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Lord Archer of Sandwell: I confess to being a total Hamlet on this matter, but on Second Reading I was very much in agreement with the Law Commission. It was only in the course of that debate, when we heard

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from the noble and learned Lord the Lord Chancellor and subsequently when we heard, in particular, the evidence of Judge Fricker that I found myself hesitating.

Judge Fricker is a judge of great experience who has had much to do with this kind of problem. He seemed to be troubled about two matters which are very much interconnected. One is that we were in danger of distorting this branch of the law when what we should be looking for is a different kind of tort; and possibly a tort where the remedy will have a power of arrest attached to it. That is rather too far ahead for us to discuss in detail at this stage.

The other problem is one adverted to a moment ago by the noble and learned Lord the Lord Chancellor. It seems to me to be very important that these proceedings should be despatched expeditiously. There is no difficulty about the courts deciding whether two people have agreed to marry. They have been doing that at least since Bardell v. Pickwick and, indeed, earlier than that.

However, Bardell v. Pickwick, if I remember, was a case which took rather a long time. It is not the kind of time schedule that we have in mind for these proceedings. I am bound to say that I found myself rather marginally persuaded in the end that the Law Commission was misguided in this and that we should be looking rather to the law of tort.

The noble and learned Lord the Lord Chancellor has suggested a possible compromise and I understand what the noble Lord, Lord Meston, says about the difficulties that we might encounter; but it will certainly dispose of the problem of a long hearing with a great deal of evidence and the construction to be placed upon certain acts and words of the parties.

At this stage, I find myself very much still on the tightrope and will probably abstain, but before we reach Report Stage I hope that it may have been possible to reconsider this and that my noble friend may have approached this in the spirit in which the noble and learned Lord the Lord Chancellor suggested a compromise.

Baroness Darcy (de Knayth): May I join the noble and learned Lord, Lord Archer of Sandwell, on the tightrope for a moment? I found from the evidence, and when the noble Baroness, Lady David, read out her evidence from Victim Support, that most of the people who spoke in favour of including ex-fiancés also very much included those who have or have had a sexual relationship and thought they were equally important. I agree that these are also open to dispute and so I rather followed the path of the noble and learned Lord, Lord Archer, and felt that perhaps we should go for the creation of a tort of harassment.

There is another point. Those giving oral evidence, in particular the police and Mr. McHardy of the Solicitors' Family Law Association, were very much in favour of widening the thing as much as possible to include the stalker as well. I leaned over from the tightrope rather on to the direction of the creation of a new tort of harassment, which would include all these people, but perhaps having said that I will just join the noble and learned Lord, Lord Archer, again.

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Baroness David: I refer the noble and learned Lord to one point, to which he did not respond; that is, what Victim Support said about the fact that it may disproportionately affect some members of ethnic minority groups where formal agreements to marry are customary.

The Lord Chancellor: That is precisely the point that seemed to me to offer a hope of dealing with the matter where formal agreements are emphasised. The real difficulty about this from my point of view is not the theoretical question of whether or not they have agreed to marry, it is the difficulty that may well be involved in proof of that.

If the noble Baroness can construct a reasonable qualifying clause to exclude this remedy from cases in which the evidence on agreement to marry is of such a character as to sabotage or undermine the summary nature of the proceedings, that is really what I have in mind. My approach to the compromise arises precisely out of that point, whereas the noble Baroness says that there is usually some formal agreement to marry in these cases which would be capable of almost instant proof.

Lord Brightman: I have been trying, as the argument developed, to think of some form of wording which could be used. I put this forward as a suggestion before—it may sound rather archaic but it existed in the days when it was necessary to have a writing before you could sue for breach of promise. I wonder whether one could say that they have at any time agreed in writing or in some other formal manner. I put that forward simply for consideration.

Baroness David: I should like to thank all noble Lords and the noble Baroness who have spoken, and also the noble and learned Lord for his careful answer. I would just remind him that Mrs. Justice Hale said:


    "It seems to me the fact that this can sometimes be disputed and/or difficult to prove is not a sufficient reason to deny relief in the very many cases when it is not in dispute or is easy to prove."

I totally appreciate the Lord Chancellor's keenness for a speedy remedy and that the whole point about this Bill is to have things dealt with quickly. I do understand that. I should like to consider the possibility of amending my amendment and thinking about it again, and I shall probably come back at the Report stage. At present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 2:


Page 2, line 2, leave out from beginning to second ("or") in line 4 and insert ("in relation to any child, they are both persons falling within subsection (2) below.").

The noble and learned Lord said: In moving Amendment No.2, I would like to speak at the same time to Amendments Nos. 3, 4, 5, 23 and 41. Amendments Nos. 2 and 3 ensure that an unmarried father who has never had parental responsibility for a child is associated with anyone who has or has had parental responsibility. This may be necessary in cases where, for example, a person having parental responsibility for a child needs to be protected from molestation by the unmarried father of that child.

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Amendment No. 4 inserts as a separate category prospective adopters or adopters of a child and the birth parents and birth grandparents. Under the Bill as currently drafted it is not defined clearly whether adoptive and prospective adoptive parents are associated with the birth parents. Amendment No. 4 therefore clarifies the position and ensures that birth parents and birth grandparents are associated with the prospective adopters or adopters.

Amendment No. 41 is a consequential amendment that adds the definition of an adoption order to Clause 25 of the Bill. Your Lordships will remember that this point about the relationship between adopting parents and natural parents was raised in the evidence and it is right to give effect to it. Obviously in most cases the confidentiality arrangements prevent anything in the way of a relationship, but cases have been drawn to our attention where that has failed and it is obviously important that a summary remedy should be available.

Amendment No. 5 ensures that a local authority is not associated with another person under Clause 2 of the Bill. As the Bill is currently drafted, a local authority could come under the terms of Clause 2(e) and (f) as it could have parental responsibility for a child or be a party to family proceedings. However, it is not intended or appropriate that local authorities should be able to apply for remedies under Clause 2 of the Bill.

Amendment No. 23 introduces a provision similar to that in Section 10(8) of the Children Act 1989 to require that children should only be able to apply for a non-molestation or occupation order with the leave of the court, and that leave should only be granted if the child has sufficient understanding to make the application. However, in the context of this Bill it has not been thought appropriate to extend this requirement to young people aged 16 or 17, particularly if they are married. Such young people are likely to have sufficient understanding to make application under the Bill and it would be inappropriate to insist on a leave requirement in these circumstances. I commend Amendment No. 2 to the Committee.

On Question, amendment agreed to.

5.30 p.m.

The Lord Chancellor: I beg to move Amendments No. 3, 4 and 5:


Page 2, line 6, at end insert—
("(2) A person falls within this subsection in relation to a child if—
(a) he is a parent of the child, or
(b) he has or has had parental responsibility for the child.").
Page 2, line 6, at end insert—
("() In a case where a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976, two persons are also associated with each other for the purposes of this Act if—
(a) one is a natural parent of the child or a parent of such a natural parent, and
(b) the other is the child or any person—
(i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or

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(ii) with whom the child has at any time been placed for adoption.").
Page 2, line 6 at end insert—
("() A body corporate and another person shall not by virtue of paragraph (e) or (f) of subsection (l) above be regarded for the purposes of this Act as associated with each other.").

On Question, amendments agreed to.

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Clause 2, as amended, agreed to.

Clauses 3 to 6 agreed to.

Clause 7 [Occupation orders where applicant has estate or interest etc, or has matrimonial home rights]:


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