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Division No. 3

CONTENTS

Attlee, E.
Barnett, L.
Brightman, L.
Darcy (de Knayth), B.
David, B. [Teller.]
Graham of Edmonton, L.
Hylton, L.
Irvine of Lairg, L.
Lawrence, L.
Mackie of Benshie, L.
Meston, L.
Monkswell, L.
Russell, E. [Teller.]

NOT-CONTENTS

Addison, V.
Blatch, B.
Boardman, L.
Brentford, V.
Brigstocke, B.
Burnham, L.
Carnock, L.
Chalker of Wallasey, B.
Clark of Kempston, L.
Clifford of Chudleigh, L.
Coleraine, L.
Courtown, E.
Dean of Harptree, L.
Elles, B.
Elton, L.
Faithfull, B.
Ferrers, E.
Gilmour of Craigmillar, L.
Habgood, L.
Hamilton of Dalzell, L.
Harmar-Nicholls, L.
Harmsworth, L.
Harvington, L.
Henley, L.
Hooper, B.
Howe, E.
Inglewood, L.
Leigh, L.
Lindsay, E.
Long, V. [Teller.]
Lucas, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Miller of Hendon, B.
Montgomery of Alamein, V.
Mountevans, L.
Northbourne, L.
Northesk, E.
Park of Monmouth, B.
Perth, E.
Ripon, Bp.
St. John of Bletso, L.
Shaw of Northstead, L.
Shrewsbury, E.
Simon of Glaisdale, L.
Skelmersdale, L.
Stoddart of Swindon, L.
Strange, B.
Strathclyde, L. [Teller.]
Trumpington, B.
Tugendhat, L.
Vinson, L.
Wade of Chorlton, L.
Wilcox, B.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

11 Mar 1996 : Column 713

9.29 p.m.

The Lord Chancellor moved Amendments Nos. 41 and 42:


Page 24, line 38, after ("harm") insert ("attributable to conduct of the respondent").
Page 24, line 41, at end insert ("attributable to conduct of the respondent which is").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.

On Question, amendments agreed to.

[Amendment No. 43 not moved.]

Clause 35 [Neither cohabitant or former cohabitant entitled to occupy]:

The Lord Chancellor moved Amendments Nos. 44 to 46:


Page 26, line 25, after ("child;") insert--
( ) the conduct of the parties in relation to each other and otherwise;").
Page 26, line 29, after ("harm") insert ("attributable to conduct of the respondent").
Page 26, line 32, at end insert ("attributable to conduct of the respondent which is").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 28. I beg to move.

On Question, amendments agreed to.

Clause 42 [Ex-parte orders]:

The Lord Chancellor moved Amendment No. 47:


Page 29, line 14, after ("child") insert (", attributable to conduct of the respondent,").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 28. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 48:


Page 29, line 26, leave out ("initial order") and insert ("order by virtue of subsection (1)").

The noble and learned Lord said: My Lords, Amendments Nos. 48 and 59 are drafting amendments. The first concerns an amendment to Clause 42(3) made at Report stage in relation to ex-parte orders. As drafted, this would have the effect of preventing the provision that the respondent should be given an opportunity to make representations in relation to an ex-parte order as soon as is just and convenient at a full hearing from applying to non-molestation orders. That was certainly not my intention. The first amendment corrects the position.

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Amendment No. 59 is a drafting alteration to Schedule 7 arising from a renumbering of subsections following earlier amendments. I beg to move.

On Question, amendment agreed to.

Clause 44 [Arrest for breach of order]:

The Lord Chancellor moved Amendment No. 49:


Page 30, line 24, after ("child") insert (", attributable to conduct of the respondent,").

The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 49, 50 and 51 with Amendment No. 28. I beg to move.

On Question, amendment agreed to.

Clause 59 [Interpretation of Part IV]:

The Lord Chancellor moved Amendments Nos. 50 and 51:


Page 38, line 6, leave out ("an applicant") and insert ("a person").
Page 38, leave out lines 8 to 10.

On Question, amendments agreed to.

Schedule 1 [Arrangements for the Future]:

Lord Coleraine moved Amendment No. 52:


Page 41, line 13, after ("has") insert ("wilfully").

The noble Lord said: My Lords, in moving this amendment, I speak also to Amendment No. 53, which is also in my name. My purpose in speaking on these amendments is to question my noble and learned friend on the drafting of a peculiarly sensitive part of the Bill. As noble Lords will recall, the requirements concerning the arrangements for the future have to be satisfied before a divorce can be obtained. I shall read from Clause 9(5) so far as is relevant:


    "If the court is satisfied, on an application made by one of the parties after the end of the period for reflection and consideration, that the circumstances of the case are--


    "(a) those set out in paragraph 1 of Schedule 1,


    "it may make a divorce order or a separation order even though the requirements of subsection (2) have not been satisfied"
as regards the arrangements for the future.

Again, as far as relevant, the first exemption in Schedule 1 is that,


    "The circumstances referred to in section 9(5) [include that] the applicant has made an application to the court for financial relief and has complied with all requirements of the court in relation to proceedings for financial relief, but--


    (i) the other party has delayed in complying with the requirements of the court or has otherwise been obstructive".

Dealing with the first amendment, that puts the word "wilfully" before "delay". It seems to me that the delay may be outside the control of the party and therefore an element of culpability ought to be imported into the Bill. I go a bit further and ask my noble and learned friend exactly what he has in mind. The normal requirement of a court will be to do something within a certain time. The failure to do something within a certain time does not come within the heading of "delay". If that is what my noble and learned friend has in mind, I would have thought the words would have been "the other party has failed to comply with the requirements of the court".

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The other point raised by Amendment No. 53 is to inquire as to the meaning in this context of "obstructive". What sort of things does my noble and learned friend consider that the word would cover? I have provided that the other party has been obstructive "of the court process". The word "obstructive" is a very vague one and seems capable of being used in a number of ways. I shall be grateful if my noble and learned friend can explain what is in mind here. I beg to move.

The Lord Chancellor: My Lords, my noble friend has drawn to our attention Amendments Nos. 52 and 53. It might be useful if I turn first to Amendment No. 53, which sets the scene. There are circumstances--for example, not responding to correspondence from the applicant's solicitors or refusing to instruct his or her solicitor so that matters may progress--where one party is being obstructive to the applicant without necessarily being obstructive of the court's process. I believe that the court, which will have before it all the papers relevant to the case, should be entitled to make its own judgment, taking into account all the circumstances of the case, as to whether behaviour has been obstructive or not. I am also concerned that, by requiring the court to make a judgment as to whether behaviour has been obstructive "of the court's process" rather than other aspects of obstruction, another proposition is introduced which the delaying party could use to create further delay.

The object is to try to ensure that that party does not without proper reason drag out the process of having the arrangements made. The idea behind the exemption is therefore reasonably clear. Any form of obstruction, which the court regards as simply obstruction, could be taken into account.

In relation to Amendment No. 52, the court is likely to have to undertake lengthy investigations into the state of mind of those parties who have delayed in complying with the directions of the court to establish whether that delay was wilful. Your Lordships will be aware that questions which relate to the state of mind of a person are always difficult to determine. I heard recently of a case where one party to a marriage had avoided paying maintenance to his wife for some five years because he happened to be on business trips every time the court was to have a hearing to set the level of his maintenance obligations or he was due to file relevant papers in order to comply with directions. I am sure that your Lordships have come across such cases--perhaps not involving a delay of five years, because that is exceptional, but I thought that it might therefore be of particular interest. The only time when the business trips did not interfere with the husband's appearance in court or prompt compliance with court directions was the day before the time available for him to appeal against orders made in his absence was due to expire. He then seemed miraculously to be at home. On the face of it, that may appear to be wilful delay, but how is the court to prove or judge wilfulness against coincidence? It may just have happened that his employers arranged their business in that extraordinarily coincidental way.

It must be remembered that, when considering questions in relation to the application of Schedule 1, the court will have before it all the papers relevant to

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the case. It will be able to see when and where delay has arisen and whether there was a good reason for delay and so judge the merits of the application for exemption on the basis of the facts before it. I do not believe that a test of wilfulness is necessary, as this may lead to many protracted appeals to the detriment of the parties and the children when the court will have available to it the sort of information which would enable it to make a fair and just decision on the issue of delay.

I think that it is reasonably plain that the purpose of the schedule and the provisions connected with it is to ensure that, unless there are really exceptional circumstances, the arrangements are complete before the divorce order is pronounced. That is the common sense of the matter. What is being attempted in this part of the schedule is to make sure that, if the reason why the arrangements have not been made is simply because of a delay without good reason--that is, obstruction--that will not be allowed to delay the process indefinitely. That seems a sensible balance in a difficult area. I hope that that has sufficiently answered the probes which my noble friend directed to me and that he will feel able to withdraw the amendment.


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