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New Clause—(Duties Of Collecting Officer In Respect Of Enforcement Of Maintenance Orders)

Volume 466: debated on Friday 24 June 1949

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(1) Where an order made under the Summary Jurisdiction (Married Women) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid through or to an officer of any court, and the payments are at any time in arrear to an amount equal to four times the said sum, that officer shall, unless it appears to him that by reason of special circumstances it is unnecessary or inexpedient so to do, give to the married woman notice in writing stating the particulars of the arrears.

(2) Where an order made under the Summary Jurisdiction (Married Woman) Act, 1895, or under section five of the Licensing Act, 1902, requires that any weekly sum payable to or on behalf of a married woman shall be paid to or through an officer of any court, and any sums payable under the order are in arrear, that officer shall, if the married woman so requests, proceed in his name for the recovery of those sums; but the married woman at whose request the proceedings are taken shall have the same liability for all costs properly incurred in or about the proceedings as if the proceedings had been taken by her.—[ Mr. Asterley Jones.]

Brought up, and read the First time.

I beg to move, "That the Clause be read a Second time."

One of the comments which was most forcibly made in Committee, notably by my hon. Friend the Member for Sutton (Mrs. Middleton), was that it was very little use enlarging the powers of the courts of summary jurisdiction to make orders unless there was some guarantee of those orders being enforced. I agree that that is a most cogent argument. It was proposed during the Committee stage that certain steps should be taken by way of attaching wages at sources and in other ways to make the enforcement orders more effective, but those proposals did not, for various reason, commend themselves to the Committee. Nevertheless, one proposal was made, which did gain very general support, and this Clause puts that into proper form.

It is possible in a case for the payments which are ordered to be made by the court, instead of being made by the husband to the wife, to be made to an officer of the court. It lies within the discretion of the court to order that that shall be done. This system has very many advantages. Very often the women concerned are not perhaps particularly well informed about their legal rights. Always they are worried and embarrassed by the difficulties, into which they have unfortunately fallen, and it was proposed by a Departmental Committee which considered this matter some years ago that the use of a court official for the purpose of receiving payments ordered by the court and for the purpose of advising married women generally should be very greatly extended. Indeed, it is the practice, as I understand it, in a very large number of courts in this country to use the services of a collecting officer, not only to provide the machinery whereby these payments may be collected, but to advise married women generally in regard to the enforcement of their rights.

I understand it is the custom very often for the collecting officer to take the necessary action to enforce payment in his own name, but apparently some doubts have been raised whether that system is technically correct. Therefore, we propose in this Clause to make it quite clear that this method is proper, and, indeed, that it is one which should be adopted in all possible circumstances.

1.45 p.m.

The effect of the Clause is that if the court decides that the payment shall be made to the collecting officer of the court—and of course it need not so decide—then that officer is placed under a statutory obligation, if those payments fall into arrears for four weeks or more, to inform the married woman what is the exact state of those arrears. He is allowed a certain amount of discretion when he knows that special circumstances have led to those arrears having accumulated. In that case he is not under this obligation to inform the married woman. That is quite obviously reasonable, because he may know that the husband is sick, or unemployed or something of that sort. Therefore, there is no object in carrying the matter further.

When the married woman has been informed by the collecting officer of the state of affairs she may request the collecting officer to institute proceedings and he will do so in his own name. That avoids the necessity, which so many of us have observed, of the married woman starting the proceedings herself and having to go to court once or twice or several times on a fruitless journey. It means that the collecting officer is able to initiate and to undertake the proceedings himself.

I am a bit worried about the word "shall" in subsection (2). One gets cases time after time of a married woman who desires to be vindictive and forces her husband before the court over the arrears under an order. Why make it mandatory on the collecting officer; why should he not have discretion in such a matter?

The answer to that question is that it has been found under the present system that it works quite well in practice in a large number of courts, but there is a small number of courts which do not take their duties in a responsible way. Therefore, some mandatory order should be made. My hon. Friend's point is met by the last words of subsection (2), which enable the court to mulct the married woman in costs if she brings proceedings which are unjustified. My hon. Friend will see that even if proceedings are taken in the name of the collecting officer the married woman has the same liability for costs as if the proceedings had been taken by herself. That is the sanction——

But is that really correct? The cost of these proceedings are 4s. It is inconceivable that a man, who appears for maintenance on a warrant before a court, can employ a skilled advocate. This does not seem to be a sanction.

Normally the costs are 4s. but as far as we are aware there is no statutory limit on costs. If a collecting officer is put to extra work there is no harm whatever in the court making a greater order for costs provided that the costs are related to the actual amount of money spent. I have no doubt whatever that the court could deter a married woman from carrying out such a vindictive policy.

It appears to me and to my hon. Friend that some provision has to be made to deal with those courts which do not take their duties seriously. Apart from the arguments which I have advanced I would say it is better to accept the risk of one or two married women misusing this system than to allow a large number to go without a remedy or with an imperfect remedy merely because the collecting officer has the necessary power.

I agree with this Clause. I did not propose to oppose it, but I rose originally to express some doubt about the mandatory term. I accept the point put forward by my hon. Friend the Member for Hitchin (Mr. Asterley Jones), and I agree that this has to be dealt with. There are certain courts which completely neglect their duties in this manner. They are not numerous, but there has to be some method of dealing with them; and I accept that explanation.

The final observations of my hon. Friend the Member for Hitchin, which he made in response to an interjection from me—and for which, therefore I am to some extent responsible—must be commented upon. It is not the function of a court of summary jurisdiction to use an award of costs to express their views about the merits or desirability of the proceedings. It would be quite monstrous to say that they should award a fictitious sum having regard to the amount of work done by the collecting officer; he gets his remuneration on an ordinary basis and in no connection whatever with the costs of proceedings.

The only costs awarded are those which are precisely incurred: the court costs, plus, if it is thought fit, the fee for an advocate or the expenses of witnesses. Normally there would be no witnesses, and it is fantastic that there should be an advocate in a case of this kind. Therefore, there is really no mandate or sanction to prevent the vindictive married woman using the mandatory part of this procedure in circumstances that really must be remembered, and I ask the House to remember what these circumstances normally are. A husband is in arrear with an order. The very serious difficulty is that the husband is proceeded against by warrant—he is to be brought up; he is to be taken at least into formal custody and released on bail; he is to be away from his work in circumstances under which all too frequently he may very well lose his job. The result is that the bringing of a husband before a court at all in these circumstances is a course that should be exercised only when necessary; and the person who can judge of this necessity is the collecting officer.

All too frequently the married woman feels vindictive in the circumstances in which the marriage has broken down, particularly if there is another lady in the case; and all too frequently the married woman has been only too anxious to bring the husband up, weekly if she can, when he is a few days in arrear. It is exceedingly important that the discretion of the collecting officer should be preserved, if possible; the point made by my hon. Friend the Member for Hitchin about bringing the neglectful courts up to scratch could, perhaps, be dealt with in some other way. I have risen, therefore, only to express some doubt about the mandatory term. I hope this point will be considered before the Bill goes, as I hope it will, to another place. I certainly do not oppose the Clause. On the whole, I accept it as a most useful improvement to the Bill.

I rise to make one other point of a rather different character from those which have been made by my hon. Friend the Member for Oldham (Mr. Hale). The first part of the new Clause gives to the collecting officer a discretion whether or not to inform the married woman of the amount of arrears that have accumulated. Unfortunately, it is only too true that in cases of this kind the parties concerned are under a certain amount of emotional strain; and it may well be that by giving the collecting officer this very important discretion we are investing him with almost judicial functions. What he considers to be circumstances that make it unnecessary or inexpedient for him to write to the married woman about arrears might well be differently interpreted by the married woman herself.

The consequence would be to create, or tend to create, difficulties in individual cases as between the married woman whose maintenance is in arrear and the collecting officer. These special circumstances which create the arrears are just the very circumstances with which the magistrate himself so very often has to deal. It seems to be derogating in some sense from the powers of the magistrate to decide on an issue of this kind if the Clause goes through in its present form.

I wish to support the Clause. I hope it will be placed upon the Statute Book. I have some particular interest in it in view of the fact that in the Committee stage I tabled an Amendment intended to give effect to the proposals contained in the Clause; I withdrew it with a view to further consideration being given to the wording in order that it might cover some of the points mentioned in the Debate.

It seems most important that this power should exist. We all have had experience of these cases in our capacity as Members of Parliament who have been consulted by our constituents. I, like others, have had cases, some of them very painful, and I have been forced to the conclusion that unless the collecting officer were employed there would be a large number of cases, some of which I have encountered, in which the woman, not able to conduct her own case and without means to do so, not able always to get a solicitor who would help her—at any rate, at a cost which she could possibly afford—would be left simply stranded.

There is the further question, of course, of the arrears piling up. In one instance in my constituency the arrears piled up to over £60 in the case of a man who was earning, I think, only £4 a week. In practice, it would be impossible for him to discharge that debt at any one time. If it were not brought to his notice after a short period he would have got into the position where he would finally decide that it was better to get a decision against him in the court, be imprisoned and have the whole debt wiped out. That is a deplorable position.

I am grateful to those who have drawn up the Clause. We have been materially helped by the very kind advice and assistance of the Under-Secretary and I am grateful also to him for helping to get this excellent piece of legislation on to the Statute Book. I shall not weary the House at this stage with a long discussion on the Clause. Its principle and object are plain. The result of this legislation will be a very great improvement in the condition of women who have been deserted by their husbands and who need to be maintained by allowances paid by them; it will put the matter on a new footing and open up a new chapter for many women in this country.

My hon. Friend and I will look at the points made by our hon. Friends the Member for Oldham (Mr. Hale) and the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) and make sure that before the Bill is finally concluded all possible safeguards are inserted.

Question put, and agreed to.

Clause read a Second time, and added to the Bill.