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The noble Baroness said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3, which is grouped with it. Amendment No. 2 is identical to an amendment tabled in Grand Committee and it has been overtaken by an amendment put forward by the Minister.
In Grand Committee, in replying to me, the Minister said that she could be seduced into accepting the amendment. When we subsequently had a meeting with the noble Baroness and her department, I asked her what that would require from me. She said, "Wait and see". In effect, we have the same amendment with a marginal difference in the wording and, for that reason, I can assure the noble Baroness that I shall not press the amendment.
Amendment No. 3 is slightly different. It is also very similar to an amendment that we moved in Grand Committee. However, we took on board some of the concerns that the Minister and the noble Baroness, Lady Anelay, raised at the time and we have tabled a revised amendment using the current wording under Section 33 of Part IV of the Family Law Act, which refers to persons who are or are not entitled, thus slightly limiting the impact of the amendment.
The purpose of both amendments, whatever their form, was to remove some of the discrepancies in treatment in respect of the granting and length of occupation orders, which depend upon whether the people involved in a domestic case have been married or not married. At that time, I put forward the case that it was incongruous to distinguish so heavily between married and unmarried couples because, if for no other reason, so many children are born out of wedlock—that may or may not be undesirable but this is not the moment to make such a judgment—and many unmarried couples have shown a great level of commitment to each other.
In the second part of the Minister's Amendment No. 7 there is a response to my original amendment. Therefore I shall not discuss my amendment at great
Baroness Scotland of Asthal: My Lords, I am most grateful for the way in which the noble Baroness has spoken to her amendment. She needed to do nothing more to seduce me into agreeing with her other than to use the eloquence that she used on the previous occasion.
I also agree with the noble Baroness, Lady Anelay, that Section 41 needs to be considered in the light of a proposal currently being considered under the civil partnership provisions. Your Lordships will see from the Marshalled List that I propose a similar government amendment, Amendment No. 7, which will repeal Section 41.
I believe it would be helpful if I set out the Government's reasons for tabling Amendment. No. 7, which removes the need for Amendment No. 2. As your Lordships will see, we seek to make further changes to the Family Law Act 1996 which we believe are necessary as a result of the repeal of Section 41. In accordance with the kind invitation given to me by the noble Baroness, Lady Thomas, I shall take a little time to explain exactly why and how we have done this, not only for those in the House, but it may also be of interest to others who may come to scrutinise the Bill.
The courts are already obliged to consider a number of issues when dealing with applications for non-molestation or occupation orders. Depending on the type of order sought, they must consider whether the parties before them are associated persons within the definition of the Act; whether the individuals have the legal entitlement to occupy the dwelling house by virtue of a beneficial estate, interest or contract, or any enactment giving them the right to remain in occupation; whether there has been evidence of molestation; and whether there is a need to secure the health, safety and well-being of the applicant and any relevant child. Those issues are comprehensive and objective. They relate to the parties' status and relationship to each other, their rights in relation to the dwelling house and evidence of molestation.
Section 41, however, asks the court, when considering the parties' relationship, to look at a couple—of course, an opposite-sex couple only because same-sex couples cannot marry—and to draw conclusions as to the parties' relationship because they have not married or sought to marry.
In light of the changes we have made to the definition of cohabitants and former cohabitants, to ensure that same-sex cohabiting couples are treated in the same way for the purposes of the Family Law Act 1996 as opposite-sex cohabiting couples and given the proposals in the forthcoming Civil Partnerships Bill, we believe that Section 41 no longer works. For those reasons we believe that it is right to repeal Section 41.
Section 41, of course, deals with cases where the courts are required to consider the nature of the parties' relationship. In practice that probably bites
When considering the removal of an individuals from their home, it is critical that the courts should be able to take into account all the aspects of a couple's relationship. By removing Section 41, I am concerned that the courts will suppose it is not part of their remit to consider the commitment the couple have or have not given to each other. It is true, of course, that the courts may consider this aspect. After all, the wording is sufficiently wide to enable them to do so.
However, I do not wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important. For example, in those cases where the parties have not married, or—if the Civil Partnership Bill is enacted—entered into a civil partnership, and an application is made to oust the owner-occupant from the property by a partner who has no beneficial interest in the property, it is extremely important that the court reviews all the evidence of the relationship between the parties, particularly where the relationship has been of short or sometimes very short duration. That is why I have proposed an amendment to Section 36(6)(e) to include a reference to the level of commitment between the parties, which the court must consider.
I believe that this strikes the right balance between repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. For these reasons, I will not accept Amendment No. 2, as the noble Baroness has indicated, and offer Amendment No. 7 in fair exchange.
I turn now to Amendment No. 3 in the names of the noble Lord, Lord McNally, and the noble Baroness, Lady Thomas of Walliswood. It would standardise the length of occupation orders made under Sections 33 and 35 to 38 of the Family Law Act 1996. The court would be free to make the order for a specific period, or until a specified event, or until further order.
At the moment, the Family Law Act 1996 provides that an occupation order should initially be for a period of a maximum of six months. It then draws a distinction between spouses or former spouses and cohabitants or former cohabitants and parties entitled to occupy a property and those not entitled to occupy a property. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property or if neither spouse is entitled to occupy the property. For
In Committee we discussed an amendment tabled by the noble Baroness which would have standardised the length of the initial occupation order at six months and allowed the court to extend the order on two occasions for a further six months.
Amendment No. 3 is clearly different in its effect, but my objections to it remain fundamentally the same as those I set out in Committee. First, the Family Law Act draws a distinction between spouses and cohabitants with no entitlement—and it is the "no entitlement" that is important—to occupy the property so as to reflect the different levels of commitment involved in marriage and cohabitation. Where a cohabitant is entitled to occupy a property then the Act makes no distinction regarding the provisions concerning the length of the order between spouses and cohabitants. I acknowledged in Committee that these two relationships can often be similar, but they are in fact quite different in their structure and implications for property and many people who do not marry wish to keep their property rights separate. Unfortunately, or fortunately, that is quite often one of the reasons why they choose not to do so. It is not a reflection on the validity of the relationship. It is simply that legal relationships between cohabiting couples and married couples can be different.
It follows that it is just for the law to reflect the difference in the relationship and the likely complexity of financial and property arrangements in the way in which it makes occupation orders. As the noble Baroness said on other occasions, often people will not be married but they will hold property in joint names and they will make no distinction. It is clear that they wish to share what they have one with the other.
Amendment No. 3 would remove all the Family Law Act 1996 limits on the length of occupation orders, leaving it entirely for the court to determine the length of the order, be it for a specific period, until a specified event, or until a further order. The court's powers on occupation orders are extremely far ranging, for example, regulating the occupation of the home, prohibiting or restricting the rights of occupation of one party, requiring a party to leave the home, or excluding a party from a defined area around the home. I have even had a case where one party was excluded from various parts of the same home, so that one party lived upstairs and the other downstairs and they shared the kitchen.
As the noble Baroness, Lady Anelay of St Johns, said in Committee, there can be advantages for the victim in a quick-fix remedy, in that it keeps the offender's eye on the horizon. It is important to remember that occupation orders are meant to offer what hopefully will only need to be short-term protection, and they should not be used as a substitute for ancillary relief proceedings where questions of divisions of property can be properly considered. Sometimes, separating the two parties from each other can be the most cathartic and safest thing for both of
Baroness Thomas of Walliswood: My Lords, I thank the noble Baroness for that long and interesting response. What she said does not address the problems faced by some practitioners in the field and also by voluntary organisations working in the field of domestic violence, which is that the orders can be too short and incapable of sufficient elongation in some cases—particularly in those that she has mentioned—to enable the victim, or the person who needs to be protected, to set up a new life that is satisfactory for her—usually her—and her children. I will go back to the people who have been advising me on this to see whether they want me to go any further. The noble Baroness will understand why I have taken that view. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Breach of non-molestation order to be a criminal offence]:
"ADDITIONAL CONSIDERATIONS, COHABITANTS OR FORMER COHABITANTS: REPEAL
Section 41 of the Family Law Act 1996 (c. 27) (additional considerations if parties are cohabitants or former cohabitants) shall cease to have effect."
"the nature of the parties' relationship".
5.30 p.m.
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