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Baroness Young: My Lords, in moving the amendments I have taken the advice of Mr. Peter Duckworth. I recognise that they are not complete as they stand. Indeed, were they to be accepted consequential amendments would have to be made to Clauses 30 and 31. Therefore, I recognise the point made by my noble and learned friend.

Perhaps I may say that he spoke with such rapidity when he read his brief on this point that at times I found it slightly difficult to follow all the intricacies of the argument. However, I understood from the noble Lord, Lord Meston, that when the matter was considered by the Jellicoe Committee the arguments were finely balanced.

References were made to conduct and my noble and learned friend has recognised that that is included in this part of the Bill. However, he has not explained, to my satisfaction at any rate, why the present situation is not working and why he has overturned the provisions of the Matrimonial Homes Act in writing this part of the Bill. That was not clear and he did not explain the aim of this part of the Bill.

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I shall read carefully what has been said. I am not entirely satisfied by the answer that I have received. I believe that if we do not get this matter right there could be real injustices created. I shall withdraw the amendment, although I shall probably return to it on Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 109 not moved.]

Clause 31 [One cohabitant or former cohabitant with no existing right to occupy]:

Lord Irvine of Lairg moved Amendment No. 110:

Page 22, leave out line 24.

The noble Lord said: My Lords, in moving Amendment No. 110, I shall speak also to Amendments Nos. 111 and 112.

These three amendments are designed to restore the full force of the previous Bill before concessions were made to appease what I have previously described as an uninformed minority in the other place, a minority that was in fact 20 years out of date.

The Domestic Violence and Matrimonial Proceedings Act 1976, as the noble and learned Lord is well aware, gave protection both to spouses and to unmarried partners against domestic violence. That protection was underpinned by a power in the court to make an ouster order against the violent party.

Amendments Nos. 110 and 111 are designed to restore the Bill to its original form, with which the noble and learned Lord previously agreed in one important respect--that is, to restore the balance of harm test in all cases. Under Clause 28(7), the test for making an ouster order in favour of the partner with the right of occupation against the partner without any such right--for example, against a partner with no legal interest in the property--is to make the order if the order will protect the applicant or a child from significant harm, but not to make that order if as great or greater harm will be caused to the other party or a child from the making of the order. That is what is called the balance of harm test. What is required is for the court to make a detailed appraisal of the consequences of making or abstaining from making an order.

Neither the Law Commission nor your Lordships' House in its previous deliberations suggested that there was anything wrong with the balance of harm test in both classes of case. Our previous Jellicoe Committee was chaired, with great success, by the noble and learned Lord, Lord Brightman, whom I am pleased to see in his place even at this late hour. I hope that he will stand up for the decisions of his Committee on that occasion. Neither the Law Commission nor your Lordships' House before suggested that there was anything wrong with the balance of harm test or that it should not be equally applicable in cases where the victims of violence had no strict legal right to occupy the property.

The new provisions distinguish between orders made in favour of those with an entitlement to occupy and orders made in favour of those with no such entitlement. So the balance of harm test, if satisfied, must result in

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orders in favour of those with rights in the property. But, even if the balance of harm test is satisfied in favour of those without any legal rights in the property, the matter is purely within the discretion of the court.

Under the proposals of the Law Commission, if the court is of the view that the balance of harm test is satisfied--that is, that more harm would be caused to that applicant or any child than would be caused by not making the order--the court must make an order in favour of the non-entitled applicant.

The fact is that the test for non-entitled applicants is being deliberately changed to their disadvantage. The courts will be bound to give effect to the different test in their cases and to hold that they have a discretion to withhold protection from non-entitled partners even though the balance of harm test is satisfied in their cases.

That severely weakens protection for the abused because it consigns to a second-class protection those already vulnerable because they lack property rights. It cannot be said--and I ask the noble and learned Lord on the Woolsack to say if he disagrees--that the two different tests will make no difference in practice. If that is what is to be said, why make the difference? The purpose of these amendments is to give equality of court protection to all victims of domestic violence; and that must be right in principle.

Amendment No. 112 deals with a related but distinct subject. It is aimed at restoring the previous provisions in the Bill in the form in which they left your Lordships' House which hereto have been altered as a sop to a minority of objectors. But the way in which they have been altered here opens up a dangerous gap in the protection which the court may confer on victims of domestic violence.

The previous provisions gave the flexibility of renewing protection for as long as was necessary. Of course, the court would need to be satisfied that the continuance of the ouster order was necessary to protect the victim and any children. Typically, the court might make an ouster order for, perhaps, three months. The reasoning would be that in a domestic crisis the parties need time to reflect on and to take steps to deal with their situation. But if for good reason the three months did not prove to be sufficient, under the old provisions--the provisions which first appealed to the noble and learned Lord--the court had the flexibility to continue its protection for as long as was needed.

Ouster orders in favour of non-owners may now be for six months only with the possibility of one further extension of six months but no further extension whatever the circumstances. I recognise that it may be that in many cases twelve months will, in practice, be adequate. But in the circumstances of such cases in a very sensitive jurisdiction, where the facts of every case vary so infinitely, it is unhelpful to tie the court's hands to arbitrary time limits. The judges should be trusted.

I have little doubt that some cases will arise in which acute difficulty will be found in rehousing the abused party or where the couples may be elderly, ill or even terminally ill. If alternative accommodation does not become available to the abused party within 12 months,

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under the Bill in its present form the courts are literally powerless to prevent that individual being turned out in the street. That must be wrong in principle.

I daresay that there may be sops to the uninformed which may not matter much in practice. Although he did not express himself in that language on Second Reading, that was the general sense of what the noble and learned Lord, Lord Brightman, said on that occasion. But I must submit, with respect, that this is one sop too far. It is repugnant to justice. Those who are in favour of the changes to the previous provisions--the previous provisions in which the noble and learned Lord believed--really have a duty to explain how their object can conceivably be arrived at by insisting on this gap in the courts' protective powers. How can the removal of the discretion to provide protection over an unlimited period of time conceivably strengthen the family or family life?

I suggest that this gap leaves the abused and the uniquely vulnerable at risk of homelessness. I have some difficulty in accepting that the noble and learned Lord really believes that the alterations to the provisions in the previous Bill, now incorporated into this Bill, are genuine improvements. If he thought that the new provisions which he has brought forward are right, why did he not bring them forward in the first place? I have difficulty in accepting the proposition that he is truly persuaded by the arguments of the uninformed minority to which he has acceded. Therefore, I commend these amendments with a greater sense of confidence. I beg to move.

Lord Brightman: My Lords, I support the amendments. I begin by emphasising that the Family Homes and Domestic Violence Bill of the last Session, upon which this part of the Family Law Bill is based, was not directed towards saving the institution of marriage; it was directed towards regulating matters after the marriage had broken down and after a family home has ceased to be a family home. It was directed towards the avoidance of violence between a couple who had set up home together and then split up. Above all, it was directed towards the protection of any child living in the family home. The purposes of Part III of this Bill are precisely the same.

One way of regulating matters introduced by the earlier Bill, and repeated in this Bill, is the making of an occupation order, or ouster order as it is so often called; that is to say, a temporary order regulating the occupation of the family home after the breakup of the relationship between the parties. For those purposes there is no logical reason for differentiating between an unmarried couple who set up home together and a married couple who set up home together. The earlier Bill, therefore, rightly equated an unmarried couple with a married couple for the purposes of that Bill.

That was surely correct. If a couple are living together and the relationship comes to an end, exactly the same problems will arise whether the family home has been set up after a marriage in church, a marriage in a registry office or no marriage at all. Any children that the couple may have will need exactly the same protection in the

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one case as in the other. Therefore, it seems to me that the court ought to have jurisdiction to make the same orders on the same basis whatever the origin of the family home.

Under the Bill that we are now considering there is to be a built-in bias against an unmarried couple who set up home together which did not exist under the earlier legislation. The question before your Lordships is: is it right to introduce that bias? To spell out the bias in broad terms, an occupation order is to have a maximum life of 12 months in the case of an unmarried applicant who does not have property rights in the family home. No such ceiling exists in the case of a married applicant. Further, what I will call the "balance of hardship" is to be weighed differently if the family home was based on a marriage than if it was based on cohabitation without marriage. That does not seem to me to be logical because this part of the Bill is not concerned with marriage or divorce; it is concerned with a family home and the children who live in it. Therefore, I ask myself why different rules should apply to the jurisdiction of the court according to whether the family home was based on a marriage or on cohabitation.

In approaching this part of the Bill and the amendments proposed to be made to it, five factors have weighed with me. First, the distinction between a family home set up by a married couple and a family home set up by an unmarried couple is not one which was recommended by the Special Public Bill Committee which examined the predecessor of this part of the Bill over many days and in great depth. Secondly, it is not a distinction which your Lordships sought to introduce into the earlier Bill which was passed by your Lordships. Thirdly, it is not a distinction which applies to non-molestation orders under the later clauses of the Bill, Fourthly, it is not a distinction which is supported by the Law Society. The Law Society has written to me to say that it supports the provisions of the earlier Bill in preference to Part III of this Bill. Fifthly, it is not a distinction supported by the Family Law Committee of Justice. That committee is chaired by Dame Margaret Booth. Before her retirement, Dame Margaret had immense experience in this field. She was a judge of the Family Division of the High Court for 15 years, from 1979 to 1994.

As a result of those considerations, I have no doubt that I ought to support this group of amendments, which are designed to restore the provisions of the Family Homes and Domestic Violence Bill of the last Session.

I am bound to speak on this matter objectively. I must therefore address one further question which concerns me and on which I may differ from the noble Lord, Lord Irvine. How important are these amendments to the general scheme of the Bill? I am not convinced that in practice it will make a great deal of difference whether the amendments are accepted or rejected. Twelve months--which, as your Lordships have been told, is the maximum currency of an occupation order in the case of a non-property owning cohabitant--should be adequate for sorting out the situation. As regards the balance of hardship, as I said at Second Reading, I feel sure that a judge will always seek to promulgate an

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order that is fair and just and suited to all the circumstances of the case without adopting too legalistic an approach.

In the result, although I certainly support the amendments, I do not think that it will be catastrophic if your Lordships reject the amendments. Above all, I want to see Part III of the Bill placed on the statute book as soon as possible, either with or without the amendments that are proposed.

10.45 p.m.

Earl Russell: My Lords, I agree with every word that the noble Lord, Lord Irvine of Lairg, and the noble and learned Lord, Lord Brightman, have said, and I do not propose to repeat it.

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