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The Lord Chancellor moved Amendment No. 9:


After Clause 19, insert the following new clause:

Power of magistrates' court to suspend execution of committal order

(".—(1) Where under section 63(3) of the Magistrates' Courts Act 1980 a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order of committal shall be suspended for such period or on such terms and conditions as it may specify.
(2) In subsection (1) above "a relevant requirement" means—
(a) an occupation order or non-molestation order,
(b) an exclusion requirement included by virtue of section 38A of the Children Act 1989 in an interim care order made under section 38 of that Act, or
(c) an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.").

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The noble and learned Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 10 and, in particular, to Amendment No. 11 which is in the name of the noble Lord, Lord Meston. Towards the end of the Committee stage there was a discussion about the powers of various courts to suspend the operation of an order for committal for contempt. The general consensus of the Committee was that, subject to the levels of jurisdiction, the powers of the various courts exercising jurisdiction under the Bill should follow the same pattern and that, if the High Court and the county court had powers to suspend, so too should the magistrates' court.

Some doubt was expressed at the end of the proceedings about the precise basis of the county court's jurisdiction in that connection. I am glad to say that the researches which I instituted came to exactly the same conclusion as the research carried out by the noble Lord, Lord Meston. I am most grateful to the noble Lord. His letter arrived at just about the time we concluded our research. Therefore, we have corroboration that we have found the right answer. I arranged for an amendment to be drafted to give effect to that. The only difference between the two ways of doing it is that, in our amendment, I have done it in the Bill so that the legislation is self-contained. The amendment of the noble Lord, Lord Meston, has proceeded by amending the Magistrates' Courts Act 1980. On the whole, I am keen to try to make it a self-contained code with all the relevant information contained therein. For example, there obviously has to be some reference to the Children Act 1989, but the actual powers are specified. Therefore, I propose to move Amendment No. 9 for that purpose while acknowledging the fact that the amendment of the noble Lord, Lord Meston, would also do the job perfectly well. We happen to have done it this way. For the reasons I have given, I believe that our amendment may be preferable. I shall be glad to hear the noble Lord's view in that respect. I beg to move.

1 p.m.

Lord Meston: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for taking the matter to such a stage. I also express my thanks to the noble Viscount, Lord Colville of Culross, who, although unable to be here today, inspired me to look into the matter in more detail.

As the noble and learned Lord said, the position is quite clear; namely, that the High Court and the county court have power to suspend orders for committal, but, curiously, the magistrates' court does not. That was made clear in a decision of the Divisional Court reported in 1969 and the position has remained the same ever since.

In passing, it should be mentioned that on at least one occasion—in fact, I believe it was more than one—the Children Act advisory committee has, in its annual report, expressed the view that that anomaly should be removed generally. It is suggested that the powers and procedural safeguards as regards the High Court, the county court and the family proceedings courts should

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be unified. That cannot be completely achieved within the ambit of the Bill now before the House. But the amendments certainly go as far as they can in that direction.

It is perhaps worth pointing out that, in such cases, the courts have traditionally taken the view that imprisonment or committal is a last resort. Indeed, in a recent decision of the Court of Appeal the county court was held to have been wrong in having failed to consider a suspended committal order. If a county court was wrong not to have considered it, it is doubly curious that, as the law stands, a magistrates' court cannot contemplate it even if it wanted to do so.

Having said that, there is one point I should like to draw to the attention of the House. It concerns the differences between my amendment and that moved by the noble and learned Lord the Lord Chancellor. My amendment specifically covers the breach of any undertaking as opposed to just the breach of any order. As I understand it, the Bill very sensibly—and for the first time—enables the magistrates' court to accept an undertaking. Of course, it is trite law that an undertaking to the court is as enforceable as an order of the court. Therefore, I question why the amendment proposed by the noble and learned Lord the Lord Chancellor does not include the possibility of committal or of a suspended committal order when there is a breach of an undertaking which, as I said, is clearly intended to be enforceable under Clause 16 of the Bill as if it were an order of the court. With that slight reservation, I am happy to support the amendment.

The Lord Chancellor: My Lords, perhaps I may deal with the reservation expressed by the noble Lord. It has arisen partly because the Magistrates' Court Act does not confer on those courts the power to deal with the undertaking in the way set out in our amendment. Clause 16(3) as amended by the Committee says:


    "An undertaking given to a court under subsection (1) above shall be enforceable as if it were an order of the court".

Therefore, the fundamental jurisdiction applies as if the matter in question was an order of the court. In other words, for all practical purposes of enforcement it makes an undertaking given to the court the equivalent of an order of the court. The amendment is framed on that basis. Therefore, where a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order shall be suspended, and so on. Because of Clause 16(3), the idea is that that should apply equally to undertakings.

I shall obviously need to check the position in view of the fact that the noble Lord has raised the matter. However, I have outlined my understanding of the way the process should work. Subject to that reservation, and as I hear no counter voice in respect of my amendment, I renew my motion to move it.

On Question amendment agreed to.

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Clause 20 [Power of magistrates' court to order hospital admission or guardianship]:

The Lord Chancellor moved Amendment No. 10:


Page 14, line 10, leave out from ("requirement"") to end of line 17 and insert ("has the meaning given by section (Power of magistrates' court to suspend execution of committal order) (2) of this Act").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 27 [Magistrates' courts]:

[Amendment No. 11 not moved.]

Clause 30 [Interpretation]:

The Lord Chancellor moved Amendment No. 12:


Page 19, line 38, leave out ("justice of the peace") and insert ("magistrates' court").

On Question, amendment agreed to.

Schedule 3 [Amendments of Children Act 1989]:

Lord Meston moved Amendment No. 13:


Page 24, line 39, after ("living") insert (", or about to live,").

The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 18 which is identical. The amendments would alter the provisions of Section 38A and Section 44A of the Children Act which are both to be inserted by way of the Bill. They refer not simply to another person living in the dwelling house who is able and willing to give the child the care which it would be reasonable to expect a parent to give him, but also to another person living or about to live in the dwelling house.

The purpose of the amendments is to ensure, where appropriate, that the child can remain in the dwelling-house where he has been living, even if the parent or carer is not living there at the time the order is made. It should be possible for another person who is able and willing to care for the child to enter the dwelling-house and to care for the child.

The Bill currently envisages the carer as someone who is presently living with the child. That excludes the possibility of a relation or friend coming to live with the child in the child's home. There will be cases where the child's welfare will be best served by staying in his or her home, close to friends, relations and school. That would mean a relation moving in to care for the child. Such a situation could arise, for example, where the mother of the child has a disability and is living with a man who is a risk to the child. Under the provisions of the Bill the man can be excluded, but as the mother is unable to provide the necessary care alone a relation, perhaps a grandparent, or a friend may move into the dwelling-house to provide care for the child. The child would then remain with its mother in a safe and caring environment. In other words, the amendment would ensure that a responsible adult can move in to preserve the status quo for the child. I beg to move.


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