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The Lord Chancellor moved Amendment No. 100:

Page 12, line 30, leave out ("mediator") and insert ("Board").

The noble and learned Lord said: My Lords, this relates to an amendment tabled by the noble and learned Lord, Lord Archer of Sandwell, which would provide that contributions in respect of mediation would be referred to the Legal Aid Board rather than to the mediator. I considered this matter and concluded, having discussed it with those involved, that we should give effect to the wish of the noble and learned Lord. Therefore, Amendments Nos. 100 to 102 and 105 are directed to that end. I beg to move.

Lord Elton: My Lords, since there is nobody there to say it, I rise to thank the noble and learned Lord for having incorporated this provision in the Bill.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 101 and 102:

Page 12, line 31, leave out ("mediation, charges or fees") and insert ("costs of providing the mediation, a contribution").
Page 12, line 32, at end insert--
("(3A) If the total contribution made by a person in respect of any mediation exceeds the Board's liability on his account, the excess shall be repaid to him.").

The noble and learned Lord said: My Lords, I have spoken to these amendments. With the leave of the House, I beg to move them en bloc.

On Question, amendments agreed to.

Earl Russell moved Amendment No. 103:

Page 12, line 33, leave out ("may") and insert ("shall").

The noble Earl said: My Lords, with this amendment I also speak to Amendment No. 104. These concern the statutory charge. That is like a charge on a house in the case of a mortgage. It is a machinery to ensure that there is something for paying legal aid. The object of these amendments is to introduce the same procedure as is used in standard matrimonial cases at present.

If the statutory charge is not imposed, there is some anxiety that it may lead to pressure to use mediation, which may put unjustifiable pressure on those who are subject to it. There is a difficulty if legal aid cannot see any way of recovering its costs. In effect, it provides the procedure that we have at present. If there is any reason why we should not apply this provision, I shall listen with a great deal of care. In the meantime, I beg to move.

10 p.m.

The Lord Chancellor: My Lords, as the provision is currently drafted, it gives discretion as to whether or not such regulation shall be made. I believe that it is better that there should be a discretionary power relating to the

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application of the statutory charge for mediation. As the noble Earl and other noble Lords know, there is a good deal of mechanism required in the imposition of the statutory charge. One wants to be sure that it would all be appropriate in respect of the sums involved. Application of the statutory charge is extremely complicated. The Government and the Legal Aid Board will wish to monitor how mediation works in practice before deciding how best to implement the statutory charge in respect of mediation costs.

I speak against Amendment No. 104 at present but not against the intention behind it. I have always intended that when the statutory charge is applied through regulations to mediation in family matters there should be some replication of the statutory disregard which applies in matrimonial matters for advice, assistance and representation. I do not think it appropriate to place that on the face of the Bill as does the noble Earl's amendment. The figure of £2,500 has been in place for some time. At some point it may become appropriate to change it and I do not for one moment imagine that the noble Earl would wish to prevent that, particularly if it were changed upwards. Additionally, I have already indicated the problems which I foresee in introducing the statutory charge in respect of mediation costs. I should like to see the results of the pilot study into mediation before deciding exactly how the statutory charge should apply in that context and before any decision is taken as to the level of disregard.

I have been advised that, through an oversight, the current draft of the Bill does not give the Lord Chancellor the necessary regulation-making power to apply the disregard to the statutory charge in respect of mediation. I therefore intend to bring forward an amendment at Third Reading to rectify that situation. I am obliged to the noble Earl. It was by directing our attention closely to that matter that he brought the point to my notice.

Some flexibility is required. Your Lordships may feel fairly satisfied that if it is feasible there will be some pressure to do it in the machinery of government. To impose an obligation to have that charge in respect of mediation would, I think, be unwise at this stage. One must have regard to many circumstances in deciding whether or not it should be done, and, if so, exactly how it should be done in relation to mediation.

In the light of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell: My Lords, I am most grateful to the noble and learned Lord for the care and thought that he has devoted to this issue. The occasion almost matches the time during the passage of the Child Support Act when the noble and learned Lord accepted, late at night, an amendment that I had not even moved.

I understand entirely his concern about piloting and why he is concerned about discretion to allow things to develop. I had hoped for a few more indications of how that discretion was likely to be used. I believe that we may now legitimately expect that at Third Reading.

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I take the noble and learned Lord's point about uprating. It is a point well taken. But one of the very few cases in which I accept the legitimacy and propriety of the Henry VIII clause is for uprating. In fact, it was what King Henry VIII himself introduced it for. So, in my amendment that is a drafting defect which needs correcting. I have no doubt that the noble and learned Lord will do it. I shall be very interested to see what comes forward at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104 not moved.]

The Lord Chancellor moved Amendment No. 105:

Page 13, line 10, leave out ("subsection") and insert ("subsections (3A) and").

The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 100. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 105A to 105D not moved.]

Clause 24 [Mediation and civil legal aid]:

[Amendment No. 105E not moved.]

Lord Irvine of Lairg had given notice of his intention to move Amendment No. 106:

Page 14, line 12, after ("matters,") insert ("except where either party to the proceedings does not agree to take part in mediation,").

The noble Lord said: My Lords, I shall not move this amendment, on the basis that this is a subject which we shall revisit on Third Reading.

[Amendment No. 106 not moved.]

The Lord Chancellor moved Amendment No. 106A:

Page 14, line 13, leave out from ("proceedings;") to end of line 14 and insert--
("( ) where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable; or
( ) in such other circumstances as may be prescribed." ").

The noble and learned Lord said: My Lords, I spoke to this amendment in the debate on Amendment No. 99. I beg to move.

On Question, amendment agreed to.

[Amendment No. 107 not moved.]

Clause 28 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:

Baroness Young moved Amendment No. 108:

Page 18, line 23, after ("parties;") insert--
("( ) the conduct of the parties;").

The noble Baroness said: My Lords, we have now moved into Part III of the Bill. This particular amendment concerns occupation orders, which, I believe, were formerly called ouster orders. In the debate that we had last Thursday my noble and learned friend the Lord Chancellor acknowledged that conduct is relevant. He said,

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    "I recognise ... that there are situations in which the conduct of married people has relevance. This is particularly so in relation to the consequences of breakdown. The two principle areas where these matters are relevant are in relation to the distribution of property and the arrangements for children".--[Official Report, 29/2/96; col.1663.]

This amendment is related to conduct because Clauses 28, 30 and 31 omit any reference to conduct in the list of matters which the court should take into account. In this respect, they amount to a reform of the Matrimonial Homes Act 1983, where conduct was a factor and where some degree of blameworthy behaviour had to be shown before a man or a woman could be excluded from his or her own home.

In connection with this clause we must bear in mind that Clause 40 empowers the court to make an occupation order ex parte wherever it is "just and convenient" to do so. Thus, under the Bill, a man may be turned out of his house with no advance warning, with no opportunity to defend himself and for no cause associated with his own behaviour. That is not only turning the clock back to where it stood before the landmark decision of your Lordships' House in Richards v. Richards 1984. It is going further even than the courts were prepared to go in those days by offering ouster orders on an ex parte basis.

Amendment No. 108 in fact re-establishes contact in the list of matters to be taken into account under Clause 28(6). In fact, it does no more than restate existing law to curb arbitrary and capricious behaviour by some custodial spouses who are prepared, for example, to use the children in a war over occupation. It is the, "I don't want him under my roof any more" syndrome.

Amendment No. 109 addresses an important issue which is related to the one that I have just stated. Under Clause 28(7), the court "shall", not "may", make the order excluding Party B where it appears that Party A, or any relevant child, "is likely to suffer significant harm" if the order is not made, subject only to the balancing considerations in Clause 28(7)(a) and (b).

What is "significant harm"? The term is not defined save that Clause 57 defines "harm" as,

    "ill-treatment or the impairment of health",
or, in the case of a child, "health or development".

No one wishes to see a prolongation of physical ill-treatment or mental cruelty. But it is all too easy to obtain a doctor's certificate saying, "This patient of mine is in a depressed condition and will improve only if his or her partner leaves the matrimonial home". Understandably, doctors pay no attention to the interests of the other occupants of the household because really they are attending to their particular patient.

I believe that subsection (7) is in fact unnecessary. All matters relevant to the court's decision are comprised in subsection (6), which, with minor exceptions, and subject to the addition of paragraph (d) on conduct, mirror the existing law.

There is no pressure for change from members of the public on this matter, but I believe that there is a real risk of running ahead of public opinion if Clause 28 as it stands becomes law. To exclude someone from his or

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her home for other than strong reasons is a gross violation of civil liberties. The two amendments raise a very important issue and I hope that my noble and learned friend will consider them carefully. I am not proposing anything other than that the law should be as it stands at present, but the law seems to be being altered by the Bill. Indeed, the Bill is weakening it, because it does not include the conduct of the parties. I beg to move.

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