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Mr. Jack : The hon. Member for Greenock and Port Glasgow has an unparalleled record in Standing Committee of rightly probing the way in which the measure affects our endeavours to seek maintenance from all absent parents with a particular responsibility, whatever they may do. I certainly would not try to double-guess the answer to the hon. Gentleman's question. However, so that he is not left in doubt, I undertake to raise the matter in the way that he requested and to write to him and again highlight the developing situation. Question put and agreed to.
Clause read a Second time, and added to the Bill.
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New Clause 3
Jurisdiction
.--(1) A child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is--
(a) a person with care ;
(b) an absent parent ; or
(c) a qualifying child,
only if that person is habitually resident in the United Kingdom. (2) Where the person with care is not an individual, subsection (1) shall have effect as if paragraph (a) were omitted.
(3) The Secretary of State may by regulations make provision for the cancellation of any maintenance assessment where--
(a) the person with care, absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the United Kingdom ;
(b) in a case falling within subsection (2), the absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the United Kingdom ; or
(c) in such circumstances as may be prescribed, a maintenance order of a prescribed kind is made with respect to any qualifying child with respect to whom the maintenance assessment was made.'.-- [The Solicitor- General.]
Brought up, and read the First time.
4.45 pm
The Solicitor-General (Sir Nicholas Lyell) : I beg to move, That the clause be read a Second time.
This new clause sets out the geographical framework for the jurisdiction of the Child Support Agency. There is to be a simple and easily understood test of jurisdiction--that is, that all parties to a maintenance application should be habitually resident in the United Kingdom. Habitual residence is a test that is already recognised within family law legislation. The agency's jurisdiction for the present will not cover cases where one or more of the parties is habitually resident outside the United Kingdom. Such cases will be, as now, for the courts to decide. The circumstances in such cases are likely to be complex and therefore more appropriate for the courts to exercise their discretionary powers. Also, it would be essential for the courts to deal with a case where it was necessary to invoke any of the international agreements and conventions which provide for the reciprocal enforcement of maintenance orders. I commend the new clause--
Dr. Godman : Again I ask a brief question. I remind the right hon. and learned Gentleman that new clause 3(2) states :
"When the person with care is not an individual, subsection (1) shall have effect as if paragraph (a) were omitted."
Does that mean that, when a child is taken into care to protect his interests against abuse or allegations of abuse or neglect, the social worker or even the foster parent, if such a child is placed in foster care, could not claim on behalf of that child?
The Solicitor-General : If I have understood the hon. Gentleman's question correctly, he reminds me that subsection (2) states : "Where the person with care is not an individual, subsection (1) shall have effect as if paragraph (a) were omitted."
Subsection (1) states :
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" .--(1) A child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is--(a) a person with care".
Obviously, it would not be appropriate to make a maintenance assessment in respect of such a person if he is not an individual, since the object of maintenance assessments is that individuals should be assessed ; consequently, that is to be omitted. I hope that that is clear.
Dr. Godman : I was concerned that a certain section in the Social Work (Scotland) Act 1968, where a child has been taken into care, places responsibility on the local authority to seek, where possible, maintenance from an absent parent. That is why I made my intervention.
The Solicitor-General : Under the new clause it would not be appropriate to seek maintenance from an absent parent through the Child Support Agency if the absent parent were not habitually resident within the jurisdiction.
Mr. Graham Allen (Nottingham, North) : I am still not clear what the Government are trying to achieve in the new clause. Perhaps the Solicitor- General will be able to help me. Clearly, it is intended to provide that if a parent or child is not habitually resident here, the maintenance assessment cannot be made. If that is the case, perhaps the Solicitor- General will elaborate on what would happen in that eventuality. Ideally, a court maintenance order should then be made so that it can be sent abroad to be enforced. Perhaps the Government are trying to provide that in subsection 3(c), but it is not entirely clear from the wording. If subsection 3(c) is not designed to provide for that eventuality, what is its purpose? What does "habitually resident" mean, and who is to decide on the definition?
The Solicitor-General : "Habitually resident" means that, as a matter of habit or of normal lifestyle, those persons reside in this country. It is a term of art which means just what one would expect it to mean. If those persons live in France or Germany most of the time, that is where they are habitually resident. The case would then involve complexities with which it would be difficult for the Child Support Agency to deal, although the courts are accustomed to dealing with them. For the time being, therefore, we think it wise that those more complex cases should not be foisted upon the agency in its early years, but should be left to the courts to deal with because the courts are experienced. I hope that that makes the situation clear. Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 4
Relationship between maintenance assessmentsand certain court orders and related matters
.--(1) Where an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment is made, the order-- (a) shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such extent as may be determined in accordance with regulations made by the Secretary of State ; or
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(b) where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.(2) Where an agreement of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment is made, the agreement-- (a) shall, so far as it relates to the making or securing of periodical payments, be unenforceable to such extent as may be determined in accordance with regulations made by the Secretary of State ; or
(b) where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.
(3) Any regulations under this section may, in particular, make such provision with respect to--
(a) any case where any person with respect to whom an order or agreement of a kind prescribed for the purposes of subsection (1) or (2) has effect applies to the prescribed court, before the end of the prescribed period, for the order or agreement to be varied in the light of the maintenance assessment and of the provisions of this Act ;
(b) the recovery of any arrears under the order or agreement which fell due before the coming into force of the maintenance assessment, as the Secretary of State considers appropriate and may provide that, in prescribed circumstances, an application to any court which is made with respect to an order of a prescribed kind relating to the making or securing of periodical payments to or for the benefit of a child shall be treated by the court as an application for the order to be revoked.
(4) The Secretary of State may by regulations make provision for-- (a) notification to be given by the child support officer concerned to the prescribed person in any case where that officer considers that the making of a maintenance assessment has affected, or is likely to affect, any order of a kind prescribed for the purposes of this subsection ;
(b) notification to be given by the prescribed person to the Secretary of State in any case where a court makes an order which it considers has affected, or is likely to affect, a maintenance assessment.
(5) Rules may be made under section 144 of the Magistrates' Courts Act 1980 (rules of procedure) requiring any person who, in prescribed circumstances, makes an application to a magistrates' court for a maintenance order to furnish the court with a statement in a prescribed form, and signed by a child support officer, as to whether or not, at the time when the statement is made, there is a maintenance assessment in force with respect to that person or the child concerned.
In this subsection--
"maintenance order" means an order of a prescribed kind for the making or securing of periodical payments to or for the benefit of a child ; and
"prescribed" means prescribed by the rules.'-- [The
Solicitor-General.]
Brought up, and read the First time.
The Solicitor-General : I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Paul Dean) : With this it will be convenient also to consider Government amendments Nos. 21 and 63.
The Solicitor-General : The new clause and the amendments allow us to provide for a smooth transition in matters relating to the amount of maintenance, its collection and enforcement where, in an individual case, an assessment by the agency supersedes a court order or vice versa.
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Mr. Allen : I should like to put on record the Opposition's concern about several of the provisions, although that concern is more transparent in relation to the new clause. We are concerned about the many regulations that are attached to the Bill. Both in Committee and in the other place, reference was made to the fact that the Bill contains literally hundreds of regulatory powers. Perhaps the Solicitor- General will comment in a slightly broader sense rather than focusing solely on the new clause on the concept of extending legislative powers away from the Chamber to elsewhere, such as to Committees.The Solicitor-General : I am happy to comment on that in general terms and do so almost entirely without embarrassment. In the increasing complexity of modern life, it would be foolish for the House to seek to scrutinise every detail of our secondary legislation in the detail with which we properly scrutinise primary legislation. Even if the Government were to show the self-restraint that all Governments purport to show until they come into office, we all know that the legislative burden on the House is heavy. Consequently, when one is dealing with complex and sophisticated matters, it is much more sensible for the House to deal with the principle of the Bill and then, as often happens--it is a wise thing to do if we are to get the provisions right--to put the details of the regulations out for consultation, with plenty of notice, to the interested agencies and specialist bodies that watch the provisions closely, and then to bring them before the House for approval. I have no difficulty in commending that mode, especially in an area such as this, where it is important that we get the detail right, as well as the principle. Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 5
Welfare of children : the general principle
.Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision.'.-- [Mr. Jack.]
Brought up, and read the first time.
Mr. Jack : I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker : With this, it will be convenient to discuss Government amendment No. 8.
Mr. Jack : My noble and learned Friend the Lord Chancellor accepted an amendment that was tabled on the Bill's Third Reading in another place, but made it clear that further refinements would be necessary. New clause 5 is the result of those considerations of the refinements that might be made. In its revised form, it replaces the present clause 2.
Miss Joan Lestor (Eccles) : We welcome the new clause. There have been great discussions about the existing clause 2, which the new clause will replace with wording that is more applicable to the welfare of children.
Throughout our discussions on this Bill, certain comparisons were made with the Children Bill, which is soon to become law. The phrase used was that "the
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interests of the child should be paramount". I should have preferred that definition to the wording of the new clause, which states that the officer"shall have regard to the welfare of any child likely to be affected by his decision."
Nevertheless, we welcome the new clause.
I am, however, anxious to ensure that the principle that the welfare of the child should be considered in the exercise of any discretionary power conferred on a child support officer should relate to the whole Bill. When we discuss clause 43 and the amendments to be tabled to it, we hope that the Government will accept our amendment No. 5, which seeks to change the current rigid level of benefit reduction into a more flexible discretionary power for the child support officers in the case of mothers who feel unable to co-operate with the child support officers. The Minister will have time to consider that point because we have not yet reached consideration of clause 43, but if the Government accept those provisions they would, indeed, be having due regard to the welfare of the child. Perhaps the Government will also reconsider some of the Bill's more punitive aspects because if they do not, as the Bill stands, the welfare of the child will be affected.
Mr. Peter Hardy (Wentworth) : I echo the points made by my hon. Friend the Member for Eccles (Miss Lestor) and ask the Minister whether he is sure that the wording of the new clause will suffice. Although I accept that it is an improvement, it still uses the phrase,
"any child likely to be affected".
The National Society for the Prevention of Cruelty to Children, on the executive committee of which I serve, together with the hon. Member for Chislehurst (Mr. Sims), who gives distinguished service to the society and who will seek to move an amendment later, has drawn a relevant case to my attention. A citizens advice bureau on Merseyside has reported the case of a client being called into the local office of the Department of Social Security and asked to sign a form stating that he was the father of a child and responsible for its maintenance. The child in question was six years old, but the client was unaware of his existence. If the client is unaware of a child's existence, surely it is likely that the officers who are charged with administering the provisions might also be unaware of the child's existence.
In such circumstances, unless we have real assurances that great care will be exercised, not merely is an injustice likely to be done, but a great deal of harm and distress could be caused, especially to second marriages and subsequent families. Although the new clause is an improvement, I wonder whether the provisions are enough to ensure that unfortunate consequences do not arise in many cases.
Mr. Ian McCartney (Makerfield) : I shall not keep the Under- Secretary of State too long because, as someone who supports new clause 5, I merely wish to clarify one point. The way in which the provisions work will become apparent only when the Department issues guidelines about the interpretation of "discretion" and the regulations. Will the Minister confirm that, when the new clause is passed, his Department will publish guidelines on how the officer is to interpret the discretionary powers? In the past, when discretionary powers have been given, it has been known for the Department to issue guidelines that undermine or restrict the way in which the discretionary power can be used.
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Secondly, will the Department provide for welfare rights groups, women's groups, solicitors and others, as soon as practicable after the implementation of the Bill, a report on the types of discretion used in various agency offices so that we can build up a picture of what discretion is used and ensure that it is even-handed in relation to case work? If discretion is not applied properly and in the wide sense in which hon. Members on both sides of the House intend it to be used, will the Government take steps to ensure proper use of discretion so that no decision leaves a child or family with less income than it would have had?For example, in a marginal case a mother may claim that violence could occur if the former partner was reintroduced into the relationship as a result of the agency asking her to disclose information about him. A former partner might seek access as a result of the involvement of the agency in discussions about the matter at hand. Will discretion be in favour of the woman in all circumstances so that the family's benefit is not reduced? She should be given the benefit of the doubt and the officer's discretion should not be curtailed in such a way as to mitigate against the child.
5 pm
Mr. Jack : The debate has been a short but important review of an important change which the Government introduced after the debate in another place.
The hon. Member for Eccles (Miss Lestor) talked about the importance--I think that she used the word "paramount"--of the interests of children. The terms of the new clause show how we have sought to extend the approach used where matters affecting the welfare of the child are clearly prescribed in the Bill to areas where those actions are not so prescribed. I hope that the hon. Lady takes it as a measure of our good intent that we did not resist the amendment in another place but have sought to widen it fully to reflect the importance of the welfare of the child.
The hon. Member for Wentworth (Mr. Hardy) made some interesting and perceptive comments. I hope that he will be able to remain with us for the debates on subsequent clauses. I shall deal later with the way in which the measure will operate, especially with reference to second marriages. It will be incumbent on a child support officer to take into account the welfare of any child. The hon. Gentleman will already have made the bridge in his own mind. I shall deal with that a little later.
The hon. Member for Makerfield (Mr. McCartney) made another important point about how we are to guide people. Child support is still a sensitive area. While we have conceded the point, we still have further thinking to do about the precise nature of guidance to child support officers on carrying out this sensitive work. I give the hon. Gentleman the assurance that I will read carefully his words and ensure that they are properly taken into account.
Mr. McCartney : I am happy that the Minister has given a commitment that the Government are still considering the best way of drafting the advice. Will that consideration include giving organisations involved in looking after children or representing mothers an opportunity to comment on the advice before it is finally published?
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Mr. Jack : If the hon. Gentleman had been with us in Committee, he would have heard me give the assurance on several occasions--I am happy to reiterate it--that in framing the regulations and in our other work on the Bill we shall continue to consult on a wide basis, especially with many of the organisations that have already written to us to make representations. Right hon. and hon. Members will be aware that we have met some of their requirements. We shall certainly consult.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 6
Liability orders : enforcement throughout United Kingdom
.--(1) The Secretary of State may by regulations provide for-- (a) any liability order made by a court in England and Wales ; or (b) any corresponding order made by a court in Northern Ireland, to be enforced in Scotland as if it had been made by the sheriff. (2) The power conferred on the Court of Session by section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court) shall extend to making provision for the registration in the sheriff court for enforcement of any such order as is referred to in subsection (1).
(3) The Secretary of State may by regulations make provision for, or in connection with, the enforcement in England and Wales of-- (a) any liability order made by the sheriff in Scotland ; or (b) any corresponding order made by a court in Northern Ireland, as if it had been made by a magistrates' court in England and Wales.
(4) Regulations under subsection (3) may, in particular, make provision for the registration of any such order as is referred to in that subsection in connection with its enforcement in England and Wales.'.-- [The Solicitor -General.]
Brought up, and read the First time.
The Solicitor-General : I beg to move, That the clause be read a Second time.
New clause 6 introduces a technical provision which will allow enforcement of a liability order throughout the United Kingdom, regardless of where the order was made. It will thus avoid unnecessary and time-consuming reapplication should the liable person move between the separate jurisdictions of the courts of England and Wales, Scotland and Northern Ireland. The provision mirrors existing provisions in the Maintenance Orders Act 1950. It is clearly sensible and I commend it to the House.
Dr. Godman : Am I correct to assume that, when a case against a person who fails to meet his or her obligations reaches the sheriff court, that person could face a period of imprisonment? If so, has the Secretary of State for Social Security apprised the Solicitor-General of any discussions that he may have had with the Secretary of State for Scotland and the Home Secretary about the suggestion that I made in Committee that such periods of imprisonment should be inflicted on a person at the weekends as opposed to in a solid block of six weeks or whatever?
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The Solicitor-General : I do not instantly know whether any such discussions have taken place. I shall find out during our proceedings this afternoon. We shall deal with imprisonment in later clauses. Question put and agreed to.Clause read a Second time, and added to the Bill.
New Clause 7
Right of audience : Scotland
. In relation to any proceedings before the sheriff under any provision of this Act, the power conferred on the Court of Session by section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in sheriff court) shall extend to the making of rules permitting a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.'.-- [The Solicitor-General.]
Brought up, and read the First time.
The Solicitor-General : I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker : With this it will be convenient to take Government amendments Nos. 87 and 88.
The Solicitor-General : Clause 45 currently enables any person authorised by the Secretary of State to have a right of audience and a right to conduct litigation before a magistrates court in connection with any proceedings under the Bill. The House will recall that the Under- Secretary of State for Social Security, my hon. Friend the Member for Fylde (Mr. Jack), said in Committee that we had given further thought to the Scottish position.
The new clause makes analogous provisions for Scotland in relation to civil proceedings before the sheriff, and amendments Nos. 87 and 88 make the necessary consequential amendments to the provisions in clause 53.
In Scotland civil proceedings in the sheriff court are regulated by court procedural rules made under section 32 of the Sheriff Courts (Scotland) Act 1971. Such rules, after appropriate consultation and discussion, are formulated by an independent body known as the Sheriff Court Rules Council and, if approved, are ultimately made by the Court of Session. The new clause extends that power to allow parties to specified civil proceedings in the sheriff court to be represented by a lay person. The new clause is clearly sensible and I commend it to the House.
Dr. Godman : I have one anxiety about new clause 7, which refers specifically to section 32 of the Sheriff Courts (Scotland) Act 1971. That section refers to the power of the Court of Session to regulate civil procedures. It begins by stating :
"Subject to the provisions of this section, the Court of Session may by act of sederunt regulate and prescribe the procedure and practice to be followed in any civil proceedings".
That refers to an ordinance which allows the Court of Session to regulate its procedures by way of an Act dating back to 1540. Sheriffs in Scotland are willing to deal in their courts with professionals who are not solicitors and advocates in, for example, proof cases brought from a children's panel. The sheriff will meet social workers and others in his or her court, and I see no difficulty arising about that.
The new clause refers to people being
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"represented by a person who is neither an advocate nor a solicitor."I hope that that would not prevent such a person, when appearing in the sheriff court, from applying for legal aid. There will be cases involving children and their carers in which a non-professional would not be appropriate and an advocate would need to be employed. I am anxious that the Legal Aid Board in Scotland does not refuse such applications because of the wording of the new clause--
[Interruption.] I hope that Conservative Members will take this seriously because it is an important matter. I want an assurance that the Legal Aid Board will not try to save money because of the wording of the new clause which, apart from that concern, I regard as a reasonable provision.
The Solicitor-General : I listened carefully to the hon. Gentleman's remarks. He pointed out that some provisions are ancient. A happier feature of a civilised society is that provisions that have been standing since, say, 1540 have been so standing because they were sensible even then and have stood the test of time.
The hon. Gentleman's main question referred to what the Legal Aid Board might or might not do in relation to certain applications. He will know that, in certain circumstances, legal aid in the form, for example, of advice by way of representation--for somebody who might need representation because he or she had failed to comply with a liability order or something of the sort--might be forthcoming from the board or the court. It would not be wise for me to give undertakings off the cuff, but I promise to look into what the hon. Gentleman said and write to him with an explanation of the likely practicalities.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
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