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The Lord Chancellor moved Amendments No. 6:


Page 5, line 44, after first ("and") insert ("housing").

The noble and learned Lord said: I shall speak also to Amendments Nos. 7, 9, 10, 11, 13, 14, 24, 27, 28, 30, 31, 33, 35, 39, 40, 42 to 46 inclusive and 52.

These are all drafting amendments which were raised on consideration of the evidence, and which were prepared in response to questions raised by the Special Public Bill Committee and explained by Parliamentary Counsel in her letter to the Committee.

Amendments Nos. 27, 28, 30 and 31, which remove the word "specified" from Clause 15 in favour of the words "one or more" or "certain" have also been added to this list because they appear to deal with drafting matters. Some people found it difficult to understand what was already in the Bill and we have tried to clarify the situation for them. Whether these are necessary as drafting amendments I am not certain, but it is wise nevertheless to make them. So all of these are properly to be regarded as drafting amendments which do not change any aspect of policy. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7:


Page 6, line 12, after ("is") insert ("as great as or").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 8:


Page 6, line 25, leave out from ("order") to end of line 26.

The noble and learned Lord said: I shall speak also to Amendments Nos. 12, 15, 16, 17, 20, 21, 25 and 36. I first deal with those amendments other than Amendment No. 25.

Amendments Nos. 8, 12, 15, 20 and 36, remove the provisions relating to the variation and revocation of occupation orders from Clauses 7, 9, and 10, and non-molestation orders under Clause 13 of the Bill and replace them with a new Clause 16A. This provides further clarification that an application for the variation or discharge of an occupation order or a non-molestation order may be made by the applicant or respondent; the court can also vary or discharge a non-molestation order made under Clause 13(2)(b) of its own motion.

The proposed new clause also enables the court to vary or discharge a power of arrest independently of the order to which it is attached. This is in order to make it clear to those who might be using only this code just precisely what the position is, although of course it is in accordance with the general law with which ordinary practitioners would be familiar.

Amendments Nos. 16 and 17 extend the ancillary matters which can be included in occupation orders. They give the court power to require either party to take reasonable care of the dwelling house and any furniture or other contents, and to take reasonable steps to keep the dwelling house secure.

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Amendment No. 21 provides for a non-molestation order made in other family proceedings to cease to have effect if those proceedings are withdrawn or dismissed. This will prevent the possibility of the order, particularly when expressed in the terms "until further order" being overlooked by the court and continuing in force despite all other proceedings having been terminated. This is a point that senior district Judge Angel made of a practical kind to which your Lordships would wish to give effect.

Amendment No. 25 was put forward in consequence of a desire on the part of some of our witnesses to have clarified the opportunity of a person, in respect of whom an order had been made without notice to that person, to make representations. Again, practitioners would expect that, but it is right to make it express.

Having considered both comment on this amendment, which we were privileged to get from Judge Fricker to whom I sent the amendments for his comment, and also an amendment proposed by my noble and learned Friend, Lord Brightman, I am proposing not to move Amendment No. 25 in its present form, but to move a manuscript amendment in its place, which I hope your Lordships received, through the kindness of Parliamentary Counsel, shortly before the Committee sat.

I will just read it, to make sure that everyone has the right amendment. Page 11, line 4, at end insert, instead of the amendment that I proposed:


("( ) Where the court exercises its powers under subsection (1) above, it shall afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a hearing of which notice has been given to all the parties in accordance with rules of court.")

In the meantime, however, I formally move Amendment No. 8. I beg to move.

Viscount Colville of Culross: Is it in order to speak to the rest of the amendments in the group? I think that it is. I should only like to say that I would have welcomed the noble and learned Lord, Lord Brightman's amendment rather than Amendment No. 25 because it does appear to make explicit what I believe everybody in the Special Public Bill Committee desired; that is, that after an ex parte order there should be an opportunity for the respondent at least to come back and take part in proceedings of which he has had notice.

The other thing that I welcome in it is, I think, the only reference in the Bill to rules of court. There are a number of matters upon which rules of various courts will have to be made, and to have an explicit reference to rules of court here would point the way to quite a number of other applications of rule-making powers at all levels. I therefore would have supported particularly the noble and learned Lord, Lord Brightman's amendment.

On Question, Amendment No. 8, agreed to.

Clause 7, as amended, agreed to.

Clause 8, agreed to.

Clause 9 [Occupation orders where applicant has no existing right to occupy]:

The Lord Chancellor moved Amendments Nos. 9 to 13:

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Page 6, line 42, leave out ("which") and insert ("by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, and
( ) that dwelling-house—")
Page 7, line 4, leave out from beginning to ("and") in line 5
Page 8, line 11, after ("is") insert ("as great as or")
Page 8, line 20, leave out from ("months") to end of line 21
Page 8, line 27, leave out ("so entitled") and insert ("entitled to occupy the dwelling-house by virtue of that interest").

The noble and learned Lord said: I spoke to Amendments Nos. 9, 10 and 11 with Amendment No. 6.

I spoke to Amendment No. 12 with Amendment No. 8, and to Amendment No. 13, which is also to Clause 9, with Amendment No. 6. So with your Lordships' leave, I shall move Amendments Nos. 9 to 13 en bloc.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Occupation orders where neither party entitled to occupy]:

The Lord Chancellor moved Amendments Nos. 14 and 15:


Page 8, line 36, after second ("spouse") insert ("cohabitant")
Page 9, line 9, leave out from ("months") to end of line 10.

The noble and learned Lord said: There are two amendments to Clause 10. Amendment No. 14 was spoken to with Amendment No. 6, and Amendment No. 15, which was spoken to with Amendment No. 8. With your Lordships leave, I beg to move these amendments en bloc.

On Question, amendments agreed to.

Clause 10, as amended, agreed to

Clause 11 agreed to.

Clause 12 [Additional provisions that may be included in certain occupation orders]:

The Lord Chancellor moved Amendments Nos. 16 and 17:


Page 9, line 39, leave out ("and").
Page 9, line 41, at end insert—
("(d) order either party to take reasonable care of any furniture or other contents of the dwelling-house, and
(e) order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure.").

The noble and learned Lord said: I spoke to these amendments, which are amendments to Clause 12, with Amendment No. 8. Again, with your Lordships' leave I move them together.

On Question, amendments agreed to.

Clause 12, as amended, agreed to.

Clause 13 [Non-molestation orders]:

The Lord Chancellor moved Amendment No. 18:


Page 10, line 19, at end insert—
("( ) In subsection (2) above "family proceedings" includes proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).").

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The noble and learned Lord said: I shall speak also to Amendments Nos. 47, 49, 51, 53, 55, 56 and 57. Amendment No. 18 enables the court of its own motion to make a non-molestation order when an exclusion requirement is added to an emergency protection order under the new Section 44A of the Children Act 1989 contained in Schedule 3 to the Bill.

As the Bill stands, the court would already have such a power in relation to an interim care order as the new Section 38A of the Children Act contained in Schedule 3 falls within the definition of "family proceedings" in Clause 25(2) of the Bill. This amendment therefore ensures that the protection of the child by way of a non-molestation order can be achieved in both situations.

Amendments Nos. 49 and 53 add further clarification to Schedule 3 to the Bill in relation to the term "removal of the child". As currently drafted, the Bill provides that the exclusion will terminate if the child is removed from the dwelling-house. However, it is not intended that a temporary removal for, say, a medical examination or an interview should have this effect. These amendments therefore provide that an exclusion requirement included in an interim care order or emergency protection order will cease to have effect where the local authority removes the child to other accommodation for a period longer than 24 hours. The definition in the amendment is intended to avoid the uncertainty inherent in any more general definition of "temporary removal", and the impossibility of covering each specific type of removal which may or may not terminate the exclusion requirement.

Amendment No. 53, paragraphs (4), (5), (8), (9) and (10), reproduces the new Section 38A(4) to (7) of the Children Act 1989, contained in Schedule 3, in the new Section 44A of the Children Act 1989, also contained in Schedule 3.

Amendments Nos. 51 and 55 enable the court to vary or discharge a power of arrest attached to an exclusion requirement under Schedule 3 on application by a person entitled to apply for discharge of the requirement. The court can do this independently of any other provision in the order.

Amendments Nos. 47 and 53, paragraphs (6) and (7), give the court the power, when a power of arrest is attached to an exclusion requirement in an interim care order and emergency protection order, to make the power of arrest of a shorter duration than the other provisions of the order and also to extend it on an application to vary the order.

Amendments Nos. 56 and 57 enable the court to defer payment of any compensation ordered under Schedule 4 where a transfer of tenancy has taken place between a spouse or cohabitant. Where the transferee would suffer greater financial hardship if immediate payment was required than the transferor would suffer if payment were deferred, the court can order payment on a specified date, on the occurrence of a specified event, or by instalments. I beg to move.

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