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Division No. 2


Addington, L. Brightman, L. Darcy (de Knayth), B. Graham of Edmonton, L. [Teller.] Hamwee, B. Irvine of Lairg, L. Kilbracken, L. Lawrence, L. Meston, L. Monkswell, L. Russell, E. [Teller.]


Addison, V. Annaly, L. Blatch, B. Chalker of Wallasey, B. Chesham, L. [Teller.] Clifford of Chudleigh, L. Coleraine, L. Courtown, E. Cranborne, V. [Lord Privy Seal.] Elles, B. Elton, L. Faithfull, B. Ferrers, E. Habgood, L. Lindsay, E. Long, V. Lucas, L. Lyell, L. Mackay of Clashfern, L. [Lord Chancellor.] Miller of Hendon, B. Mountevans, L. Northbourne, L. Park of Monmouth, B. Phillimore, L. Shaw of Northstead, L. Simon of Glaisdale, L. Stoddart of Swindon, L. Strathclyde, L. [Teller.] Trumpington, B. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

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11.28 p.m.

Clause 40 [Ex parte orders]:

The Lord Chancellor moved Amendment No. 112B:

Page 27, leave out line 15 and insert ("(3) If the court makes an initial order, it must").

The noble and learned Lord said: My Lords, with this amendment I should like to take Amendments Nos. 112C, ll2D, ll3A and l30A.

My purpose in tabling Amendments Nos. 112B and 112C is to remove a possible anomaly regarding ex parte orders which has been drawn to my attention. In certain circumstances where the need for an order is very urgent it is possible for the court to make an order even when the respondent is not present. When that is done it will be usual for a full hearing, of which all the parties have had notice, to be held shortly afterwards.

If that initial hearing was considered to have made the first occupation order, the six-month time limit on first orders would be taken up by the first order. In addition, if that initial hearing was considered to have made the first order and the full hearing the second order, then applicants under Clauses 31 and 33 could have been limited to occupation orders for a maximum of just over six months instead of just over a year. That was never my intention. By treating the ex parte order and any order made at a subsequent full hearing as one order, it will ensure that the orders taken together will last for a maximum of six months in cases where Clauses 31 and 33 apply and it will be possible for the court to grant one more order also for a maximum of six months at a later date. In this way, applicants will be treated the same whether or not their first application is made ex parte.

Amendments Nos. 112D, 113A and 130A are intended to ensure that individuals can take advantage of the protection offered against domestic violence, even if they live in an unusual home and one which would not come within the legal definition of land. I am thinking in particular about such things as caravans and house-boats but there may be other homes which should also be included. Therefore, I have also included the broad term "structure".

Amendment No. 130A applies this new definition to the Children Act sections introduced by Schedule 6 which allow the abusing adult to be excluded from the home rather than the abused child where an emergency protection or interim care order is made. There are some clauses which use the term "dwelling house" which properly applies to land. For example, Clause 27 deals

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with matrimonial home rights becoming a charge on the property. In these clauses I have not changed the definition of dwelling house. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 112C:

Page 27, line 17, leave out from ("a") to end of line 18 and insert ("full hearing.
(4) If, at a full hearing, the court makes an occupation order ("the full order"), then--
(a) for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant section is to apply as if the period for which the full order will have effect began on the date on which the initial order first had effect; and
(b) the provisions of section 31(10) or 33(6) as to the extension of orders are to apply as if the full order and the initial order were a single order.
(5) In this section--
"full hearing" means a hearing of which notice has been given to all the parties in accordance with rules of court;
"initial order" means an occupation order made by virtue of subsection (1); and
"relevant section" means section 28(10), 30(10), 31(10), 32(5) or 33(6).").

On Question, amendment agreed to.

Clause 57 [Interpretation of Part III]:

The Lord Chancellor moved Amendment No. 112D:

Page 35, leave out lines 12 to 14 and insert--
(""dwelling-house" includes (subject to subsection (3A))--
(a) any building or part of a building which is occupied as a dwelling,
(b) any caravan, house-boat or structure which is occupied as a dwelling,
and any yard, garden, garage or outhouse belonging to it and occupied with it;").

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

Baroness Young: My Lords, in this amendment the noble and learned Lord gives the definition of a dwelling house. There appears to be a new concept in law about what constitutes a house. I am thinking, for instance, of the protesters at the Newbury bypass who seem to have made themselves a house in a tree. As a matter of interest, might that be included in the definition, or am I quite wrong? We need to clarify this point.

The Lord Chancellor: My Lords, I do not believe that the tree itself would be a structure. Of course, one has seen elaborate structures that may be based on trees but I do not think that living in a tree would qualify. It is a caravan, house-boat or structure--my noble and learned friend earlier spoke about the just and generous principle and that would apply here--

    "which is occupied as a dwelling".

My noble friend can rest assured that the Newbury trees are not likely to be covered by this definition.

On Question, amendment agreed to.

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The Lord Chancellor moved Amendment No. 112E:

Page 35, line 20, leave out ("a person") and insert ("an applicant").

The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 112F and Amendment No. 113 which is tabled by the noble Lord, Lord Irvine of Lairg. The amendments deal with two different but related issues to do with the definition of harm. Amendment No. 113ZA changes the definition of ill treatment so that it expressly includes forms of ill treatment other than physical ill treatment for both adults and children. Sexual abuse is limited to children.

Your Lordships may remember that the matter was discussed a little in Committee. We had brought in from the Children Act the definition of "harm" in relation to children which includes sexual abuse and other non-physical harm. The noble Lord asked me whether non-physical would apply to the adults too. There was a difficulty, therefore. Sexual abuse is limited to children and I do not intend to change that. The term is widely understood in terms of children and can include any form of sexual contact. I do not think it would be appropriately applied in the case of an adult.

The only difference between Amendment No. 113ZA and Amendment No. 113 is that Amendment No. 113 would extend the definition of harm for adults to include sexual abuse. As I said, I do not believe that that is necessary or appropriate.

Amendments Nos. 112E and 112F change the definition of harm in respect of an adult applicant. They provide that the harm in question will have to be the result of the conduct of the respondent, although the respondent need not be acting in a way deliberately intended to harm the applicant. "Harm" is used in the balance of harm test and in the question relating to the balance of harm. I believe that, in balancing the harm to the respondent if an order is made against the harm to the applicant if no order is made, it is reasonable that the respondent should be the cause of the harm to the applicant. "Harm" is also used by the court when considering the need to make an ex parte order or attach a power of arrest to an ex parte order. Again, I believe that it is reasonable to link the harm to the actions of the respondents since it is they who will potentially be disadvantaged if the initial order is made in their absence or if they become subject to the power of arrest in such circumstances. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 112F:

Page 35, line 21, at end insert ("attributable to conduct of the respondent,
(b) in relation to a respondent who has reached the age of eighteen years, means ill-treatment or the impairment of health,").

On Question, amendment agreed to.

[Amendment No. 113 not moved.]

The Lord Chancellor moved Amendments Nos. 113ZA and 113A:

Page 35, line 26, leave out from ("ill-treatment"") to end of line 27 and insert ("includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse;").

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Page 36, line 23, at end insert--
("(3A) For the purposes of sections 26, 27, 48 and 49 and such other provisions of this Part (if any) as may be prescribed, this Part is to have effect as if paragraph (b) of the definition of "dwelling-house" were omitted.").

The noble and learned Lord said: My Lords I spoke to these amendments with earlier amendments. I beg to move.

On Question, amendments agreed to.

Clause 58 [Rules, regulations and orders]:

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