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Powers Of Court To Make Orders For The Protection Of The Children Of Persons Cohabiting Or A Child Of Either Of Them

Volume 116: debated on Tuesday 12 May 1987

The text on this page has been created from Hansard archive content, it may contain typographical errors.

`(1) Where on an application for an order under this section the court is satisfied that the respondent has used, or threatened to use, violence against the person of a child of either the applicant, respondent, or both of them and that it is necessary for the protection of any such child that an order should be made under this subsection, the court may make the following order, that is to say an order that the respondent shall not use, or threaten to use, violence against the person of a child of either party to the application, or both of them.

(2) Where on an application for an order under this section the court considers that it is essential that the application should be heard without delay, the court may hear the application notwithstanding—

  • (a) that the court does not include both a man and a woman,
  • (b) that any member of the court is not a member of a domestic court panel, or
  • (c) that the proceedings on the application are not separated from the hearing and determination of proceedings which are not domestic proceedings.
  • (3) Where on an application for an order under this section the court is satisfied that there is imminent danger of physical injury to a child of the applicant, respondent, or both of them, the court may make an order under subsection (1) above notwithstanding—

  • (a) that the summons has not been served on the respondent or has not been served on the respondent within a reasonable time before the hearing of the application, or
  • (b) that the summons requires the respondent to appear at some other time or place, and any order made by virtue of this section and in section 17 of this Act referred to as an "expedited order".
  • (4) The power of the court to make, by virtue of subsection (3) above, an expedited order under subsection (2) above may be exercised by a single justice.

    (5) An expedited order shall not take effect until the date on which notice of the making of the order is served on the respondent in such manner as may be prescribed or, if the court specifies a later date as the date on which the order is to take effect, that later date, and an expedited order shall cease to have effect on whichever of the following dates occurs first, that is to say—

  • (a) the date of the expiration of the period of 28 days beginning with the date of the making of the order; or
  • (b) the date of the commencement of the hearing, in accordance with the provisions of part II of the Magistrates' Courts Act 1952, of the application for an order under this section.
  • (6) An order under this section may be made subject to such exceptions or conditions as may be specified in the order and, subject in the case of an expedited order to subsection (8) above, may be made for such terms as may be so specified.

    (7) The court in making an order under subsection (1) above may include provision that the respondent shall not incite or assist any other person to use, or threaten to use, violence against the person of a child or either or both of them.'— [Mr. Sims.]

    Brought up, and read the First time.

    5.51 pm

    With this it will be convenient to take the following: New clause 2—

    Supplementary provisions with respect to orders under section ( Powers of court to make orders for the protection of the children of persons cohabiting or a child of either of them)—

    'A magistrates' court shall, on an application made by either the man or the woman in question, have power by order to vary or revoke any order made under section (Powers of court to make orders for the protection of the children of persons cohabiting or a child of either of them) of this Act.

    (2) Rules may be made for the purpose of giving effect to the provision of section (Powers of court to make orders for the protection of the children of persons cohabiting or a child of either of them) of this Act.

    (3) The expiry by virtue of subsection (5) of section (Powers of court to make orders for the protection of the children of persons cohabiting or a child of either of them) of this Act of an expedited order shall not prejudice the making of a further expedited order under that section.'.

    New clause 3— Powers of arrest for a breach of an order under Section ( Powers of court to make orders for the protection of the children of persons cohabiting or a child of either of them)—

    (1)`Where a magistrates' court makes an order under section ( ) of this Act which provides that the respondent shall not use violence against a child of the applicant, respondent, or of both of them, the court may, if it is satisfied that the respondent has physically injured the child as aforesaid and considers that he is likely to do so again, attach a power of arrest to the order.

    (2) Where by virtue of subsection (1) above a power of arrest is attached to an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of any such provision of the order as is mentioned in subsection (1) above by reason of that person's use of violence.

    (3) Where a power of arrest is attached to an order under subsection (1) above and the respondent is arrested under subsection (2) above—

  • (a) he shall be brought before a justice of the peace within a period of 24 hours beginning at the time of his arrest, and
  • (b) the justice of the peace before whom he is brought may remand him. In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday, or any Sunday.
  • (4) Where a court has made an order under section 16 of this Act but has not attached to the order a power of arrest under subsection (1) above then, if at any time the applicant for that order considers that the other party to the marriage in question has disobeyed the order, he may apply for the issue of a warrant for the arrest of that other party to a justice of the peace for the commission area in which either party to the marriage ordinarily resides; but a justice of the peace shall not issue a warrant on such an application unless—

  • (a) the application is substantiated on oath, and
  • (b) the justice has reasonable grounds fo believing that the other party to the marriage has disobeyed that order.
  • (5) The magistrates' court before whom any person is brought by virtue of a warrant issued under subsection (4) above may remand him.'.

    On a point of order, Mr. Deputy Speaker. I was in my place in the Chamber when the debate on the Criminal Justice (Scotland) Bill began. I am astonished that I did not hear your remarks. The first thing that I heard was the Minister's name being called.

    Order. I have told the hon. Gentleman—I hope that I do not have to repeat it—that I drew to the attention of the House the fact that Mr. Speaker had reconsidered and had selected the new clauses. I called the hon. Gentleman's name. He was neither within my sight, nor did he respond. We cannot go back now.

    The brevity of my remarks in support of the new clause indicates that there is special business in the House and does not detract from the importance of the proposal.

    The House will be aware that, under the Domestic Proceedings and Magistrates' Courts Act 1978, a woman who is suffering violence or whose children are suffering violence can apply to the court for a protection order, provided that the man causing the violence is her husband and that the children are a product of their marriage. No such facility is available to a co-habitee in respect of herself or her children. If a man inflicts violence upon a woman with whom he is living, and upon their children, that woman is unable to apply to the courts simply because the couple are not married and the children are illegitimate.

    It seems to me that the Bill provides us with an appropriate occasion on which to remedy that defect. My right hon. and learned Friend the Solicitor-General will be aware that the Justices Clerks Society and the Magistrates Association wrote to the Lord Chancellor's Department suggesting that illegitimate children should receive the same protection as the children of a married couple and that this Bill provides the ideal opportunity to ensure that that happens in future. I understand that the Lord Chancellor's Department suggested that the Bill was not the appropriate vehicle for the introduction of the facility, because such a provision would fall outside the long title of the Bill. Indeed, the House may recall that in Committee I tabled a new clause to deal with the matter which was ruled out of order. I therefore discussed the matter with the Justices Clerks Society which produced the present new clauses. I hope that my right hon. and learned Friend will agree that they meet the objections as they are confined to the children of co-habitees and do not refer to the co-habitees themselves. They thus appear to fall within the long title of the Bill.

    I very much hope that my right hon. and learned Friend will appreciate my point—that this would be a valuable extension of the law to offer protection to illegitimate children. After all, the object of the Bill is to remove most of the disadvantages that illegitimate children suffer at present. Despite my short speech and the pressures of business, I hope that my right hon. and learned Friend will feel able to accept the new clauses.

    I support the new clause tabled by my hon. Friend the Member for Chislehurst (Mr. Sims). It is unfortunate that, owing to the circumstances in which we are to deal with the Bill, it cannot be given more careful consideration. In particular, we shall not be allowed the opportunity to say that clause 27 should not have been included. It is an abomination, and in including it, we shall be legislating a lie. That ought to be said before the Bill is passed.

    I, too, very much regret the inclusion of clause 27. I am grateful to my right hon. and learned Friend the Solicitor-General. I understand that he intends to alter some of the more obnoxious aspects of the Bill and that he may be tabling manuscript amendments to do that. We thank him for that, but we still do not like clause 27.

    My right hon. and learned Friend the Solicitor-General is well aware of the grave concern felt by many people in the House and outside that page 1 of the Bill, makes it clear that the principle of clause 1, and, indeed, the general principle of the Bill should be:

    "Parents not being married to have no effect in law on relationships."
    To most of us in the House, that principle is not tenable. The principle of marriage deserves every support because it is under attack from every quarter. Unless we can sustain marriage and keep good family relationships, the whole of our society is bound to suffer. I know my right hon. and learned Friend, and feel sure that those words are not his. Surely, anyone outside the House would be concerned to learn that Parliament was considering introducing legislation to the effect that marriage should have no effect in law on relationships. I beg my right hon. and learned Friend—

    Order. The fault may be mine, but I find it difficult to understand the relevance of the hon. Lady's remarks to the new clause.

    If I am out of order, Mr. Deputy Speaker, I shall certainly not repeat my remarks later. I took my cue from my hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman) and perhaps I was wrong to do so.

    The hon. Lady has beaten me to the punch. Has she concluded her remarks?

    I was about to conclude by suggesting to my right hon. and learned Friend that he take note of what has been said and, indeed, that he take action on it.

    I, too, shall be protective of the time of the House.

    The subject dealt with in the new clause was discussed on Second Reading but not in Committee, where the amendments tabled by the hon. Member for Chislehurst (Mr. Sims) were not called for debate. While I think that it is perfectly proper for the hon. Gentleman to bring these matters before the House again, I believe—and I suspect that this may be the Government's view—that the Bill is not the appropriate vehicle for the change that he suggests. As promised, I considered the matter carefully after Second Reading and concluded that the arguments advanced by the Solicitor-General on Second Reading were essentially sound.

    I accept the hon. Gentleman's argument that the Bill is a vehicle to give illegitimate children legal protection equal to that now enjoyed by legitimate children. But it is not true to imply—I am sure the hon. Gentleman knows this—that such youngsters now have no remedy in English law. There is a remedy, and the amendments are concerned with the question of precisely where that remedy lies. Although I understand the hon. Gentleman's point, I do not feel that this is the right way to deal with the matter.

    If I may try your patience for a second, Mr. Deputy Speaker, I feel that the hon. Member for Birmingham, Edgbaston (Dame J. Knight) was being a little naughty when she said that the words
    "Parents not being married to have no effect in law on relationships."
    embodied the principle of the Bill.

    The hon. Lady made the point that the Bill says that. As was patiently explained in Committee, that is said in the margin note which does not form part of the law of the land. Unfortunately, the margin note is in shorthand, which does not convey the Bill's real intent. It is not true to suggest that the Bill is intended to undermine the institution of marriage. It is unthinkable that the Solicitor-General would bring forward a Bill to undermine the institution of marriage. I cannot conceive of such a thing, and the hon. Member for Edgbaston is naughty to suggest it.

    6 pm

    The hon. Gentleman has just said that this is an inaccurate description of the Bill. Surely, if it is inaccurate, we should put the matter right and make the position clear. I am merely saying that that is what the Bill says as a general principle and, like the hon. Gentleman, I feel that that cannot be right. I am not trying to be naughty. I can be a lot naughtier to much greater effect. I am merely suggesting that it might be wise to straighten this out.

    I am sure that the hon. Lady and I can agree that the margin note is clumsy.

    I am grateful to my hon. Friend the Member for Chislehurst (Mr. Sims) for giving us the opportunity to consider the issues raised in the new clauses put forward by the Justices Clerks Society with, I think, the support of the Magistrates Association. It would not have been possible to listen to what my hon. Friend had to say without feeling sympathy for the object that he sought to serve—to secure for illegitimate children the same protection by way of intervention by court order, if necessary taken speedily and summarily, that is available under existing legislation to legitimate children.

    The new clauses seek to amend the Domestic Proceedings and Magistrates Courts Act 1978. That Act was based on a Law Commission report in which, rightly or wrongly, the view was taken that the new jurisdiction proposed for magistrates courts should be limited to married couples. As my hon. Friend the Member for Chislehurst knows, the main content of the Bill is concerned with the implementation of the Law Commission's recommendations contained in two reports dealing with illegitimacy that have been produced in recent years.

    I have to say—rather reluctantly, I must confess—that it is the Government's view that it would be better that the Law Commission should be involved in any exercise entailing substantial amendment to the Domestic Proceedings and Magistrates Courts Act. My hon. Friend's suggestion will be put to the Law Commission's family law team, which intends to review this aspect of the law in the near future. I can offer that hope and reassurance. I ask the House to resist these new clauses on the ground that to make the suggested change at this stage would be premature and at odds with the majority of the Bill's provisions, which are the result of careful consultation.

    The Law Commission's recommendations have been made as a result of extensive consultation with organisations and people with special interests. No such consultation has been carried out on the proposals in the new clauses. I think that it might be wise to do so. I doubt that I would accede to the advice that I have received if I did not know that the matter will be immediately referred to the family law team and that it intends at an early stage in the near future to review it. I fear that I have to advise the House not to accept the new clauses.

    Since the new clauses bear on the Bill's scope, it would be sad if I were not able to respond to the observations of my hon. Friends the members for Orpington (Mr. Stanbrook), for Lancaster (Mrs. Kellett-Bowman) and for Birmingham, Edgbaston (Dame J. Knight). I shall deal first with the description of the provisions in clause 1. In Committee, my hon. Friends the Members for Edgbaston and for Lancaster made clear their anxiety that no provisions should go forth from the House that might be seen to cast doubt on or to devalue the importance attached to the institution of marriage. Of course, in that regard, there is nothing between my noble and learned Friend the Lord Chancellor, who introduced the Bill, myself, any Conservative Member and any other hon. Member.

    The principle contained in clause 1 is simple. There shall be a new rule of construction—the presumption of illegitimacy when construing a relationship between any two people—the father or the mother—is to be irrelevant. We are talking about the consequences in law of the fact that there has been an illegitimate birth. That is expressed in clause 1, which states:
    "unless the contrary intention appears"
    relationships are to be construed without regard to the marital status of the parents at the time of the child's birth. That lawyer's language is necessary to pave the way for the Bill's main provisions which are designed to relieve illegitimate children from the sins—if one likes to put it that way—of their fathers or their mothers. The Law Commission took the view after careful consideration, and it is the Government's view, that, whatever one may think about the rights and wrongs of engendering children whose birth will be illegitimate, it is wrong to take it out on the children, in the sense that they are subjected throughout their lives to handicaps imposed by law.

    I understand that the margin note—
    "Parents not being married to have no effect in law on relationships."—
    can create the impression about which my hon. Friend the Member for Edgbaston is so naturally and properly anxious. I agree that not everyone who sees the margin note is likely to read the clause and not everyone who reads the clause is likely, on a first reading, to understand it. I offer this reassurance: I am prepared to give an undertaking that, when the Bill is printed as an Act, that shoulder note and, with it, the corresponding entry in the index relating to clause 1 will be deleted and the words "general principle" alone will be substituted. That will show that clause 1 contains the general principle of the Bill.

    I am grateful to my hon. Friend the Member for Edgbaston for having drawn our attention to this matter. It strikes a chord. Perhaps we should have seen it earlier. With her accurate eye for this kind of thing, my hon. Friend has done the House a service. If she is content with that, perhaps we can proceed. The question is whether we intend to continue taking out on illegitimate children the circumstances of their birth. The whole thrust of this part of the Bill is that we will not do so.

    I should like to say something about clause 27, which has been raised. Whatever view one may take and whatever view Parliament may take in future about whether, and if so in what circumstances, artificial insemination by whatever means may be permitted in law—no doubt, we shall take those decisions after consultation has been completed on the Warnock committee's report—the clause simply says that any child who is the result of a birth that is the result of artificial insemination by donor shall not carry for the rest of his or her life the handicap in law of illegitimacy but shall be treated for all purposes in law as the child of the mother and the child of her husband, provided that the husband has consented. That is all that it does. It says nothing about the circumstances under which AID may be permitted in future. In those circumstances I hope that the House will consider that it would be an omission had a Bill dealing with the consequences of illegitimacy said nothing at this stage. Much remains to be debated about the rest of the Warnock report, but that is the purpose of including this provision.

    Is it not the case at the moment that any child born to a couple who are married to each other is automatically assumed, perhaps sometimes wrongly, to be the child of that couple at law? It was our understanding that the position at law now is exactly what clause 27 will bring into law; therefore, it puzzles us why it is in the Bill.

    Whether a child is a legitimate child or an illegitimate child is a matter of law. It is a matter of status conferred by law. The entry in a birth certificate is evidence but is not conclusive evidence of which status is appropriate. One of the matters that I fully understand causes anxiety to certain hon. Members is that clause 27 has the consequence that an entry in a birth certificate shall not reveal the scientific facts. The other side to that aspect is that a birth certificate at present contains only that which Parliament has said it shall contain. In other words, the column headed "Father" in a birth certificate is intended to provide a space for the entry of that person who, by the definition that Parliament has imposed, constitutes the father. If clause 27 is enacted, that definition will be enlarged. I do not believe that this is really at the head and forefront of what we have to decide.

    Is my right hon. and learned Friend confirming that henceforth, on a birth certificate, it will be possible for the name of the man who is the husband of the child's mother to be entered as the father, which may be untrue, and that therefore, we might be legislating for a lie?

    I do confirm that. However, I do not confirm the consequences that my hon. Friend says will follow, because what will be entered in the birth certificate in those circumstances will be consistent with what Parliament has authorised to be entered. As a matter of practice, it is well recognised that, in many cases where a child has been born as a result of artificial insemination by donor, the child's name is entered in the birth certificate as the child of the mother who gave birth. That is a matter of practice. Nor is it possible in most cases for that to he detected. Where the medical advice to couples who are infertile has been to continue to have sexual intercourse with each other after artificial insemination by donor has taken place, it will not he possible to determine from which father the conception has taken place.

    My hon. Friend is absolutely right in saying that, if "father" is interpreted as meaning the father in wedlock of a child, there will be some deception, I suppose one could say. However, we have to look at whether there is some irregularity at law. If Parliament has so defined "father" in the context of a birth certificate, all that will be entered is the name of the person that Parliament has ordained shall be entered. I respectfully say that this should not be at the forefront of the argument. The argument centres around whether artificial insemination by donor should be permitted at law and, if so, under what circumstances. As to that major issue, Parliament will have the opportunity to express its view at a later stage, as I have already indicated. The clause merely says that if and when there is birth as a result of AID, the resulting child—and after all, it is the child we ought to have regard for primarily—shall not carry the handicap of being illegitimate in the eye of the law.

    6.15 pm

    I shall not yield to the temptation to react to all the points that have arisen as a result of the wide-ranging debate on my new clause, save to say that I made my own views on clause 27 clear in Committee and that I in no way resile from them. I am naturally disappointed that my right hon. and learned Friend the Solicitor-General does not feel able to accept the new clauses but I am grateful for his helpful and sympathetic comments. In the light of his comments, I beg to ask leave to withdraw the new clause.

    Motion and clause, by leave, withdrawn.

    Order for Third Reading read.—[Queen's consent, on behalf of the Crown, signified.]

    6.16 pm

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

    We have carefully considered the Bill in Standing Committee and again today and I believe that I would be wearying the House if I were to do more than formally move its Third Reading.

    Question put and agreed to.

    Bill accordingly read the Third time, and passed, with amendments.