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Clause 27—(Saving)

Volume 478: debated on Friday 20 October 1950

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The Lords agree to the Amendment made by the Commons in Clause 27, at the end of subsection (1) to insert:

"(2) It is hereby declared that any jurisdiction conferred by Part I of this Act, or any enactment therein referred to, upon a court in any part of the United Kingdom is exercisable notwithstanding that any party to the proceedings is not domiciled in that part of the United Kingdom."

but propose the following Amendment thereto: at end insert:

"and any jurisdiction so conferred in affiliation proceedings shall be exercisable notwithstanding that the child to whom the proceedings relate was not born in that part of the United Kingdom."

12.16 p.m.

I beg to move, "That this House doth agree with the Lords in the said Amendment."

On Tuesday the Amendments made to the Bill in this House were considered in another place, and our Amendment to Clause 27 was agreed to, subject to a further Amendment. It is that further Amendment which I now ask the House to agree to.

Not long after this Bill left us in the summer, the Divisional Court decided the case of Tetau v. O'Dea. In this case the Court affirmed the rule, which had been first established in a decision in 1849, that an English court has no jurisdiction in bastardy proceedings in respect of a child born outside England—at least, unless the mother was domiciled in England at the time of the birth. This Amendment seeks to reverse that rule.

Clause 3 of the Bill covering proceedings in England and Clause 11 covering proceedings in Northern Ireland gave to a woman residing in one part of the United Kingdom the right to proceed for an affiliation order in a court of another part if the putative father was resident in that latter part. The decision in Tetau v. O'Dea cast some doubt on this right, and one of the objects of this Amend- ment is to remove such doubt. Clearly some of the children who were in contemplation when Clauses 3 and 11 were considered may well have been born in a part of the United Kingdom other than the part in which proceedings are to be taken, and this Amendment puts it beyond doubt that there is jurisdiction notwithstanding that fact.

But the Amendment goes further than that. The old rule was to some extent based on the connection between the poor law and the bastardy law and with relieving a parish of the duty to maintain an illegitimate child. It is undesirable in a matter so closely connected with the welfare of a child that a mother, who must be resident in England to have jurisdiction at all, should be debarred from bringing proceedings for maintenance of the child merely because the child was born outside England. This Amendment seeks to provide that the place of birth of the child shall not affect the jurisdiction of the court.

We welcome the Amendment, which makes clear what was the original intention of the Bill. The Amendment establishes beyond doubt that a woman living in Scotland or Northern Ireland can bring proceedings under Clause 3 of the Bill against a putative father if he is resident in England notwithstanding that the illegitimate child may have been born outside England. It is entirely satisfactory to us, and I apprehend—perhaps the hon. Gentleman could confirm it—that so far as the other position is concerned, if it is Scotland and not England, there is still adequate provision by which an English mother could proceed against a Scottish father domiciled in Scotland not withstanding that the child was born in England. I think that position is unaffected by this Amendment, and I think I am right in saying that the Bill as it stands makes it clear that in whatever part of the United Kingdom a woman may be, she can proceed against a father in whatever part of the United Kingdom he might be.

With permission, may I give that assurance. The rule of 1849 never existed in Scotland at all.

Question put, and agreed to.