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Earl Ferrers: My Lords, I do congratulate the noble Lord, Lord Dubs. I think it is the first time today in which he has participated in our discussions. The proceedings have been bereft without him, even though they have been looked after by the noble Baroness with exemplary duty. He makes a very important point. The noble Lord is a man of great perspicacity because he has, I think, found something. I believe that he is right and, if I may, I will ensure that we amend that at a later stage in the Bill. I am grateful to him for his vigilance.

Lord Dubs: My Lords, with the leave of the House, I thank the Minister. It is a real delight.

Baroness Hamwee: My Lords, with the leave of the House, the Minister leapt to his feet so fast--he is obviously getting into practice--but my noble friend and I both have questions on Amendments Nos. 35 and 37.

My first question is to ask the Minister to confirm whether paragraph (f) in the new clause (set out in Amendment No. 37), which refers to both people having had "parental responsibility", covers the situation where one person is the parent of the child and the other is a step-parent. Sadly, there are occasions when the relationship between step-parents--one a natural parent and one a step-parent--has led to domestic violence. That is my first question in relation to subsection (1)(f).

My second question relates to the definition of "domestic violence", which is referred to as being violence or threats of violence from such a person which are likely to be carried out. I am concerned about how it is possible or whether it is appropriate in that context to assess the likelihood of threats being carried out rather than approaching this on the basis of the concern of the person who may be the subject of those threats; in other words, that domestic violence should mean actual violence or threats of violence which give rise to reasonable concern that they will be carried out, thus importing a degree of subjectivity rather than objectivity which may be very difficult to prove.

Earl Russell: My Lords, I thank the noble Earl for these amendments and I echo the question which my noble friend has just asked. But I believe that these amendments will sit well with Part IV of the Family Law Bill and provide a back-up where it is needed. It is a significant contribution to what the Government have done on that subject.

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On Amendment No. 37, I should like to know that I am correct in my reading of the words and that this covers same-sex partners or carers. With that sole question, I welcome warmly these amendments.

Lord Monkswell: My Lords, I wish to continue the line of questioning which the noble Baroness, Lady Hamwee, adopted, in relation to what is meant by "domestic violence". Do the Government include within that term psychological violence as well as physical violence? I bear in mind the recent successful court case where a stalker was prosecuted for psychological rather than physical damage. Is that now included in government thinking about the term "domestic violence"? Does it include psychological as well as physical violence?

Earl Ferrers: My Lords, I apologise for jumping up and so bouncing the noble Baroness, Lady Hamwee, and the noble Earl, Lord Russell, from an opportunity to take part in the debate. I was so excited at being able to give the noble Lord, Lord Dubs, a bit of encouragement that I was accelerated in levitation and I should not have been.

The noble Baroness asked whether a step-parent would be included in these provisions. The full parent and one step-parent are covered by the term "parental responsibility". The noble Baroness was concerned also about whether violence would be carried out and about threats of violence. That depends very much on the case and whether it is a real threat. Obviously domestic violence takes a number of different forms and each case must be considered on its merits.

The noble Earl, Lord Russell, asked me whether the provision covers same-sex partners. It does because it covers cohabitants. If they are cohabiting, they are covered by the provisions of the Bill.

Baroness Hollis of Heigham: My Lords, I apologise for interrupting the noble Earl, but subsection (3) refers explicitly to a man and woman who are not married to each other but are living together as husband and wife. Therefore, it appears that the definition excludes same-sex partners. I hope that what the Minister says is correct, but if it is, the definition "cohabitants" would need to be amended accordingly.

Earl Ferrers: My Lords, I must say that the Opposition are scoring a lot of brownie points today. They are being enormously vigilant. The information which I gave the noble Baroness is wrong and the noble Baroness is right. I apologise for misleading your Lordships. I am very glad that the noble Baroness has corrected me.

I turn now to the noble Lord, Lord Monkswell. He is worried about psychological violence. I cannot think why he wants to be worried about that but he is. He asks whether that is covered by these provisions. I cannot give him a very good answer. It is not ruled out, but psychological violence covers a very wide spectrum.

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It would depend on the nature of the violence. We do not rule out the fact that psychological violence could be covered.

Baroness Hamwee: My Lords, before the Minister sits down, he confirmed that he was wrong to say that same-sex partners are not covered by the term "cohabitants". But will he confirm, as I believe is the case, that they are covered by paragraph (c)?

Earl Ferrers: My Lords, the noble Baroness asks another important question to which the answer is in the affirmative.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 36:

Page 103, line 7, at end insert--
("( ) "It is not reasonable for a person to continue to occupy accommodation if proceedings for possession of the dwelling house have commenced and the person has no defence against those proceedings.").

The noble Baroness said: My Lords, this amendment deals with possession proceedings and the extent to which it is necessary to require a defendant in such proceedings to go all the way through with them, if I can use that expression.

The point was dealt with, although rather late, at the last stage of the Bill on 19th June and the Minister commented on the matter at col. 416. At that time, I argued that it was inappropriate to require people threatened with homelessness and who have no defence to go through with the expense and ordeal of a court hearing where a mandatory possession order is inevitable. Not only will those people incur expense, but so too will everybody else involved. The stress as well as the expense is an important factor in that regard.

Eviction from assured shorthold tenancies is an increasingly common cause of homelessness. The noble Baroness, Lady Hollis of Heigham, referred to that earlier today. Some 11 per cent. of homeless households accepted for rehousing have become homeless because of the ending of an assured shorthold tenancy. The Bill is aimed at making such tenancies the default tenancies, if I can put it that way, of the future.

The Minister said that the department's recent study which evaluated the Homelessness Code of Guidance found that almost all--something like 94 per cent., he said at col. 416--authorities would take a notice to quit or a notice of seeking possession as evidence of impending homelessness. Accepting that, it nevertheless leaves some 6 per cent. or thereabouts which do not take notice to quit and so on as evidence of impending homelessness. Some authorities undoubtedly are still insisting on tenants undergoing the expense and problems associated with a court hearing to gain a possession order before they can be accepted as homeless.

I believe that that approach is counter-productive. I have referred to costs. The load of court business is also increased and I think that requiring tenants to stick it out to the very last, when inevitably they will have to leave, is contrary to the Government's own aim of encouraging landlords to let their properties.

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I tabled the amendment again in the hope that the Government may agree to include some such provision in the Bill which would in no way undermine what they are intending to do. It is a practicable and sensible provision. I beg to move.

7 p.m.

Earl Ferrers: My Lords, the noble Baroness said that she tabled this amendment again to enable the Government to reconsider it. She is right to be concerned. There are always border lines and it is always right to be concerned about those people who fall on the wrong side of the border line. The noble Baroness said that she did not want the inclusion of this amendment to undermine what we are trying to do in the Bill.

The Homelessness Code of Guidance makes it clear that authorities should not require applicants to have to fight possession proceedings where there is no chance of success--for example, when an assured shorthold tenancy is being repossessed at the end of a fixed term--before accepting that a household is being threatened with homelessness. Indeed the recent Department of the Environment study--an evaluation of the Homelessness Code of Guidance--showed that almost all authorities (94 per cent.) would take a notice to quit or notice of seeking possession as evidence of impending homelessness. The noble Baroness, Lady Hamwee, said that about 6 per cent. do not do so. As the accountants would say, the arithmetic stacks up between us.

We have tried to guide the 6 per cent. to accept such orders, but we would not wish to make that mandatory in every case. That is why I am doubtful that we want the proposition advanced in the amendment. There are many different forms of tenancy, and many different grounds for possession. There are many defences which can apply in particular cases, both technical--for example, the proper service of notices--and substantive. In some cases it would be extremely difficult and costly for a local authority to make a decision without going through the facts of each case.

A possession order may take several months to come into effect. We do not believe that it is either necessary or reasonable to expect local authorities immediately to assist people in such a position. We would however expect authorities to be ready to assist people where they have been alerted to the existence of a possession order, and to make appropriate arrangements without insisting that an applicant goes to court. If it were to prove necessary, the Secretary of State could make an order under this clause--with the agreement of the noble Earl, Lord Russell--to ensure that authorities take proper account of possession orders in assessing whether it is reasonable for an applicant to continue to occupy accommodation.

I understand the concern behind the amendment--the noble Baroness is quite right to be concerned--that people with no defence against a possession order should receive timely assistance. However, as the existing arrangements are shown to work well--and we can reinforce the point when we issue new guidance, as we probably shall--I advise your Lordships not to

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introduce a new requirement which, at the margin in a difficult case, would require a local authority to anticipate the decision of the courts. I hope that on reflection the noble Baroness will agree that that is the right course to take. It has worked well and I suggest that it would be better for us to continue with it rather than to include mandatory requirements in the Bill.

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