. This led to the regularisation of human relationships which otherwise would not have been possible, and although defects have been exposed in the course of time, I am glad to feel that some of those have been met by subsequent legislation.

I am also interested in all these Measures because, for twenty-one years, I had experience of mental hospital administration in one of the two great mental hospitals in the County of Essex. I am quite convinced that legislation on these lines is, taking everything as a whole, to the benefit of all concerned.

Before passing on to one or two observations on the Measure, I should like to say that I consider that, with all due safeguards, if in fact cohabitation is impossible in what is legally called marriage then the marriage has ceased to exist. One of the three reasons for marriage elaborated in the marriage service in the Anglican Prayer Book is precisely that to which I have alluded—in other words, cohabitation. If cohabitation cannot exist, it seems to me that part of the marriage at least has ceased. There is no reason why affection should not remain even if the spouses are divorced, but one of the primary objects of marriage has not been fulfilled and, therefore, the marriage ceremony is virtually nullified.

Obviously previous legislation intended to deal with precisely those cases has unfortunately, through some legal defect, failed to include certain cases. In other words, the intention and object of legislation heretofore has been frustrated in a few hundred cases. All the Bill seeks to do is to remove that frustration of the intention of previous Acts of Parliament, in other wrds, to make it possible for those seeking divorce to do what previous Acts intended they should be able to do.

I shall be glad if the hon. Member for Ashford will tell us whether the Bill covers cases where, for instance, individual patients themselves voluntarily choose to withdraw from hospital, securing their own discharge. One welcomes, of course, the diminution in the number of certified cases, but that diminution means that many more persons are now voluntary patients who can secure their own discharge at almost any time. That being so, it is surely possible for a patient to discharge himself or herself and thus not be within the provisions of the Bill. No action could be taken precisely because the patient would no longer be receiving mental treatment. It may well be that he or she would need it; very often, patients voluntarily seek discharge from hospital when still needing treatment.

Does the Bill cover that category of patients unwisely withdrawing from hospital, securing their discharge, and then, apparently, no longer receiving the continuous mental treatment to which the Bill refers? There are circumstances, I suggest, in which interested parties with ulterior motives could persuade a patient to seek discharge. In that case, the object of this Bill is also frustrated, as far as I can see, and I should be very glad to know before the debate ends whether the Bill can comprehend or include that class of case. If not, then it seems to me that yet another Bill will at sonic time be required in order to deal with that further small minority.

Further, how is it to be determined that a patient has been in a hospital or institution in another country and has been receiving treatment comparable with the treatment provided in a hospital in this country? Who is to determine that? Is some kind of certificate to be secured from the person in charge of the hospital or institution overseas, or shall some authority in this country determine whether the treatment is comparable? There is nothing in the Bill to indicate exactly what the position is. This question is linked in some measure with the observations of the hon. Lady the Member for Devonport (Miss Vickers), and I should like to hear about it from the hon. Gentleman whose Bill this is.

I join with all other hon. Members in emphasising our firm desire that everything shall be done to safeguard the interests of the patient. Where there is the slightest chance of recovery after mental treatment, I trust that everything will be done to secure either prolongation of the treatment on the one hand or suspension of any action for divorce on the other. There are within our experience cases not only of tragedy, as we know full well, but also of happy reunion after a lapse of time. There are, of course, rare occasions when patients thought to be incurable do recover, and there are those who say, on that ground alone, that a Bill of this kind is dangerous. I cannot agree. I believe those cases to be very rare indeed and, on the other hand, that the number of those who might suffer permanent and crippling disability is very much greater.

There must be no erosion of the institution of marriage. We want to encourage spouses to live together in happiness and well being. We want to do all we can to secure the return of those who have been ill physically or mentally, but where there is, in fact, reason for saying that there is prolonged mental illness which not only prevents cohabitation but should prevent cohabitation, then it seems to me the intention of previous legislation which has been frustrated should now be fulfilled. In my view, the excellent Bill now before us, which I have the honour and pleasure to support, is likely to achieve that object.

1.57 p.m.

Photo of Mr Charles Doughty Mr Charles Doughty , East Surrey

I support this small Bill in the knowledge that it affects only a small number of people. The original Act of 1950, the Matrimonial Causes Act of that year, covered persons who were married, and who were incurably of unsound mind, being detained in the appropriate institution. It is very important to remember that, in passing this Bill, we are not striking at the roots of the 1950 Act. The person who is to be divorced, if I may use that expression, still must be shown to be incurably of unsound mind.

Unless the petitioner can satisfy the court, presumably by medical evidence, that the respondent is incurably of unsound mind, he or she will fail to secure a divorce either under the 1950 Act or under the present Bill if it becomes an Act. That is as it should be. As the hon. Member for Leyton (Mr. Sorensen) told us, there are many cases of cure, and there are many cases which have been given up and then shown to be curable. It would be wrong if a person found himself cured and then, at the same time, found that he had been caught by the Act. We are not changing the Act in that respect, and it is right that we should not.

What the Bill does is to relieve hardship under the Act of 1950, which, in Section 1, refers to a person being detained under an order. If a person is detained under a certification order as there referred to, the law at present provides that, provided that person is incurably of unsound mind, the spouse can petition for divorce. Recently, however, as we know from reports we have received from mental hospitals—indeed, it has been mentioned in debate in the House—there is an increasing tendency for patients voluntarily to enter hospital. Such voluntary patients can discharge themselves if they so desire. Of course, in appropriate cases, it may well be that the hospital authorities, with knowledge of the patient's condition and history, might obtain an order. It is to cover that class of person that the Bill is being introduced. Though the Bill will affect but few cases, it is none the less a good Bill and I congratulate my hon. Friend upon bringing it before the House to fulfil that limited purpose. Indeed, we should encourage people to become voluntary patients where possible, and to avoid certification.

The hon. Member for Leyton asked my hon. Friend the Member for Ashford (Mr. Deedes) what the effect of the Bill was upon patients voluntarily discharging themselves. I am not the promoter of the Bill, but I would venture the opinion, which I hope will be accepted as right—we have my hon. and learned Friend the Solicitor-General with us—that, when a person discharges himself, it is quite clear that he is not resident in a hospital or institution for five years and, therefore, if he does not come within the subsection providing for an interruption of 28 days or less, he could not be shown to be within the provisions of the Bill. There would, therefore, be no ground for the spouse petitioning for a divorce.

It would be difficult to say, of a person who is well after discharging himself and who remains in the world outside, that he was incurably of unsound mind. If such a person showed himself to be of unsound mind, he might well find himself back in the same or some other institution.

Photo of Mr Reginald Sorensen Mr Reginald Sorensen , Leyton

Does the hon. and learned Gentleman appreciate that there are thousands of people of unsound mind now who are not in mental hospitals? They may not be chronically of unsound mind, but they are certainly of unsound mind, and they voluntarily refuse to go into hospital in the same way as others voluntarily decide to do so.

Photo of Mr Charles Doughty Mr Charles Doughty , East Surrey

I appreciate that. It is, of course, always a difficult question to determine who is of unsound mind. With those persons who do not go into institutions, of course, we are not concerned today.

Though I give my support generally to the Bill, it does not necessarily follow that I agree with every single word of it. Quite frankly, I am not too happy about the provision for interrupted residence. If a person is well enough to interrupt residence he is, in some respect, at any rate, not incurably of unsound mind.

Perhaps the most difficult thing of all to decide about—and two hon. Members have already mentioned it—is the paragraph referring to a person receiving treatment for mental illness in a hospital in another country. In that case it has to be proved that the treatment in that other country was the same type of treatment as is given in mental hospitals in this country. I have not heard of any cases of people whose spouses are detained in mental institutions in other countries, and I think that it would be unwise to include this provision. I hope that, in Committee, it will be struck out.

Except by calling foreign as well as English mental specialists, how is a petitioner to satisfy the court that a person is detained in a place which provides treatment comparable with that given in mental hospitals in this country? It would be a great burden upon such a petitioner. No great hardship would be caused by striking it out, and it is an innovation which should not be brought in.

Clause 2 deals with the entirely different question of continuing desertion. I am not going to take up time by asking why the promoter uses the word "likely" whereas the Royal Commission uses the word "probably." These words have different meanings in the courts. There is an argument that the court already has this power with regard to desertion, where a person in the course of the three years concerned becomes mentally unsound. The Clause probably clarifies the law, although it puts a great burden upon the courts, which will have to decide the very difficult question of what might have happened if some one had not become of unsound mind.

It may be that within one month of marriage a person deserts his or her spouse and that nearly three years later the court is asked to decide what might have happened if the person had not become of unsound mind. I think that that difficult problem should be left to be decided by the very capable judges who deal with these very difficult cases.

I end as I began, by saying that I hope that the House will give this limited Measure its support. Any hon. Member can reserve his right to propose Amendments in Committee if he or she thinks fit, but the Bill should help a small number of our fellow-citizens who, while suffering great hardship, cannot bring themselves within the strict terms of the 1950 Act. The Bill may serve to bring them relief, and in that case we should be thankful that we have days for Private Members' Bills so that we can introduce this type of Bill to remedy a small anomaly which the Government might not have time to do.

2.3 p.m.

Photo of Mr Marcus Lipton Mr Marcus Lipton , Lambeth Brixton

It is a refreshing experience to hear the hon. and learned Member for Surrey, East (Mr. Doughty) speaking in favour of law reform on a Friday. It is an unusual rôle for him to play, and if anybody had doubts about the merits of the Bill the fact that the hon. and learned Member has spoken in favour of it should be enough to dispose of them.

I hope that the promoter will think very carefully before he accedes to the request to strike out of his Bill the provision referring to treatment in another country. As a result of the war, there has been a greater degree of upheaval and a greater degree of the breaking of family ties in the last few years than perhaps ever before in history. Cases may well arise where one spouse is found living in one country and the other in another country, in circumstances over which neither has any control. One of those persons may have to receive mental treatment in a foreign land. There is by now, between most civilised countries, a sufficiently uniform standard of mental treatment for it to be acceptable in any court in this country which has to decide a case of this kind.

There have been some cases of hardships arising as a result of the existing state of the law. They may be few in number, but when they arise they are extremely agonising to the parties involved. If the Bill makes some contribution towards solving a few of the problems with which it is intended to deal, it will serve a most useful purpose.

2.5 p.m.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , City of York

My hon. Friend's Bill has the support of hon. Members who have spoken, and all of one Royal Commission and a little of another. I wish to add Her Majesty's Government to the list of supporters. I should also like to congratulate my hon. Friend the Member for Ashford (Mr. Deedes) upon his good fortune in the Ballot and upon the way in which he has used it.

Some hon. Members have said that this Bill affects only a very few people. I am not sure that that is quite right. It is a Bill which removes injustices, and I regard the removal of injustices as something which affects every person in the country. Her Majesty's Government respectfully offer their help in any matters relating to the Committee points raised by hon. Members.

The hon. Member for Leyton (Mr. Sorensen) addressed some questions to my hon. Friend the Member for Ashford, who introduced the Bill. Perhaps I can help by answering them to the best of my ability now. The first question was in relation to treatment, in a foreign hospital, which is comparable to that provided in a hospital here, as referred to in Clause 1 (1, b). It is for the court to decide, upon evidence called before it, whether or not such treatment is comparable.

It is obviously difficult to arrive at the right provision because, if the law takes a certain period of care and treatment as one of the yardsticks for the purposes of a divorce on the ground of incurable insanity—as the law does—we may do great harm to the spouse suffering from mental ill-health if we do not inquire what the treatment was, and ensure that the patient had all the medicine that could have been provided.

The position is easy enough to deal with if it occurs here, because we can obtain direct evidence—which can be brought quickly before the court—to show what the treatment was. But that does not work where a patient is detained overseas. Owing to the wide variety in the standards of treatment of mental ill-health, we are faced with the difficulty either of running the risk that the petitioning spouse will get a divorce without establishing that care and treatment of a sufficiently high standard has been given, or, on the other hand, of putting the burden upon the petitioning spouse to prove that the care and treatment given is comparable.

It is very difficult to see how one could ensure in any other way that the mentally-ill spouse had secured the right standard of treatment. Paragraph 209 of the Royal Commission's recommendation was related to standards which are substantially the same as those obtaining in respect of the care and treatment of patients suffering from mental illness in England or Scotland …. The Bill puts a slightly less heavy burden upon the petitioner, because, as compared with the recommendation, it refers to treatment … comparable with the treatment provided. That is presumably because it was felt that the recommendation of the Royal Commission placed too heavy a burden upon the petitioner.

I was puzzled to hear my hon. and learned Friend for Surrey, East (Mr. Doughty) talking about hardship in this context. I imagine that if a person had the terrible misfortune to find himself still wedded to a spouse who was incurably insane—and that is a very dreadful situation for anybody—he would regard it as a great deal less of a hardship to have imposed upon him the burden of proving that his spouse in a foreign country was receiving treatment comparable with that given in this country than to be deprived altogether of being able to get his divorce in those circumstances.

Photo of Mr Charles Doughty Mr Charles Doughty , East Surrey

I had in mind the obtaining of satisfactory evidence in this country of treatment received in a foreign mental institution or hospital to meet the requirement that such treatment shall be comparable. That is the practical difficulty to which I was referring.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , City of York

My hon. and learned Friend will understand that there must be a practical difficulty, unless we can think of another way of getting over the legislative difficulty which is involved. The Royal Commission did not think it an insuperable practical difficulty, and I do not think that the House should think it an insuperable practical difficulty. There may be cases when it is extremely awkward, but modern communications become better every day and we want someone reliable to describe to the court the standard of care and treatment in the institution in question.

May I now turn to the question raised by the hon. Member for Leyton, which I might seek to answer? Manifestly, voluntary patients will from time to time release themselves. No doubt, in some cases, they may do so unwisely. If the voluntary patient, under the terms of this Bill, releases himself and is permitted to remain at freedom, as it were, for more than the 28 days contemplated as not constituting an interruption for the purposes of this Bill, he will have ceased to be liable to be divorced on the ground that he is incurably of unsound mind.

There, inherently, is the difficulty that if we treat as irrelevant the fact that a voluntary patient has secured his own release for a continuous period of more than 28 days before the five years are up, the standard required for the proof of facts to justify the breaking of the marriage tie will be dangerously lowered. The difficulty that the hon. and learned Gentleman raises is a real one, but I cannot think of any possible way in which we can legislate out of the difficulty.

Photo of Mr Reginald Sorensen Mr Reginald Sorensen , Leyton

Would it not be possible to include in the Bill, by Amendment, a reference not to certification, but a statement by an appropriate competent medical authority that in its view the patient was still suffering from mental disorder and, therefore, could be included in the Bill?

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , City of York

On the principle of the Clause in the Bill one takes an uninterrupted period of care and treatment as one of the standards by which one measures the liability of a patient to be divorced. If we chose to substitute a different standard it would represent a larger change in the law than the Bill contemplates. The House would be reluctant to explore those parts of our law until we reached the stage of legislating in consequence of the recommendations of the other Royal Commission in the whole sphere of certification.

I regret, this having been a matter of great interest, that I have been beguiled into saying more than I meant to say in offering the support of Her Majesty's Government to the Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).