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The Lord Chancellor moved Amendment No. 30:


Page 20, line 37, at end insert ("and
( ) the conduct of the parties in relation to each other and otherwise.").

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

On Question, amendment agreed to.

Baroness Young had given notice of her intention to move Amendment No. 31:


Page 20, line 38, leave out subsection (7).

The noble Baroness said: My Lords, I should like to say how grateful I am to my noble and learned friend for the series of amendments which he has just moved which meets at least one of the points that I raised at Report stage and I am sure will be regarded as a great improvement to the Bill.

I am a little concerned that he has not dealt fully with the whole question of the balance of harm test which was one of the other issues raised. He says that he has amended the definition of harm in, I think, Clause 59 which includes a child as well as others.

At this late stage of the proceedings, I shall not repeat the arguments that I put forward at Report stage. It is very valuable that my noble and learned friend has moved the amendments which meet a considerable part of my concern. As regards the balance of harm test, I shall read carefully what my noble and learned friend said. The matter may well be taken up in another place.

It is important that definitions should be sufficiently tight so that it is not possible to argue a case of harm which in effect is bogus, in the serious event that someone asked to be removed from the occupation of a house should be brought before the court on the matter.

I do not wish to pursue the matter on this occasion, but to thank my noble and learned friend for the point to which he has agreed.

[Amendment No. 31 not moved.]

The Lord Chancellor moved Amendments Nos. 32 and 33:


Page 20, line 39, after ("harm") insert ("attributable to conduct of the respondent").
Page 20, line 45, after ("harm") insert ("attributable to conduct of the respondent which is").

The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 32 to 39 with Amendment No. 29. I beg to move.

On Question, amendments agreed to.

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Clause 32 [One former spouse with no existing right to occupy]:

The Lord Chancellor moved Amendments Nos. 34 to 37:


Page 22, line 19, at end insert--
( ) the conduct of the parties in relation to each other and otherwise;").
Page 22, line 36, leave out ("(b) and (c)") and insert ("to (d)").
Page 22, line 39, after ("harm") insert ("attributable to conduct of the respondent").
Page 22, line 44, after ("harm") insert ("attributable to conduct of the respondent which is").

On Question, amendments agreed to.

Clause 33 [One cohabitant or former cohabitant with no existing right to occupy]:

The Lord Chancellor moved Amendments Nos. 38 and 39:


Page 24, line 15, at end insert--
( ) the conduct of the parties in relation to each other and otherwise;").
Page 24, line 34, leave out ("(b) and (c)") and insert ("to (d)").

On Question, amendments agreed to.

Lord Irvine of Lairg moved Amendment No. 40:


Page 24, line 34, leave out from ("(c)") to end of line 43 and insert--
("(8) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm if an order under this section containing one or more of the provisions mentioned in subsection (4) is not made, the court shall make the order unless it appears to it that--
(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b) the harm likely to be suffered by the respondent or the child in that event is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.").

The noble Lord said: My Lords, I beg to move Amendment No. 40 and speak to Amendment No. 43 which I also moved on Report.

The amendments are designed to restore the full force of the previous Bill before concessions were made to appease what I previously described, and would continue to describe, as the uninformed minority in the other place.

I yield to no one in my acceptance of the need sometimes for political compromise. What I cannot accept is that such a need existed where there was a clear majority in every party, including that of the noble and learned Lord, for the Family Homes and Domestic Violence Bill in the form in which it left your Lordships' House. At this hour of the night, and because these amendments were fully argued on Report on 4th March, I shall express myself shortly.

The first amendment is to ensure that the balance of harm test is equally applicable in cases where the victims of violence have no strict legal right to occupy the property as it applies to cases where the victims of violence do have such a right. I believe that the Law Commission's view should prevail: that is, that the courts should make an order in favour of the non-entitled applicant when the courts are satisfied that

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more harm would be caused to that applicant or any child than would be caused by not making the order. The plain fact is that under the Bill the courts are being given a discretion to withhold a protection from non-entitled partners even though the balance of harm test is satisfied in their cases.

I welcome the support which the noble and learned Lord, Lord Brightman, felt able to give these amendments on Report on 4th March. He chaired our Jellicoe Committee into the Family Homes and Domestic Violence Bill of the last Session with great distinction. His support on Report, however, was perhaps not in political terms the most cogent for which I could have wished when he was commending these amendments to your Lordships' House. He said that he felt the courts would ensure that justice was done whether or not the amendments were carried. Perhaps I may say to him, with great respect, that that is a lawyer speaking rather than a politician. For my part, I do not feel so sanguine. If the noble and learned Lord on the Woolsack feels that there will be no difference in practice in the court's decisions on his watered-down proposals, then he would be as well to reinstate his first thoughts on the subject for the avoidance of any doubt.

The second of the amendments is likewise aimed at restoring the previous provisions in the Family Homes and Domestic Violence Bill. Under that Bill, ouster orders in favour of non-owners, the victims of domestic violence, could continue for as long as the court thought necessary. Ouster orders in favour of non-owners may now be for six months only, with the possibility of one single extension of six months but no further extension in whatever circumstances.

I believe--as the noble and learned Lord, Lord Brightman, believes, and as the noble and learned Lord on the Woolsack once believed, and perhaps still believes--that judges should have the same discretion as they had under the previous Bill so that the hands of the court should not be tied to arbitrary time limits.

As I said on Report, rare cases will arise in which acute difficulty will be found in rehousing the abused and in particular where couples may be elderly, ill or even terminally ill. If alternative accommodation does not become available within 12 months, under the Bill in its present form the courts are powerless to prevent the individual being turned out into the street. I really do not know what the answer to that point can be and I believe that the present Bill must therefore be wrong in principle.

I submit that this gap in the courts' protective powers leaves the abused and uniquely vulnerable at risk of homelessness. These amendments will fill that gap and I therefore beg to move.

Lord Brightman: My Lords, I am sorry I did not give satisfaction to the noble Lord, Lord Irvine of Lairg, on the last occasion and I will try to do better this time.

May I begin, as I began at the Report stage, by emphasising that the Family Homes and Domestic Violence Bill of the last Session, upon which this part of the Family Law Bill is based, had nothing whatever to do with the saving of the institution of marriage and

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nothing to do with the buttressing of marriage. It was concerned only with the avoidance of anti-social behaviour and violence after a marriage, after a family home, had come to an end. Part III of this Bill has exactly the same purpose. I therefore turn to these amendments.

For convenience I will refer to the earlier Bill simply as the domestic violence Bill, which I think is expressive of the basis of that Bill. All that I respectfully ask now, and all that these amendments are designed to do, is to restore a part of the domestic violence Bill to the form which it took when it was before your Lordships' House on the previous occasion--that is, the part that deals with occupation orders affecting co-habitants who have no legal right to occupy the family home. An occupation order is a purely temporary order for regulating the temporary occupation of the family home after the breakdown of the relationship between the parties. Under the domestic violence Bill a man and a woman cohabiting were equated with a married couple for the purposes of this temporary order.

I wish to submit only two points for consideration. My first point is this. If a couple have set up a family home together and the relationship comes to grief, it is just as necessary to regulate the temporary occupation of the family home whether that home was based on a marriage in church, a marriage in a registry office or an informal relationship. The same stresses, the same risk of anti-social behaviour, the same risk of violence, the same risk to any child, will arise whatever the origin of the family home. Therefore, the court ought to have the same jurisdiction, exercisable to the same extent, in the same way, on the same principles, whatever the origins of the family home. This result will be achieved if Amendments Nos. 40 and 43 are accepted by your Lordships. The jurisdiction of the court will be restored to the form it took in the domestic violence Bill. That will not be achieved if these amendments are rejected.

My second point is this. This House decided in the last Session what form your Lordships wished the occupation order jurisdiction to take. I suggest, with the greatest possible respect to my noble and learned friend the Lord Chancellor, that there is no reason for this House to change its mind at this stage.

Perhaps I may say a brief word in order to record the unusual history of the domestic violence Bill upon which Part III of this Bill is based. A Committee of this House considered the domestic violence Bill over several days in the last Session. It received written evidence from almost 50 witnesses. It heard oral evidence at six meetings. This House considered the Bill at the Report stage in May of last year. There was no Division. The Bill had its Third Reading in June and again there was no Division. The Bill went to the other place. After a Second Reading debate the Bill went to the Select Committee on Home Affairs. It then came before Standing Committee B. The Parliamentary Secretary to the Lord Chancellor's Department told Standing Committee B, according to the Official Report, that the Bill had been "intensively scrutinised" by the Select Committee on Home Affairs. No change was made by Standing Committee B to the provisions affecting occupation orders. No amendment to those

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provisions was even tabled. The Bill was then dropped, for reasons which I would not presume to question. I ask myself: why should we now take it upon ourselves to alter our considered opinion on occupation orders? It was an opinion with which the other place has so far shown no disagreement whatever. Let us therefore send the Bill back to the other place in the form, in relation to temporary occupation orders, which in our considered opinion of last year we thought to be right. That will happen if the amendments are accepted. Let us see what the other place thinks. In my submission, it is far too early to change our minds. I therefore support the amendments.


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