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Baroness David: May I ask the noble and learned Lord a question about Amendment No. 18? It may not be possible for him to answer it now and I apologise if it is difficult. I was sent a few amendments by the NSPCC, too late to put them down for today, and I suspect that one of them may have the same affect as Amendment No. 18. It reads:


"Clause 13, page 10, line 16, after the words 'family proceedings' insert—
'or proceedings under Part V of the Children Act 1989'".

I remember that this was discussed in our committee, but, again, it is awkward to answer this now and I am afraid that I have not had time to check it. However, it did occur to me that it might possibly be similar.

5.45 p.m.

The Lord Chancellor: The answer that I can give at the moment is that this does not do all that the NSPCC amendment would do, because the Government's view is that the emergency protection order procedure is special. It is not to be equated with a full family proceedings type of case, and my impression is that the amendment that the noble Baroness has cited to us does go that distance. Without having it to look at in a little more detail, I cannot be absolutely sure, but that is my impression of the previous discussion and of what the noble Baroness has read out. Obviously I shall be glad to have a note of these proposals and write to her after more deliberation.

Baroness David: I thank the noble and learned Lord very much indeed. It is obviously better to leave it for Report Stage. I shall look at it more carefully myself and possibly put down an amendment on Report in order to get a full reply from the noble and learned Lord.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

The Lord Chancellor moved Amendments Nos. 20 and 21:


Page 10, line 29, leave out ("and may be varied or revoked").
Page 10, line 29, at end insert—
("( ) A non-molestation order which is made in other family proceedings shall cease to have effect if those proceedings are withdrawn or dismissed.").

The noble and learned Lord said: Apart from Amendment No. 18, the only amendments that I have to Clause 13 are Amendments Nos. 20 and 21, to which I spoke with Amendment No. 8. With your Lordships' leave, I move these en bloc.

On Question, amendments agreed to.

[Amendment No. 22 not moved.]

Clause 13 as amended, agreed to.

The Lord Chancellor moved Amendment No. 23:


After Clause 13, insert the following new Clause—

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Leave of court required for applications by children under sixteen.
("13A.—(1) A child under the age of sixteen may not apply for an occupation order or a non-molestation order except with the leave of the court.
(2) The court may grant leave for the purposes of subsection (1) above only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 2. This amendment covers the subject matter of the amendments of the noble Lord, Lord Mishcon, which he has not moved; subject, of course, to the point that we have not made it a requirement of leave in respect of 16 and 17 year-old children—a point we discussed—as they can be married. It was thought wise to apply the leave requirement to children under 16, but, subject to that, this amendment covers the subject matter of the amendments tabled by the noble Lord, Lord Mishcon. I beg to move.

On Question, amendment agreed to.

Clause 14 [Ex parte orders]:

The Lord Chancellor moved Amendment No. 24:


Page 10, line 34, leave our ("as may be prescribed by") and insert ("as would otherwise be required by").

The noble and learned Lord said: I spoke to Amendment No. 24 with Amendment No. 6 and to Amendment No. 25 with Amendment No. 8. It might be appropriate, perhaps in connection with clause stand part, that I make some reference to the European Convention, because it is in this connection that Professor Cretney raised a question. I should like to move the amendment and then perhaps say a word in relation to the stand part debate on Clause 14, as amended.

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

The Lord Chancellor moved the Manuscript Amendment:


Page 11, line 4, at end insert—
(" ( ) "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 the rules of court.")

Lord Brightman: As I circulated my own manuscript amendment together with a note to all Members of the Committee this morning, it is right that I should say that I entirely agree to the amendment proposed by the noble and learned Lord, the Lord Chancellor. I have withdrawn my own manuscript amendment.

The Lord Chancellor: My manuscript amendment adopts the line of my noble and learned friend's amendment. It would not be right for me to take the credit for it without acknowledging that very fully.

On Question, Manuscript Amendment agreed to.

On Question, Whether Clause 14, as amended, shall stand part of the Bill?

The Lord Chancellor: Your Lordships will remember that in the evidence, Professor Stephen Cretney raised the question whether the provisions of

24 Apr 1995 : Column CWH17

the Bill might lead to contraventions of the European Convention on Human Rights. His own conclusion was that, having examined the matter, he thought the answer was no. I should just say that I thought it was right to look at this matter.

It is always difficult to forecast in advance what may happen. The European Convention is applied to the circumstances of a particular case. There may be circumstances in the case that went beyond or were not envisaged in the legislation. The best view I can form is that so long as the rules of court provide for service of orders upon respondents—and that is the point with which we have just been dealing—I think it is highly unlikely that the provisions of the Bill properly carried out would lead to any contravention of the convention.

Clause 14, as amended, agreed to.

The Lord Chancellor moved Amendment No. 26:


After Clause 14, insert the following new Clause—

Undertakings

("14A.—(1) In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from the respondent.
(2) No power of arrest may be attached to any undertaking given under subsection (1) above; and the court shall not accept an undertaking under that subsection in any case where apart from this section a power of arrest would be attached to the order.
(3) An undertaking given to a court under subsection (1) above shall be enforceable as if it were an order of the court.
(4) This section has effect without prejudice to the powers of the High Court and the county court apart from this section.").

The noble and learned Lord said: With this amendment I would like to speak also to Amendments Nos. 29, 32, 34, 37, 38, 48, 50 and 54.

Amendment No. 26 inserts a new clause which allows the courts to accept an undertaking from the respondent instead of making an order. This was a point that your Lordships will remember was raised in the deliberations of the Special Public Bill Committee. This is already common practice in the county courts, although the magistrates' courts do not have this power.

The proposed amendment will mean that all relevant courts have the same power. Amendments Nos. 50 and 54 deal with undertakings in relation to the exclusion requirement of emergency protection or interim care orders.

Amendment No. 29 provides that when a court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. The amendment also allows any power of arrest attached to an order to be extended on an application to vary or discharge the order. The amendment is introduced to give the courts greater flexibility concerning the attachment of a power of arrest and will not apply where the power of arrest is mandatory. It is only discretionary powers to which this will apply.

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Amendment No. 32 allows the court to attach conditions before releasing a respondent on bail to secure that he or she does not interfere with witnesses or otherwise obstruct the course of justice. This provision may be of assistance in cases where the court believes that the respondent may attempt such interference.

Amendment No. 48 is a consequential amendment. Your Lordships will remember that this was suggested arising out of the evidence and looking at the way in which the Bail Act operates, but we have not sought to incorporate the Bail Act provisions in the Bill.

Amendment No. 34 adds further clarity to Clause 16(1) and provides that the court should only consider a power of remand under Clause 16 (1) where it has reason to consider that a medical report will be required.

Amendment No. 37 gives the magistrates' courts the same power to make hospital orders under Sections 37 and 38 of the Mental Health Act 1983 as they have in the case of a person convicted of an offence punishable on summary conviction with imprisonment. The superior courts already have this power in respect of civil contempt proceedings. Your Lordships will remember that this point was raised on a note by Mr. Justice Brooke, the Chairman of the Law Commission, towards the end of our proceedings.

Amendment No. 38 clarifies that all courts within the definition of relevant judicial authority shall have the power to deal with contempt proceedings, and that makes plain the general idea that these jurisdictions, subject to the allocation orders and so on, should be comprehensive and unified jurisdictions. I beg to move Amendment No. 26.


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