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Lord Simon of Glaisdale: My Lords, I venture to second this amendment although I shall not repeat the reasons that have been given by the noble Baroness, Lady Young. Having been retabled, Part III is completely wide open to amendment. On Second Reading and again in Committee, I ventured to deprecate any attempt to rewrite it or even to do anything far short of that. On the other hand, I also ventured to approve the slight adjustments that my noble and learned friend had made in the Bill as it emerged from the Jellicoe Committee last Session. I deprecated attempts at wide amendment partly because that might adversely affect the Jellicoe procedure and partly because that Bill had been closely examined by the Jellicoe Committee.

However, in my submission, this amendment is justified--indeed, it is called for. In invoking conduct, it brings this provision into line with Clause 9, where conduct is especially mentioned as relevant in the case of orders precluding divorce. Conduct is also statutorily relevant when one comes to such matters as financial provision orders or property orders. Including conduct here brings this provision into line with those others.

There is also a technical reason which I hope your Lordships will allow me to put forward. It is a technical rule of statutory construction which is called the ejusdem generis rule. It is a rule of common sense. It says that, where there is a general provision and particular instances associated with it, the general provision will be construed in the light of the particulars. If there were an Act of Parliament dealing with, for example, the transport of animals and it referred to, "cows, sheep and other animals", the phrase "other animals" is wide enough to include menagerie animals, but the court, applying common sense, would say that Parliament could not have intended that and that "other animals" must be construed in the light of the cows and the sheep and might, for example, include domesticated goats. That is the question here. One sees the words "shall have regard to all the circumstances". If it stopped there it would certainly be broad enough to include conduct. However, it goes on to particularise (a), (b) and (c). Those matters would not necessarily be cognate with conduct. If one wanted conduct to be considered in all the circumstances, having particularised three one must add the fourth. Therefore, I support the amendment.

10.15 p.m.

Lord Clifford of Chudleigh: My Lords, I repeat my support of the noble Baroness in both amendments. I do not mind reiterating the Richards case, because what the judge has to say about that is worth noting. He felt that,

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having granted Mrs. Richards' application, he had to make what he described as a thoroughly unjust order. The judge expressed disgust by saying:

    "Justice no longer seemed to play any part in this branch of the law".

We are discussing the same branch. The matter would have remained there had not the noble and learned Lord, Lord Hailsham of St Marylebone, introduced the need for a degree of blameworthy behaviour when the decision was appealed. I am grateful to Dr. Stephen Cretney of All Souls College Oxford for bringing this matter to my attention. I know that he has advised others in this House.

Part III of the Bill removes the requirement for the court to have regard to the conduct of the parties before making an order. Instead, it adds an entirely new balance of harm test which will dictate when an order should or should not be made. There is no mention of justice or reasonableness in the proposed balance of harm criterion. One wonders if there is any valid reason for leaving it out. After all, justice and reasonableness are now given prominence in Schedule 2. Your Lordships will note that from Amendments Nos. 120A and 126D.

The courts have made it clear that an ouster order is a draconian measure. That seems to me to be plain commonsense. Do we not need more than a mere balance of harm test? Do we not need to have some misbehaviour before we require a court to eject a party? We should be most grateful to the noble and learned Lord the Lord Chancellor for his Amendment No. 112F which goes some way to meet this point. One wonders whether it may go a little further. If it is asserted that a child is being considered, the mere presence of the respondent may be enough to have him ejected. The definition of "harm" in the case of a child extends to the impairment of development, which is very different from domestic violence.

The noble Baroness has already mentioned medical opinions. In practice, it would not be difficult to secure a medical opinion that the presence of one party in a home damaged the health of a child. At the very least, the harm test should go. If conduct is restored, the harm test adds nothing and can be removed. Part III, and particularly these clauses, is not chiefly about domestic violence. In my reading of this part of the Bill I am unable to find the word "violence". It may be there and I should be grateful if someone would point it out to me. In any event, I support the noble Baroness.

Lord Meston: My Lords, this important question was considered extensively during the Jellicoe Committee stage of the Family Homes and Domestic Violence Bill, as it was, now substantially restated in this part of the Bill. The arguments were finely balanced, but my recollection is that in the end the decision was to remove express reference to conduct and to prefer to focus on the effects of conduct or misconduct, hence the reference to "health, safety or well-being" in subsection (6)(c).

The thinking was that under the existing system-- I can confirm this to some extent from personal experience in practice--references to conduct in the

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Matrimonial Homes Act 1983 tend to encourage sometimes exaggerated allegations of misconduct, typically by the applicant to persuade the court to grant an ouster order. The intention, as I have already said, of the Committee in agreeing the formulation which is reproduced in the Bill was that rather than look at conduct itself, it was more appropriate and realistic to focus upon the effect of misconduct.

I have no doubt that, as under the existing law, ouster orders will continue to be regarded as drastic orders of last resort. It will undoubtedly continue to be the position that ex parte ouster orders will be extremely rare.

The Lord Chancellor: My Lords, Amendment No. 108 seeks to include conduct as one of the specific criteria the courts must consider when deciding whether to make an order regulating the occupation of the home under Clause 28(3). Under Clause 28(6) the court is instructed to have regard to all the circumstances. It will thus be able to take conduct into account whenever it considers it right to do so.

There are also three specific factors to which the court is to have regard. These are the relative housing needs and resources of each of the parties, their financial resources and the effect of any decision by the court to make an order or not on the health, safety and well-being of the parties or any relevant children.

The reason for that focus is to concentrate the mind of the court on the effect that any order it may make will have on the parties, and the effect it will have if they continue to live in the current situation. That does not mean that conduct is not relevant. It often will be. Clause 28 recognises that.

In addition to the three factors that I have mentioned, where it appears to the court that the applicant for the occupation order, or any relevant child, is likely to suffer any significant harm if an order containing one or more of the provisions in Clause 28(3) is not made, the court has to apply the balance of harm test.

When the test is satisfied the court has a duty to make an order under Clause 28(3). Amendment No. 112F, which I have tabled and to which the noble Lord, Lord Clifford of Chudleigh, referred, changes the definition of "harm", taking account also of the amendment which was tabled in Committee by the noble Lord, Lord Irvine of Lairg, so that harm to the applicant must be attributable to the conduct of the respondent, (although not necessarily deliberately) so conduct in those cases is clearly important and taken into account. However, for the reasons I have given, that does not fit well into the subsection proposed by my noble friend Lady Young.

The effect of Amendment No. 109, which I assume my noble friend intended us to have regard to at this time also, would be to remove the balance of harm test where the applicant, whatever the marital status or relationship to the respondent, was entitled to occupy the property. The balance of harm test requires the court to consider whether there will be significant harm to an applicant or child if no order is made. If the court

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concludes that there will be such significant harm then it considers what significant harm there may be to the respondent or the child if the order is made.

The court is then required to balance the two and if the harm to the applicant or child is greater than the harm to the respondent or child the court must make the order. The purpose of this test is clearly to focus the court on the effects both of its actions and on the domestic situation of the parties. By removing the test the court's emphasis would be on different areas, and without the addition of the balance of harm test Clause 28(6) could operate to give undue weight to the economically weaker party, which would be the opposite of what my noble friend and the noble Lord, Lord Clifford, have in mind.

Additionally, the test or questions of a similar nature are part of each of the clauses dealing with occupation orders. This amendment removes the test only from that clause which deals with an applicant who is entitled to occupy the home by virtue of having some property interest in it. It would therefore create the anomaly that a court would sometimes be under a duty to make an occupation order for a former spouse who had no interest in the property, but would have no such duty to make an order for a former spouse or spouse who had such an interest. Taken together, the two amendments would have the effect of requiring the court to consider conduct before any order was made under Clause 28, but not under any of the other clauses dealing with occupation orders. That would be a clear anomaly.

For the substantial reasons that I have outlined, I suggest that the amendments are not appropriate in the circumstances of this case and, if given effect to, would create considerable anomaly. The matter was examined carefully in the committee chaired by my noble and learned friend Lord Brightman. The report of its proceedings is available. Amendments Nos. 108 and 109 have the effect which I have sought to describe.

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