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Family Law Bill Hl

Volume 569: debated on Thursday 22 February 1996

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Consideration of amendments on Report resumed.

5.20 p.m.

had given notice of his intention to move, as an amendment to Amendment No. 1, Amendment No. 3:

Line 6, leave out ("may have broken down") and insert ("is in crisis").

The noble and learned Lord said: My Lords, there has been a general welcome for my noble and learned friend the Lord Chancellor having accepted the suggestion of the noble Lord, Lord Stallard, that there should at the outset be a statement of principles to cover the Bill. I deplored one substantial omission earlier and I have made suggestions of verbal improvements. However, there is still one striking lacuna in relation to children. The amendment seeks to add:

"that the interest of any child affected is paramount".

My Lords, I am so sorry, I think I am speaking to an amendment which has not been called. I do not move Amendment No. 3.

[ Amendment No. 3, as an amendment to Amendment No. 1, not moved.]

[ Amendment No. 4, as an amendment to Amendment No. 1, not moved.]

moved, as an amendment to Amendment No. 1, Amendment No. 5:

Line 14, at end insert—

("(d) that the interest of any child affected is paramount.").

The noble and learned Lord said: My Lords, what I said prematurely on Amendment No. 3 is sufficiently in your Lordships' minds, so I do not propose to repeat it. It has been a notable feature of permissive divorce reform, of which this is the latest instalment, to concentrate attention on the spouses without regard to the fact that a family extends to the children. The Bill, as presented, was thin on references to children. On an earlier amendment, I quoted the phrase that was used of the parties being locked in a loveless marriage and indicated that that is impossible to enunciate when there is a child.

Practically every speech made by proponents of the measure has used the phrase "a dead marriage" as if a marriage could properly be described as dead when there is living proof on the vine. Those phrases, the Bill, and all the terminology to which I have referred, have been used in the light of the Children Act, to which my noble and learned friend referred on an earlier amendment, with welcome prematurity. That suggests that the reference in the Children Act is not sufficient when one comes to understanding and construing—and, most of all, the public understanding of this measure.

Even if the Children Act does impinge on this measure, there can be no possible harm in adding the provision which I am now submitting to your Lordships. If it does not—I confess that I am by no means certain that it does; in other words, that the Children Act would be considered as governing every transaction under this measure—we need the amendment. As I say, if it does, it can do no harm. I beg to move.

My Lords, I support the noble and learned Lord, Lord Simon of Glaisdale. So much do I respect him that I have proposed almost identical wording in an amendment to Clause 2. It raises the same point about introducing the principle expressed in the Children Act.

As I understand it the Children Act deals primarily with disputes between parents. The Family Law Bill does not deal primarily with disputes between parents but with the divorce of parents. It is possible to have a divorce where the parents are not in dispute. I suggest that care should be used in analysing the problem which the noble and learned Lord, Lord Simon, brings before the House to show that the paramountcy of the welfare of the children should be in both—the Family Law Bill and the Children Act. The Children Act deals with court orders, custody, wardship, and so on. The same principle is expressed in the Family Law Bill.

The noble and learned Lord, Lord Simon, and many other noble Lords have pointed out the importance of children in relation to divorce. I am sure that it is my noble and learned friend's view and philosophy that the importance of children is central to the Bill. I should be grateful if the amendment could be considered in that light.

My Lords, I well remember my noble and learned friend the Lord Chancellor improving the Children Act 1989 by putting into Section 1 words which are almost identical to those in Amendment No. 5. It was a statement of principle which was to guide all concerned in exercising their functions under the Act. The question is whether it would help to have it as an addition to the amendment moved by my noble and learned friend. In my opinion, it strengthens my noble and learned friend's new clause.

It must be confessed that Amendment No. 5 overlaps, to a minor extent, the words in paragraph (c)(i) of the amendment moved by my noble and learned friend the Lord Chancellor where reference is made to,
"with minimum distress to the parties and to the children affected".
That does not go as far as Amendment No. 5. The two are not incompatible. If Amendment No. 5 were added, the earlier words could quite well stand. I hope that my noble and learned friend the Lord Chancellor will accept Amendment No. 5. It contains an important statement of principle which should be borne in mind by all concerned in exercising their functions under the Bill.

My Lords, were it not for my concern for children I would not be taking part in discussions on the Bill. I believe that we are all at one with the noble and learned Lord, Lord Simon of Glaisdale, in wishing to protect their position so far as is consistent with practicality and justice.

My noble friend Lord Renton said that the Children Act has as its preliminary section, as indeed it does, that the child's welfare shall be paramount in the court's consideration whenever the court is exercising its powers under the Children Act. The question I wish to ask my noble and learned friend is: am I right in thinking that in exercising their powers under any subsequent Act the courts are still acting under the Children Act 1989, which means that the paramountcy of the child is already preserved?

5.30 p.m.

My Lords, unfortunately, I was unable to be in my place in Committee and I wish to take this opportunity to thank the noble and learned Lord for accepting a slightly different form of the amendment tabled by the noble Lord, Lord Stallard. Had I been present I should have spoken strongly in favour of it.

I am not qualified to enter into the discussion about whether it is necessary to repeat the word "paramount" in this Bill if it is already in the Children Act. No doubt the noble and learned Lord will tell us that. However, I wish to speak about the word "paramount" itself because it is a difficult and strong word. I ask myself whether in a divorce situation it is fair to the parents to say that the child's interest is paramount. After considerable thought, I believe that it is and that it is necessary to have it in the Bill.

First, the interests of the parent will only rarely be in conflict with the interests of the child. If they are in conflict surely the parents should take on their shoulders the burden of the disadvantage. That principle is fundamental to our society because if children are to grow up happy and useful and as acceptable citizens they need love, security, support and guidance.

I confess that there are different ways in which that can be given. In The Republic of Plato, or indeed in the Spartan community, children were brought up by the state. It is rather different in a democracy. The cost of care by the state is astronomical, whether it is given directly, through children's homes, through foster parents or through support for dysfunctional families and single parents. In a democracy there is a limit to the burden of cost that the taxpayers are prepared to accept. Already in this country the cost of supporting dysfunctional families is reaching a level at which people are beginning to feel tetchy about it. If the situation gets out of hand taxpayers will say, "No more". If that happens children will really suffer.

We cannot afford to go down that route. That is why I believe that Parliament must say to parents, through this Bill, "If you decide to have a child, or if you have a child by mistake, you are responsible for that child. If you subsequently fail to get on together and decide to divorce you have a duty to protect the child as far as humanly possible from the results of your failure".

I believe that parents must recognise that the child's interest is paramount. If parents fail to recognise it society must, through the law, step in and say, "The interest of the child is paramount". I therefore support the amendment.

My Lords, the noble and learned Lord may remember speaking to a similar amendment during our discussions on the Child Support Act. In the Children Act the interest of the child is paramount because it is an Act about children. It does not necessarily follow that the interest of the child should be paramount in every context. Were that to be so I am sure a large number of roads around the country would be closed instantly. I do not believe that to be in prospect. This Bill is concerned with balancing a large number of competing interests. That is necessarily so and we cannot avoid it.

When we consider the interest of the child in a situation involving divorce we must decide whether we are considering the interest of the child in conjunction with those of his parents or in opposition to them. If we consider the interest of the child in opposition to that of his parents almost every child would prefer to have two loving parents living together. But politics is the art of the possible. Because we would like that to happen it does not follow that it will happen. It is a bit like passing an Act to say that we shall always have a wise and benevolent government. I do not believe that it would prove effective.

If we consider the child's interest in opposition to that of his parents we cannot achieve what we want. We are doing more than is humanly possible. If we consider the child's interest in conjunction with that of his parents we will be doing only what the Bill is attempting to do in any event. Either the words are otiose or they are redundant and I prefer to see the Bill remain as it is.

My Lords, perhaps your Lordships will consider the following scene. Two children say that they want their parents to stay together and not to be divorced. The court agrees with them and the divorce is not granted. Then the father or the mother—I shall not be sexist—runs off with somebody of the opposite sex. Because he or she is not allowed to divorce that person lives with somebody else, unmarried. Unfortunately, one cannot stop human beings behaving in such a way. It is how people behave. It is important that children's interests are taken into account but I believe that to make them paramount is going too far. I believe that my example shows that to be a perfectly reasonable view to take.

My Lords, I will yield to none in my desire to do everything that the law properly can to protect and promote the interests of our children. I believe that it is fundamental to our way of life. I also believe that the best possible surroundings in which children can be brought up is a happy home, with father and mother happily married providing them with a secure background. Sadly, there are many circumstances in which that is not possible. One of them is where father and mother reach a situation in which they cannot possibly live together.

As was said by the noble Lord, Lord Northbourne, if the parents were acting properly, in considering what they should do they would consider the interests of the children paramount. However, the court is faced with what the parents have actually done. All noble Lords will know that there are cases in which one parent has gone off and left a young child in order to pursue a different way of life with somebody other than the child's other parent.

In that situation, where the question is, "Should the parents be divorced?", the court has very little option, assuming that the grounds of divorce, whatever they are, are made out, but to grant a divorce. We shall consider the grounds of divorce in more detail when we debate the amendment tabled by my noble friend Lady Young. In my submission, the correct approach is to say that matters concerned with the welfare of the children are subject to the provisions of the Children Act which, in my view, is a well-balanced, practical and efficient method of dealing with that most important matter.

As your Lordships know, I have proposed an amendment to the hardship clause in order to take account of the possibility of the decree of divorce creating hardship for the children. Your Lordships may have seen that some people believe that I am suggesting that children should become involved in the disputes of their parents. I need not point out to your Lordships, because your Lordships know, that I have done no such thing. But it is extremely important that we do not do that if we can possibly avoid it. I believe that one of the worst things that can happen to a child when parents are divorcing is to become involved in the disputes between the parents in such a way as to sour relationships between that child and both parents. It is in the fundamental interests of the child that the child should maintain as good a relationship as possible with both parents, notwithstanding the divorce. That is the primary consideration which has led me to put this Bill before your Lordships.

Therefore, I submit to your Lordships that it is not appropriate to accept this amendment. As I said, I have proposed amendments in relation to the hardship bar and in that I was trying to take account of the views of your Lordships in Committee. I have relaxed the hardship bar which will now apply to all grounds for divorce, assuming that my proposals are carried. I have accepted also an amendment proposed by my noble friend Lady Elles that the court should take that into consideration when looking to see whether the powers under the Children Act should operate. In my submission to your Lordships, that is the right way to proceed, with the paramountcy of the children coming in where there are questions about the arrangements for them: where they should live; with whom they should have contact; prohibited steps orders and so on.

Therefore, with the greatest possible respect to my noble and learned friend, I hope that he will withdraw this amendment on the basis that we are all committed to doing everything possible to promote the interests of the children in an appropriate manner in this sad situation.

My Lords, before the noble and learned Lord sits down, I wonder whether he will assist me on a matter which I was proposing to raise on a later debate. I wonder whether he will assist your Lordships as to the meaning of the word "paramount", referred to by the noble Lord, Lord Northbourne. I do not recollect a case in which it was judicially defined. Does he understand it to mean the most important of the interests to be considered or does he understand it to mean that it should be conclusive to the total exclusion of all other considerations?

My Lords, I take it that it is the most important interest to be considered and to dominate all other considerations. It may not be easy to give a full definition. I do not have a dictionary at hand nor, regrettably, in my head. But that is the way that I understand it. Where the court is operating under the Children Act, its leading, most important and all-prevailing consideration is that of the interests of the child.

However, that may be different where there is a dispute between parents in relation to matters. I give your Lordships one example which does not come completely out of the context of this Bill but is related to it. In the distribution of property between the father and mother, are the interests of the children to be paramount in that sense? Obviously, something must be done about providing for the father and the mother, and the children will have to be provided for properly. But I submit to your Lordships that in that case the interests of the children should not have the controlling influence which one would expect them to have as regards the question of where the child is to reside. That may not be a very good answer but it is the best that I can give.

My Lords, before my noble and learned friend sits down, perhaps he will bear in mind—and it supports his argument because, quite frankly, he has converted me—that "paramount" means overriding in this context in particular.

My Lords, I am very grateful to my noble friend. He has answered the question much more briefly than I did.

5.45 p.m.

My Lords, I am grateful to those noble Lords who have contributed to the debate and most of all to those who have supported the amendment.

At the outset, I deal with some subsidiary points. First, I was very glad that my noble and learned friend adopted the argument that I ventured to put forward in Committee that it is highly detrimental to the interests of a child whose parents are in conflict to be brought into that conflict.

Secondly, my noble and learned friend posed a difficulty just before he sat down for the first time. He referred to the formula when it comes to the division of property. That is quite irrelevant because this Bill is not concerned at all with division of property.

In Committee, I submitted some schedules which dealt with co-ownership of the matrimonial home and its chattels. My noble and learned friend demurred from them being made part of the Bill. I understood him to say—I think I prematurely understood him to say—that he would refer the matter to the Law Commission. I have only just received a letter from my noble and learned friend, for which I am grateful, which does not appear to be quite so encouraging as that.

But the point is that there is no question at all of division of property under this Bill. Therefore, with all respect to my noble and learned friend, the point that he made was entirely irrelevant.

The third point that I wish to make is about the word "paramount" which has been referred to by more than one noble Lord, including my noble friend Lord Northbourne. That is a phrase which is perfectly well-known to the law. The original guardianship of infancy says that the welfare of the child was to be the first and paramount consideration. Parliament took over that phrase from the old Court of Chancery whose formula it was in its jurisdiction over children. If I were asked to define it, I would be obliged, I think, to say that "first" and "paramount" is really a pleonasm. A first consideration is a consideration which is more important than any other. A paramount consideration is a consideration which is more important than all others, and in relation to a child, I hope that that would be the test.

The noble Earl, Lord Russell, with whom I am far happier in agreement than differing from him, said that the formula is all right in the context of the Children Act but not in any context whatever. But of all contexts, surely the context of the Family Law Bill is where it is most relevant. It is most relevant because the child is part of a family whose relationships we are considering. It is most important because the welfare of the child is paramount because the whole future of society depends on the children. It depends on the children, even if we did not have abundant evidence by now that divorce is damaging to the children whose background is disrupted.

My noble and learned friend was kind enough to send me recently the report of the Exeter University Research Group. But there is evidence upon evidence to suggest that disruption of the family background is damaging to a child. It goes back to the 1930s and the researches of Can-Saunders who found a clear link between delinquency and the disruption of the family background. Therefore, if there is any context in which that formula is relevant and desirable, it is in the context of this Bill.

My noble and learned friend referred to an amendment which he has tabled to Clause 9 picking up on an amendment that was proposed by the noble Baroness, Lady Elles. That is important and, in addition, there are a number of other amendments relating to children which fall to be discussed, including my Amendment No. 8 which would spare children altogether the trauma of divorce.

In those circumstances, it seems to me that it would be premature to press the amendment at this stage. It can be considered later when we know how the Bill is shaped in relation to all the other suggestions that have been made about the welfare of children. Therefore, I beg leave to withdraw the amendment.

Amendment No. 5 as an amendment to Amendment No. 1, by leave, withdrawn.

On Question, Amendment No. 1 agreed to.

Clause 2 [ Circumstances in which orders are made]:

Page 2, line 2, leave out ("attending information sessions") and insert ("information meetings").

The noble and learned Lord said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 44 to 51 and 54 to 57. The amendments that I propose in this connection arise out of questions that were raised with me about sessions for information. It was thought that the expression which we had used—namely, "information sessions"—had connotations of large, public communal events which might prove intimidating to some people. There was also concern expressed about the possibility of preserving privacy.

I wanted to make the provisions as open as possible so as to enable us to benefit from pilots of the giving of information which I propose to carry out. I have sought to meet the concerns about privacy and also those expressed about parties going separately to information sessions. Obviously, there are some situations in which parties would not find it congenial to go together, especially those involving domestic violence. Therefore, I have sought to make clear that those concerns have been addressed.

I regard it as a rightly important part of the philosophy of the Bill that, before anyone goes to court with any kind of statement about the breakdown of his or her marriage, very full information should effectively be given to those concerned about the situation and particularly about all the types of help that may be available. In my view, it is extremely important that that information should be given effectively. The different situations which may arise are numerous and it is not possible to say with any precision at this stage what is the best method of dealing with them. That is why I propose substantial pilots if your Lordships and another place ultimately pass the Bill. One of the reasons for the delay in bringing it into effect is that those matters and arrangements should be thoroughly put in place so that the law will operate effectively.

I believe that most of the other amendments are self-evident in their purpose. In the light of that explanation, I beg to move.

My Lords, I wish to speak to Amendments Nos. 52, 53, 58 and 59 which are tabled in my name. I very much welcome the first amendment of the noble and learned Lord the Lord Chancellor which states clearly the general principles guiding the working of the Bill. It states,

"that the institution of marriage is to be supported".
"the parties to a marriage which may have broken down are to be encouraged to take all practicable steps to save it".
The most obvious ways in which those excellent principles can be given substance is by ensuring that those attending information sessions are,
"offered a counselling session with an approved marriage counsellor",
as set out in Amendment No. 52. The noble and learned Lord the Lord Chancellor has indicated that he intends such meetings to include information about marriage counselling. But his commitment, as reported at cols. 993 to 995 of Hansard of 23rd January, needs to be written into the Bill for all to see and respond to, not only for this generation but for subsequent generations.

While information about a number of matters will be given in the information meetings, the availability of marriage counselling is so fundamental and central to the stated principles that lie behind the Bill that it is crucial that it should appear in print. That is the intention of Amendment No. 52. However, we do not want just anyone to set himself—or, indeed, herself—up as a marriage counsellor. The marriage support agencies—the Jewish Marriage Council, Relate, The Tavistock Marital Studies Institute, One Plus One and Marriage Care—ensure that those who work for them undertake specialised training and receive ongoing professional supervision by experienced and specialist practitioners. Amendment No. 53 is designed to ensure that only approved counsellors in organisations approved by the noble and learned Lord the Lord Chancellor would undertake that crucial work.

Amendments Nos. 58 and 59 seek to clarify and strengthen the latter provision. Marriage counselling is a discipline in its own right, distinct from counselling of other kinds. Individual counselling gives priority to the well-being and personal development of the person concerned by considering matters from his or her point of view. Marriage counselling addresses the needs and expectations of both partners and the future of the relationship. It is a skill which requires specialist training and development.

Research from one study shows that,
"many couples do not know whether their marriage is at an end; indeed some may be using the legal system to find out".
That highlights the need for the amendments standing in my name. Of course, it will be entirely up to the couple as to whether or not they avail themselves of such marriage counselling. Moreover, in the majority of cases, it is likely that the divorce process will simply go on.

However, some marriages can be saved and will be saved. Because of that it is vital that the availability of such marriage counselling should be clearly spelt out, not just for the present but for the many years ahead when the Bill is likely to be in operation. I am looking 20 or 30 years ahead. I suspect that the legislation will still be in force. It is vital for those in the future that the availability of marriage counselling, professionally monitored, is actually on the statute book. I hope that the noble and learned Lord the Lord Chancellor will be able to accept my amendments which I believe have substantial all-party support.

6 p.m.

My Lords, as the noble and learned Lord, the Lord Chancellor, said, his Amendment No. 6, and some of his subsequent amendments, arose out of our debates in Committee. In relation to Amendment No. 6, I asked for some reassurance about the form which the information sessions would take. Indeed, we received some welcome assurances from the noble and learned Lord. I think at that point the noble Baroness, Lady Hamwee, suggested that some of the misunderstandings—if, indeed, there were misunderstandings—arose from the use of the expression "information sessions". The noble and learned Lord duly undertook to consider that matter. As he said, we also referred to problems as regards the privacy of the information process, and of possible intimidation of vulnerable partners. The noble and learned Lord listened to what we said and reflected on it. For the second or third time this evening, we are in his debt for that. That, as I understand it, is the whole purpose of our proceedings in Committee and at Report stage.

I wish briefly to mention two other matters. First, I have received a letter from Dr. Stephen Cretney pointing out that the pilot schemes proposed by the noble and learned Lord involve voluntary attendance. They will not in any sense involve the kind of persuasion which appears to be envisaged in the Bill, as there will be no power to apply persuasion of that kind. The information involved will comply with the existing law, and not with the law which will operate when the Bill is on the statute book. Doctor Cretney expressed some doubt whether, in consequence, we shall learn as much from these schemes as we would normally hope to learn from pilot schemes. I thought it right to inform your Lordships and the noble and learned Lord of those comments. For my part, I still think that these pilot schemes will be extremely valuable. They may not tell us all that there is to know, but I believe they will provide some useful guidance.

Secondly, my noble friend Lord Irvine and I wish to express our total agreement with everything that was said by the right reverend Prelate. His arguments would not benefit from repetition by me, and I do not propose to do that except to say that it is certainly most important that the conciliation services should be undertaken by conciliators who are qualified and accredited. It is important to have some such scheme in place. We support the amendments of the right reverend Prelate.

My Lords, I, too, welcome the proposals of the noble and learned Lord the Lord Chancellor on the information sessions, now called meetings. I was interested to hear his explanation. Many of us are worried about what exactly will happen. The pilot schemes are to be welcomed, but quite how they will work is rather unclear. Obviously there will be pilot schemes in some areas and not in others. I do not know what conclusions we are expected to draw from that on how the process will work later. If I may say so, we are buying fairly blind on the information sessions, but it was helpful to have been given a further explanation, and no doubt more information will be forthcoming should this Bill find its way onto the statute book.

The right reverend Prelate the Bishop of Oxford mentioned a point that he raised in Committee. I am sure that all of us—certainly myself—who would like to see a Bill that buttresses marriage rather than civilises divorce welcome the proposals to help couples who are in difficulty. We are, of course, aware that some 20,000 to 30,000 couples each year get to the brink of divorce and then decide not to go further, and that quite a proportion of couples who divorce regret that they ever did so. Therefore, anything that can be done to help those two groups of people seems to me to be valuable.

I return to what I regard as an important point if we are putting public money into an organisation; namely, what we are putting the money into, and what the organisations are doing. I entirely agree with the point made by the right reverend Prelate when he said that we should support marriage. However, I am reluctant to put public money into organisations which regard marriage as one of a series of alternative lifestyles. I believe that is the current jargon. We need to be careful about what we are doing.

I wish to ask the right reverend Prelate the Bishop of Oxford what is meant by Amendment No. 53 which states,
"For the purposes of this section, an approved marriage counsellor is a person currently accredited as such by an organisation…who has undertaken specialist training in couple counselling".
What does that mean? Does the amendment refer to marriage, to cohabitation, to homosexual couples or to lesbian couples? To whom does it refer? We must understand what we are doing if we put public money into these organisations. I should also like to have a definition of "marital interaction", as referred to in the amendment. Does that mean having a row, or chatting over dinner, or holding hands? If we are passing legislation, we must define precisely what it is we are about. I return to my fundamental point; namely, that if we are putting public money into such a process, which I believe we all agree we should do to help marriages, we need to make quite sure that the money will have precisely that effect, and that it is not being given to an organisation which a great many of us would not wish to see publicly supported at all.

My Lords, I join others in thanking the noble and learned Lord for reviewing the phraseology of the provisions with regard to the giving of information. I was among those who expressed anxiety on this matter. However, I should like the noble and learned Lord to take the matter a little further. As I understood the noble and learned Lord at the previous stage of the Bill, he suggested that one of the means of providing information might be to make use of technology. He mentioned, in particular, the use of videos. I wonder whether using the term "meetings" might preclude all that the noble and learned Lord might have in mind, and all that might come out of the use of pilot schemes, if videos are to be used, possibly without face to face meetings taking place. I am not sure whether the noble and learned Lord has in mind that a meeting with a person will be required in every case. That is what the term suggests to me. I do not think we are yet quite at the point in our interaction with modern technology where the viewing of a video would be considered to constitute a meeting.

I take this opportunity to ask whether the noble and learned Lord can give us any information as to when the pilot schemes may start, although I accept, of course, that the Bill has to complete its passage first. How does the noble and learned Lord envisage discussion taking place on what the pilot schemes might consist of? I know that there is some anxiety among practitioners that time will pass quickly, and that it might be useful to have some public discussion on what the pilots might comprise at an early stage. I, for one, would be grateful to hear the noble and learned Lord's comments as regards the detail of the pilot schemes and the timetable. On behalf of myself and my noble friend—I have to be careful not to speak for all on these Benches—I should say that I believe the amendments of the right reverend Prelate are self-evidently right.

My Lords, I had in mind that if a video is to be used it would be handed out, and possibly handed back, but that there would also be some arrangement for a meeting with an individual to take place—rather than solely the viewing of a video—in situations which were not covered by exemptions. I believe it is extremely important that these matters should be effectively communicated and that people are not left with an ineffectual communication of information. We are all familiar with the situation of receiving pieces of paper, sometimes in fairly large quantities, where perhaps we do not always study them as fully as the importance of the information they contain would require.

As regards timing, I wish to consult those who can help in this situation. I have already obtained information from other jurisdictions where these arrangements are in place. Assuming the Bill attains Royal Assent, I hope to proceed with it soon after that.

The noble and learned Lord, Lord Archer of Sandwell, referred to Dr. Stephen Cretney. I accept that the pilots will have to be conducted against the background of the existing law until the new law is brought in. That is certainly an important consideration. I do not believe that what we do at the beginning will necessarily be the final form. The regulation-making power will enable us to improve the information meetings in the light of experience of their interaction with the new law after it comes into force.

My noble friend Lady Young has raised questions about the amendments of the right reverend Prelate. As a result of an amendment passed on the last occasion, Clause 18 provides for the giving of grants to marriage support services and research into the causes of marital breakdown and ways of preventing it. These are all quite clearly related to marriage and they are framed deliberately. I think it right that the availability of marriage counselling is made clear in the regulations relating to the nature of the information to be provided. The right reverend Prelate would like to see that on the face of the Bill. One of the difficulties—which we have faced in relation to other amendments—is that once one starts to specify matters one has to specify all that may be required. I have to guard against the possibility that a list will not be sufficiently flexible in order to take account of changes in the period that I and the right reverend Prelate hope the Bill will cover.

I have a problem about approved organisations. The method that I wish to use in relation to marriage counselling is grant aid. I remain of the view that it is extremely important that marriage counselling is not skewed towards the end rather than the beginning of a marriage. It is important that this kind of service is available as early as possible. In this connection, I propose that grant aid be available to organisations who qualify under the grant-aiding provisions. To impose a system of regulation organised by the Lord Chancellor or the Government is more than is necessary. As my noble friend Lady Young has said, it is not right to hand out public money by way of grants, except to those who are providing the service to standards that we think appropriate and with results which justify the giving of further money. Provision for monitoring the utility of the service is important.

The right reverend Prelate also spoke of consultation in framing the regulations. Of course, I will wish to consult with bodies working in this field. The difficulty about the form of his amendment is that it is so rigid that it would be difficult to ensure compliance with it. I hope that the right reverend Prelate will feel able not to move his amendments and to allow me to consider putting forward an amendment in relation to consultation that meets his main concern as set out in his last amendment. As far as the earlier amendments are concerned, I shall wish to consider whether, in relation to the information session, it is possible to make provision for greater detail in the primary legislation without endangering the necessary flexibility.

My Lords, perhaps my noble and learned friend will allow me to put a question. Will be not make the kind of consultation that the right reverend Prelate desires without being enjoined to do so in an Act of Parliament and the cluttering up of the statute book?

My Lords, I will certainly undertake to do that. But these regulations may vary from time-to-time, and the right reverend Prelate asks for an assurance that this particular point is placed on the statute book. If the right reverend Prelate is content with an assurance that I will consult all of the relevant organisations in this field of which I am aware, obviously I am also content with that. That will save the statute book some words. My noble and learned friend is always concerned to achieve that. That is an alternative course of action. Because of the importance attached to this matter, I am willing to consult on the framing of the regulations if I am given flexibility as to the nature of that consultation. I do not wish to take on the responsibility of statutory regulation of these bodies, but prefer to rely on the fact that government money under Clause 18 will not be given to them except under the kind of conditions to which I have referred. I commend the amendment to the House.

On Question, amendment agreed to.

6.15 p.m.

Page 2, line 5, after ("satisfied;") insert—

("( ) it is not contrary to the interests of any child of the family to dissolve the marriage;").

The noble Baroness said: My Lords, in moving Amendment No. 7 I should like to speak also to Amendment No. 9 in the same grouping.

Like many other noble Lords, I should like to express my gratitude to my noble and learned friend for including children not only on the face of the Bill but in the general objectives adopted in Amendment No. 1, and in particular the reference to minimum distress being caused to children in this process. Of course, that covers the life of the child not only before and during divorce proceedings but after them. I believe that everybody has admitted that it is after divorce proceedings that so much distress and suffering is caused to the child of a marriage that has been dissolved. I am grateful that there is now mention of the child and that the interests of the child, insofar as we are considering its position within the Bill, can fall within and be judged against the general principles expressed in Amendment No. 1.

It has been said several times—but we must remind ourselves from time-to-time—that this is a family law Bill, not a divorce reform Bill. Surely, it is not unreasonable to provide that a court should consider the welfare of the children during divorce proceedings. That is the purpose of Amendment No. 7. As can be seen from Clause 2 in Part I, the court has to take into account four considerations listed in paragraphs (a) to (d). I suggest that it is perfectly reasonable to expect the court to have regard to the interests of the children of the family during the discussion and decision-making process. I should like to repeat what my noble and learned friend the Lord Chancellor has already pointed out. This does not mean that a child should have a veto on divorce, any more than that consideration of the child's interests under the Children Act means that the child can veto custody or a court order. It means that where there are circumstances which can be shown to be detrimental to the child the court must have regard to them before an application for divorce is granted. That is the purpose of Amendment No. 7.

I briefly turn to Amendment No. 9 which provides a new subsection (5) to Clause 2 of the Bill. The provision is similar to Section 1(3) of the Children Act. It contains a list of matters to which the court should have regard in considering the child's best interests. My list is taken directly from Section 1(3) of the Children Act, removing those parts of the list which are not relevant to divorce but are more appropriate to the care procedures or contested custody applications which fall within the purview of the Children Act.

My list is set out in Amendment No. 9. It refers to,

"the ascertainable wishes and the feeling of the child".

There may be some suggestion that "wishes" is not the appropriate word. It refers to,

"his physical, emotional and educational needs".

There are many cases in which there are special needs for children. The provision refers to,

"the likely effect on [the child] of any change in his circumstances; and any harm which he has suffered or is at risk of suffering".

The provision sets out the considerations that could guide the court when it considers the interests of the child. As I have indicated, they would not be overriding. However, in considering a divorce where there are children of the marriage it seems logical and reasonable that those interests should be taken into account before a divorce is granted. There is no logical reason why welfare should be at centre stage when a court must make a decision about a child's custody or access, but should take a back seat when it comes to the parents' divorce.

We discussed at some length in Committee the effect of divorce on the children of the marriage. I do not intend to repeat all the points made during that debate. We have only to refer back to them to see all the problems as regards the broken home and the effects on the children. We all recognise that while one of the parents may hopefully imagine that he or she will find greater happiness through divorce, we can probably agree that those who will not find happiness either way will be the children of the divorcees. They will probably bear scars from that divorce for the rest of their lives.

I hope that it will be considered reasonable to put these two amendments on the face of the Bill. I should, of course, withdraw subsection (4) in Amendment No. 9, which is very similar to the provision that the noble and learned Lord, Lord Simon of Glaisdale, has withdrawn. I beg to move.

My Lords, like the noble Baroness, Lady Elles, I am very glad that the first amendment of the noble and learned Lord the Lord Chancellor includes children. I have been concerned until now that there has been hardly any reference to children in the Bill. I am very glad that they now feature in the first amendment.

I put my name to the two amendments so capably moved and spoken to by the noble Baroness because it is right that the interests of the children should come in the part of the Bill which deals with court orders. A court should have direction from Parliament in this part of the Bill to give particular attention to the interests of children.

I recently received the report from the Joseph Rowntree Foundation in York, published a year ago, called Family and Parenthood. Like all the reports of that foundation, it is very thorough and interesting. It states that,
"the 168,248 English and Welsh children under 16 who experienced their parents' divorce during 1992 was double the 1971 figure and exceeded the previous peak reached in 1980".
We are concerned with a large number of children. I draw attention in particular to subsection (5)(c) which provides that the court shall have regard to,
"the likely effect on [the child] of any change in his circumstances".
The same report states—it is a point raised previously in our debates—that,
"there is accumulated evidence that children whose birth parents separate run increased risks of adverse educational, health and behavioural outcomes when compared with those of similar social backgrounds whose parents stay together".
It continues:
"It is now apparent that some consequences for some children continue into adult life".
It is extremely important that when a case comes before the court it should take account of that. I have been worried during debates that not enough attention is being paid to the interests of children. That is what worries me most about the whole process of divorce. I support the amendments.

My Lords, I, too, support the two amendments. Apparently 90 per cent. of children of divorcing parents wish their parents would stay together. Divorce causes loss of their status, identity and self-esteem, and in over 50 per cent. of cases loss of one parent. I strongly support the amendments which I hope will help to make divorce less likely and will help the children to stop their parents' divorcing.

My Lords, I strongly support the general aim of the amendments. However, there is a practical difficulty. Subsection (5)(a) of Amendment No. 9 refers to,

"the ascertainable wishes and feelings of the child concerned".
How do the proposers of the amendment imagine that the court will ascertain those wishes and feelings without the risk of setting the child against the parent?

It seems to me that there is a place for trying to get into the mind of the child, as it were. National Family Mediation has a code of practice on this. I thought that it might be useful to your Lordships if I were to read a few paragraphs. The code states:
"Mediators must encourage the participants to consider their children's wishes and feelings. Where appropriate, they may discuss with the participants whether and to what extent it is proper to involve the children themselves in the mediation process in order to consult them about their wishes and feelings".
That keeps the ball firmly in the court of the parents. It continues:
"Where it appears to any mediator that a child is suffering or likely to suffer significant harm, the mediators must advise the participants to seek help from the appropriate agency.
"Where it appears necessary or desirable in order to protect the child from significant harm, the mediator must in any event contact the appropriate agency".
The code continues:
"When parents cannot agree or the situation is such that they cannot communicate with their children without the children feeling they are caught between them, or might be disloyal or are unduly influenced by one parent, then the mediator will seek to consult the children's views directly and bring their wishes and feelings back to the parents' session. Direct consultation by a skilled mediator gives children respect as 'persons to whom duties are owed not objects of welfare'… and ensures that their views are fully considered and become an important influence on parents' final decisions".
It seems to me that to incorporate that part of the code of practice into mediation services is probably the right way for the points made in the amendments to be met. I should be fearful of anything that allowed the court direct access to the children.

6.30 p.m.

My Lords, the point made by the noble Lord, Lord Habgood, was the subject of an amendment at an earlier stage. Might it be possible for the court welfare officer to collect the information from the children? I think that could be done without unduly bringing the children into the divorce.

My Lords, I presume that the suggestion made by the noble Lord, Lord Habgood, would fall to the Government, under the scheme described by my noble and learned friend, by the terms in which a grant was given to the organisation providing the counselling. It is a matter for reflection.

Perhaps my noble and learned friend can answer a question which I did not hear answered in a previous exchange. Am I right in thinking that the whole operation of the Bill is subject to the provisions of the Children Act which he has frequently described in the House as biting in a particular case? If so, are not many of the gnats which we are straining at gnats and not camels?

My Lords, I am afraid that I could not support Amendment No. 7 as it stands. It goes too far in two respects. First, it appears to cover children of any age. Presumably, 18 or 19 year-olds—perhaps those who are even older—could be included. Secondly, it comes into operation if there is any disadvantage whatever to a child, however small, arising from a divorce. If the amendment were reworded to read that it was "wholly contrary" or "markedly contrary" to the vital interests of any child of the marriage under the age of 16 to dissolve the marriage, I could support it, but not otherwise. Amendment No. 9 is less draconian but I am still uneasy, given how difficult it will be to predict with accuracy the consequences of the divorce on any given child.

My Lords, I too am worried about Amendment No. 7 and the words,

"it is not contrary to the interests of any child".
I prefer the words, "have regard to the interests of any child". I do not see how the wording could be implemented. Any divorce is not in the interests of a child; therefore there could be no divorce at all if that wording were included. I agree with my noble friend Lady Elles. I understand the proposal but the wording might lead to misinterpretation.

I support the comments of the noble Lord, Lord Habgood, on Amendment No. 9 and the words,
"the ascertainable wishes and feelings of the child concerned".
If we were to follow the wishes of the child those wishes might be wrong. Therefore it ought to be the child's concerns and feelings.

Some of the press got hold of completely the wrong end of the stick when they suggested that the noble and learned Lord wanted children to be involved in the process of divorce. He did not say that, but the press insinuated it. I wish to say how wrong that was. I would like the wording of Amendment No. 9 to be altered. As regards the children, it would not be fair for them to feel that their wishes would be listened to because quite often that is not possible. The children's concerns and worries might be listened to but not their wishes because they might not be fulfilled.

My Lords, I support the general thrust of the amendments, although some of the points that have been made ought to be taken into account before the House decides. It is true that the press have got hold of the wrong end of the stick with some of them believing that under the amendments children would have a veto on divorce. That would not be acceptable to the House, nor to me.

I repeat what I said in Committee. Children are a vital part of a marriage where children exist in it. We must bear in mind that once a child has arrived it is part of the marriage. It no longer belongs to the husband and the wife; it belongs to the husband, the wife and the children of the marriage. Therefore, it is necessary to address the concerns and welfare of the children as well as their feelings where they can be ascertained. However, the children's feelings must not constitute a veto on divorce.

It has been argued that we should not involve children in the process because they will be involved in the acrimony which so often goes with divorce. But they are already involved in acrimony. If there were no acrimony within the family, there would be no thought of divorce. One cannot use that argument against taking into account, where possible, the views and interests of children. Whether we like it or not, if we want this to be a family law Bill, as against a divorce Bill, we must address the interests of children and ensure that they are addressed properly. We must ensure that as a House and as part of Parliament we get it right. That is why the debate is so important and why the views which have been expressed have been so interesting.

My Lords, I expressed both at Second Reading and in Committee my wish to see children appear in the Bill. Although I greatly wish for that, I do not quite feel myself able to support the amendments of the noble Baroness, Lady Elles. I do not believe that the words "interests", "wishes" and "feelings" are quite what we should have. I support the reservations of the noble Lord, Lord Habgood, and the noble Baroness, Lady Faithfull. I prefer our own amendments which come later. Thus I shall reserve my right to speak on them at the right moment.

My Lords, in formulating Amendment No. 9 my noble friend Lady Elles pointed out that she had taken the wording from the Children Act. The noble Lord, Lord Moran, expressed his surprise that there is so little mention of children in the Bill. However, the excellent Children Act remains extant and its terms apply, whatever may appear in the Bill. Is it not therefore reasonable that the amendments suggested by my noble friend should not appear in the Bill because they are not necessary? The legislation is already there.

My Lords, it seems to me that Amendment No. 7 could almost be classed as the Librum veto in the old Polish Parliament. In other words, it appears that one child in a divorce can veto the prospect of divorce by his parents. It is within the bounds of imagination or possibility that there could be five children in a marriage. It could conceivably be in the interests of one of those children that the marriage continues, and in the interests of the other four that it is dissolved. Is that one child to be able to behave like a Polish count? It strikes me as not being a very sensible approach.

We all agree that the interests of children must be looked at very carefully, as the noble Lord, Lord Habgood, said. Perhaps this consideration should be more important in conciliation measures than in mediation measures. The Law Society produced a brief on exactly that point.

I believe the noble and learned Lord has it right. The,
"ascertainable wishes and feelings of the child concerned"
is not something that we should allow to go into law.

My parents divorced, and I did not want them to. It was probably a silly thing that they were divorced, and in the end they did not like it very much. But it would have been totally wrong for me (admittedly by then I was 21 or 22) to be able to stop that divorce. It would have been even more wrong to be able to stop it had the divorce taken place when I was 12 or 14. These amendments are well-meaning, but ill-thought-out.

My Lords, I support both these amendments, so well introduced by my noble friend Lady Elles. In offering my support, I am well aware of the subsequent amendments tabled by my noble and learned friend in connection with the hardship bar and his new amendment, I believe tabled today, Amendment No. 137. Obviously, we shall have an opportunity to debate those matters, but both these amendments are very welcome steps in the right direction in regard to the importance of children.

It may well be wondered, therefore, why we feel it necessary to add anything further to the proposal. There is a difference between the considerations that apply in Clause 9 on the hardship bar, which we shall discuss later, and those brought forward by my noble and learned friend .in his Amendment No. 137—as I understand it, that amendment is very largely concerned with property, assets, and so on—and these amendments which fill a lacuna, as it were, in the provisions relating to children. They are based directly on the Children Act because we regard that Act as saying something of significance which ought to be central to this piece of legislation.

It does not need me to rehearse all the arguments as to the devastating effects of divorce on children. The noble Lord, Lord Stoddart, set them out, as did the noble Lord, Lord Moran. Although we pay lip-service to these matters all the time in this House, and did so in Committee, we now know that one in five children is from a broken home. One-third of the children in a class are from broken homes, as are one-third of the students in a university. I am told that, were we to look into the tragedy of people sleeping rough under the arches at Waterloo station, we should find that a lot are 16 year-olds, turned out of their home by dreadful step-parents of one sort or another, causing terrible social problems, all stemming from divorce. This is therefore an extremely important issue. We should not in any way gloss over it. but should see it as central to the Bill.

I understand the concerns about wording expressed by the noble Lord, Lord Habgood. It may well be that the wording is not quite right. However, I should be very loath to leave this matter to mediation. After all, nobody can be obliged to go to mediation, any more than they can be obliged to go to conciliation, desirable though it may be. Therefore, we need much firmer measures on the face of the Bill.

Another point was raised in relation to the definition of "a child" in Clause 7. That is defined in law, and covers the age of a child. We are not talking about someone who is 19 or 20.

These amendments need very careful consideration. I very much hope that if my noble and learned friend feels he cannot accept them today he will take them away and perhaps redraft them where necessary. It seems totally inconsistent to have a Children Act that sets out what we believe is best for children, and which we all supported, and then, five minutes later, have another piece of legislation that is different. That is inconsistent. It is part of the general confusion today as to what we mean about marriage and bringing up children that we have inconsistent views. When it becomes inconvenient to consider the interests of children, we drop the matter. Nothing is mentioned in the Bill. We need to be consistent.

As my noble friend Lady Elles made absolutely clear in her opening remarks, this proposal does not mean asking children to put a veto on divorce. Obviously that would be an absurd proposition. However, it does mean that when the court considers the matter, the interests of the children ought to be amajor concern. I support these amendments and hope that my noble and learned friend will consider them very seriously.

6.45 p.m.

My Lords, I have not spoken before on this Bill. I did not want noble Lords to tell me that I had not been married and divorced and therefore knew nothing about it. However, I have done a lot of work with children. When I read in the press that my noble and learned friend the Lord Chancellor wanted children to be asked whether or not their parents should be divorced, I was absolutely horrified. I examined the Bill and the amendments, and found that he was not doing any such thing. But that is precisely what my noble friends—with whom I agree about so much in relation to the importance of children—suggest in subsection (5)(a) of Amendment No. 9 which refers to,

"the ascertainable wishes and feelings of the child concerned".
In that context, a child is asked to say whether he or she wants the parents to divorce. I do not understand how we can say that that puts the paramount interests of the child first. If the child says no to divorce, the parents stay together in a miserable situation and the child will blame himself or herself. If the child says yes, they split up and the situation is miserable. Again, the child will blame himself or herself. In such a situation the marriage is already in a very bad state, and we know that children blame themselves for that. That is what happens. This is the wrong point at which to apply such a proposal.

The noble Lord, Lord Habgood, spoke about how children are consulted in mediation. With respect, that is completely different. I know a little about it, as I took a Private Member's Bill on mediation through this House last Session. Asking a child about the arrangements that will be made for him or her is quite different. Amendment No. 9 suggests that we ask a child: do you, or do you not want your parents to divorce? I cannot possibly go along with that, and I hope that my noble and learned friend will not.

My Lords, I am concerned as to how this amendment would work in practice. I ask myself, "How would a court take an objective view as to whether or not dissolution of the marriage is in the interests of the child?", and examine that question case by case. I suspect a confusion of thought in this debate between dissolution of the marriage and separation of the parents. It is very important that that distinction is kept at the forefront of our considerations.

At least a year before the matter comes before the court, as it would under this amendment, the parents themselves probably will have already confronted the question of whether or not they should separate and will have asked themselves the question which parents in that situation must ask. It is a question to which I do not feel there is ever a satisfactory answer. It is whether to struggle on; try to stay together in conflict and unhappiness; or stay apart in relative peace (if not harmony) possibly to spare the children further distress but meaning that the children, unhappily, do not have two parents under the same roof.

So far as concerns the wishes of the children, most children would say, if asked, that the one thing they really want is for their parents to be back together. But in case after case that is the one thing the children cannot have. Whether that is then translated into a reason for holding up or preventing the dissolution of the marriage is a different question altogether. However, I fear that one side effect of these amendments would be to involve the children more than they already inevitably will be involved. I subscribe to the view—it is the view of very experienced family lawyers—that in many cases children have the right not to have to decide these difficult questions.

As a matter of drafting, it seems to me that the amendment may well be in some ways inconsistent with Clause 2(1)(c) of the Bill. The other thing with which the courts will have to be concerned in any event is whether the arrangements required to be made for the children have been met. It is certainly right, if there is an issue about what is best for the children, that any question concerning the upbringing of the children is properly considered under the provisions of the Children Act, to which reference has already been made and of which the provisions set out in Amendment No. 9 are but part. Therefore, I have reservations about the amendments.

My Lords, I am a little puzzled. Perhaps the noble and learned Lord the Lord Chancellor can help me. Amendment No. 7 seems clear-cut. I could not support it. Yes, I could support the spirit of it, but not the letter. It is stopping the divorce.

So far as I understand Amendment No. 9, new subsection (5) simply says that:
"a court shall have regard in particular to".
To my mind, the amendment does not in any way necessarily stop the divorce. It means that the children's wishes, thoughts and situation is brought into the picture for consideration. That seems to me perfectly straightforward and reasonable, if I understand it correctly. If I do so correctly understand it, I should want to support it. I should like to know whether the noble and learned Lord accepts that that is the right way to interpret the amendment.

My Lords, I believe that we can stipulate that children in divorced families are usually unhappier than children with two loving parents living together. We need not go on arguing about that. But if we were to legislate for that, we might be accused of legislating in favour of Father Christmas. What we need to consider is whether children in divorced families are better or worse off than children with two unhappily married parents.

In Committee I said that there was no research available on that point. The noble Baroness, Lady Elles, rightly pulled me up and drew my attention to the Exeter Family Study, which I read with very great profit. It is an excellent piece of research and I shall rely on it in many contexts in social security debates. The sentence to which she drew my attention was technically incorrect. The study attempts the task of comparing unhappily married parents with divorced parents. I have a great many queries about the statistics. I shall not detain the House with the bulk of them now.

Perhaps I may mention one point. There is no way of eliminating the possibility that the couples who divorced were unhappier than the couples in a state of conflict who continued to live together. So the fact that their children suffered more disturbance may simply be because their parents were unhappier. It may not be the consequence of the divorce.

It remains my position that we simply do not know, as a general rule, whether children are more unhappy with unhappily married parents living together or with divorced parents. I suspect that there is no general rule on that at all. In the total absence of information on which I feel that I can rely I am not prepared to put very much weight on the point. That is why I am afraid that, grateful though I am to the noble Baroness for drawing my attention to the study, I still cannot support the amendment.

My Lords, I support the general thrust of these amendments. Any defects in drafting or wording can perfectly well be cleared up at Third Reading. Two of my amendments are grouped with this amendment. Amendment No. 25 falls right outside the area. It is concerned with representation of the child and it revives the suggestion that I made in Committee that the best person to represent the child's interests is the Official Solicitor. Other suggestions were made, such as court welfare officers. My amendment is better considered in this context. I say "represent the child's interests" and agree very strongly with the noble Earl, Lord Onslow, that it is far more important that the child's interests should be considered than the child's views canvassed. I believe that that answers a great many of the points made in this debate.

My other amendment is Amendment No. 8. That amendment vindicates the principle that children come first. It takes children right out of the divorce process. Their views will not be canvassed and they will not be asked because there will be no divorce when there is a young child. The noble Earl says that we lack information. So we do. But we know that children suffer from divorce. We do not know how it occurs or where it occurs particularly acutely. My own feeling is that one of the greatest sources of damage is the presentation of a surrogate parent and the indoctrination of a child. My heart sank on being told, "I have done what I can but the child has an invincible repugnance to seeing his lather"—or mother. One knew that consciously or unconsciously—it was generally a little of both—the child had been influenced. So it is important to canvass the interests of the child.

The evidence is conclusive that children suffer from divorce in many ways. Twice during the course of the Bill I have quoted what was said by my noble and learned friend about that. My noble friend Lord Moran quoted some alarming figures but in fact they minimise the extent of the danger. I believe he said that over 160,000 children were involved in 1993; but that is only the children whose parents were divorced in that year. To that one must add the children who were under 15 whose parents divorced the previous year and so on back; the children under 14 the year before, and so forth. The figure is more likely to be 250,000. Are we really going to wash our hands of them? Are we going to wring our hands and say that it is just too bad? We have the highest divorce rate in Europe. Our average is almost twice the European average. Are we just to beat our breasts and leave it at that?

I therefore commend to your Lordships the idea—even if we do not accept it this time we can perhaps accept it next time—that there should be no divorce where there are children of the family under the age of 16. Not only would that dramatically reduce the rate of divorce; not only would it spare thousands of children from untold misery and detriment; but it would also at a stroke deal with the problem in relation to the mounting divorce rate.

I guarantee firmly that if such a provision were introduced there would be only a small number of divorces that would require adjudication or relief. What is more, it may well be—it would probably be—in the interests of the parents themselves. The light and flame of youth would be extinguished, but the parents would be still united in a common interest in the child for whom they have—and this is enduring—made a sacrifice. The light and flame of youth may well turn into a glow of the remaining coals of their marriage.

I agree so much with what was said by the noble Lord, Lord Stoddart of Swindon, my noble friend Lord Moran and the noble Baroness, Lady Young. We turn our hack on such evidence at our peril. Why should children come first? Because they are the future of our society. They should come first and the way to make them come first is to say that there shall be no divorce if the children are under 16. It is for that reason that I support the amendment of the noble Baroness, though I would prefer to go further and see my own enacted.

7 p.m.

My Lords, the difficulty with Amendment No. 8 is that, although children nearly always suffer when their parents are divorced, many children will suffer even more if their parents do not divorce.

My Lords, I see that my Amendment No. 24 is grouped with Amendment No. 7. With the permission of the House I would prefer to speak to it separately when its turn comes.

My Lords, what struck me in the course of the debate is the amount of common ground between all noble Lords who participated. The noble Baroness, Lady Elles, reminded us, and rightly, that where there has been an irretrievable breakdown of a marriage, we must ensure that in arranging the divorce and resolving the disputes of home and property, the court should not lose sight of the interests of the children.

It is true, as so many noble Lords have said, that the interests of the children would be best served if the marriage did not break down at all. The interests of the children would be best served by a warm, happy, affectionate home. But that is not what we are contemplating. The noble and learned Lord the Lord Chancellor said in an earlier debate that the question is: what is to happen when that is no longer possible and one or both parties wants a divorce? The question therefore is how best to give effect to the principle which the noble Baroness wishes to introduce into the Bill.

The noble and learned Lord, Lord Simon, in his Amendment No. 8, proposes that if there is a child under 16 there can be no divorce at all, even if the court were to consider that it was in the interests of the child and that those interests would be better served by their being divorced. I agree with those noble Lords who said that it does not follow automatically that the interests of a child are necessarily, in all circumstances, better served by keeping the marriage in existence. Something may turn on the alternatives: whether the parents would continue to stay together; if they continue to stay together, what the situation in the home would he; what may happen if they did not stay together and entered into other relationships. Those are all matters to be considered. With the greatest respect to the noble and learned Lord, Lord Simon—again, it is an unusual situation for me to find myself differing from him—he would preclude the courts from entering into any of those inquiries in the case of a child under 16 and considering the situation at all.

The noble Baroness, Lady Elles, does not go quite so far. She would invite the court to consider whether the interests of the child would be adversely affected by a divorce. But she offered the court no discrimination if it came to the conclusion that those interests were adversely affected. If the court finds that a divorce would be contrary to the interests of a child, it would have no discretion; it would have to refuse a divorce.

I respectfully agree with those noble Lords who believe that that is putting it too high. When the court is considering an order directly affecting a child—something about wardship or care and control—then the interests of the child should be paramount. My noble friend Lord Irvine reminded me a few moments ago (in fact he told me because I do not believe I ever knew it) that the word "paramount" was judicially defined in the case of Thane in 1925. That definition was used by the noble and learned Lord the Lord Chancellor in an earlier debate. Those interests are more important than the other interests, but they are not exclusive; they do riot "trump"—the court used that word—all the other interests.

Before I interrupted myself I was saying that where it is a question of an order directed specifically to a child, then it would be right to say that the interests of the child should be paramount. But where what is in question is whether there shall be a divorce, then the interests, the future and the happiness of other people are involved. The court should be empowered at least to give them consideration. It may decide that in all the circumstances the interests of the child outweigh those of the parents and that the interests of the child are that there should not be a divorce. So be it. But to say that the court may not even take the interests of other people into account appears to be going too far. As the noble Earl, Lord Onslow, pointed out, what happens if there is more than one child and the interests of those children conflict? What guidance do we give the court then?

We have all encountered children carrying a feeling of guilt because, perhaps unwittingly, they have prevented their parents from obtaining what they believe their parents desire. It would be wrong to place children in the position of being the necessary occasion of their parents' frustration without a court being able even to take that into account.

The noble Baroness rather exacerbates the problem when she says that the court must have regard to the wishes and feelings of the children. I do not dissent from that—no one in their right mind would—although at Committee stage the feeling was expressed by more than one of your Lordships that the interests of the child may be of greater importance than the expressed wishes of the child. But I would not quarrel with giving a child of suitable age the opportunity to express a view. Indeed, I think we are under an obligation as a country to do so because it is in the convention on the rights of the child, to which this country has subscribed. I have sometimes wondered how it operates always in practice. I have tried with children and grandchildren to listen to their arguments. There has usually come a time, I am hound to say, when I have lost my temper and terminated the argument. Quite how far the convention requires us to go, I am not sure; but of course we would not seek to dissuade a court from listening to the wishes of the child.

I share the anxieties of the noble Lord, Lord Habgood, in asking how the court is to go about ascertaining those wishes. I suspect that if a judge were simply to ask a child, "Do you want your parents to divorce?", none of us would have any hesitation in predicting what the answer would he. There are ways of ascertaining a child's wishes; but it is not an easy problem. I confess that I am one of those who takes the view that courts ought not to be encouraged to involve children in the emotional crises of their parents. There may be occasions when it has to be done but normally I should have thought that it could not bode well for a child to feel that he had to take sides between his parents and lose the friendship and love of one parent or the other. But what is proposed is that the wishes of the child will have to be expressed in the context of what would be virtually a veto on the divorce—I see that the noble Baroness, Lady Elles, shakes her head, but she does not give the court any discretion if it finds that the interests of the child are adversely affected. I confess to an anxiety over whether placing a child in that position would be good for the child.

I have a great deal of sympathy, as no doubt do all noble Lords, with what the noble Baroness is seeking to achieve; but I hope that she might be persuaded that the court should be given some discretion in applying that to the infinitely variable facts of any particular case. It follows from what I have said that I support the amendment in the name of the noble Lord, Lord Northbourne.

My Lords, these are amendments of very great importance, and in responding to them I should like to try to answer one of the questions that was put to me. As I understand Amendment No. 7, it would prevent the grant of an order of divorce if it were contrary to the interests of any child of the family. If one leaves that out of account, there is not really a basis for the later provision in relation to that particular object. But it may well be that the object will be served in some other context—the welfare of the child will come into consideration in some other context.

The question of how children's existence should be taken into account in relation to a divorce is a very difficult one. Hitherto, it has been done by requiring that where the court considers that powers under the Children Act should be exercised in connection with the children, the court may postpone the granting of the divorce until it does just that. The provisions of the Children Act are intended to deal with all the circumstances which affect a child's welfare; where the child lives, when that is in dispute; with whom the child should have contact; points to do with where the child should be educated; and so on—four particular types of order especially in Part II of the Children Act. Paragraphs (a) to (d) of Amendment No. 9 are taken from criteria in the Children Act for deciding these matters. Hitherto, the position has been that the arrangements for the children are to be considered against the background of these criteria. That is the arrangement for the children on the divorce. It has not hitherto been regarded as part of the consideration of whether or not a divorce should be granted at all.

The extreme view is the one contained in Amendment No. 8 in the name of my noble and learned friend Lord Simon of Glaisdale. He would reduce divorces at a stroke by not allowing them in the case of there being children under the age of 16. The logical consequence of that is that if you want to reduce divorces altogether at a stroke you bring in a law to say that there will be no divorce. Would that meet our present situation? You would certainly make sure that there were no divorces—no legal divorces, anyway—but you might well unleash very powerful forces.

My Lords, was that not the situation which we had for centuries?

7.15 p.m.

My Lords, I am sure that my noble and learned friend will have read history about this matter as much as I have. Certainly one way out of these situations in past centuries was the drastic one of one or other of the parties terminating their lives. To my mind this is a serious matter. The idea that by getting rid of a divorce order you immediately sort out the situation is just impracticable. If I thought that the way to benefit the children in this country was to get rid of divorces so long as the children were under the age of 16 I would be very happy to embrace that, but I do not believe that for a moment.

I agree with the view expressed by the noble Lord, Lord Moran, my noble friend Lady Young and others that the present situation is serious and that is why I think it needs to be addressed, and addressed by means of the provisions of this Bill which encourage—that is the most the state can do—people to try to save their marriages. It is not a task that will always he successful but it is a task on which help is important.

In relation to the children of the marriage, it was said by a number of noble Lords that it is not intended that what is proposed should produce a veto. If it does not produce a veto, it is hard to see how it will work. So far as I understand these amendments, they do not seem to me to have implied in them a practical way of working.

Perhaps I may suggest—it may be somewhat presumptuous on my part—that one way of looking at this is by reference to the hardship bar; to use the hardship bar as a mechanism by which the interests of the children should be considered. Having regard to the debates in Committee, I have proposed that that is a way of dealing with the matter. Where there is substantial hardship to a child or children of the marriage resulting from the order of dissolution, the court should have a discretion to refuse the order of dissolution. That seems to me to provide a practical and reasonable way of handling this matter. It may be that my noble friend Lady Elles would like to do more in that connection, but that is a basis on which this matter can be approached.

I have also to point out that part of the arrangements in connection with a divorce before it can be granted under the provisions of the Bill is that the arrangements for the children are before the court. I have embodied in Amendment No. 137, to which my noble friend Lady Young referred, the criteria that my noble friend Lady Elles proposed in her earlier amendment, which is similar to one she proposed in Committee, for bringing into effect the operation of the Children Act in conjunction with the divorce arrangements. That is the right thing and the right way to look at it.

The court, in considering the divorce arrangements, should consider those that the parties have made for the children by reference to the criteria we have set out. In that way a practical arrangement is possible for taking proper account of the interests of the children. The Children Act allows the court to take account of the various matters referred to in subsection (5)(a), (h) and (c). It is perfectly reasonable that the interests, wishes and feelings of the child should be taken into account when considering, for example, where it should stay and with whom it should have contact. It is quite a different thing to say that those wishes and feelings could really play a part in deciding whether or not their parents should be allowed the benefit of a dissolution of their marriage.

My understanding of the research is that what really causes damage to the children is the breakdown of the marriage usually leading to separation of the unit of husband and wife into two distinct units. The child cannot stay with both and feels torn in two. That is a real danger. It usually happens sometime before the divorce. In considering the dissolution of the marriage there is nothing that the court can do to put that right unless the parties are persuaded, by means of the kind of things we are seeking to encourage here, to do it for themselves.

In my submission the Bill provides the correct framework. I am certainly willing to consider whether anything further should be done in relation to the hardship bar. I believe that that is the right way forward and the only practical way in which interests can be taken into account in a way which does not distort the whole divorce process which is, after all, not a process for the children, although it has effects on them, but for dissolving the marriage of their parents.

I invite my noble friend to withdraw the amendment. We may be able to consider whether anything more requires to be done in relation to the hardship bar and the other amendments I have suggested. I believe that we have come quite a long way towards dealing with the problem appropriately by later amendments.

My Lords, I am very grateful to my noble and learned friend for a rather generous offer. I shall withdraw the amendment. I would like to consider further ways in which subsection (5)(c) can be brought into the Bill in some form or other and particularly the three paragraphs which come from the Children Act. Perhaps they can be put into Clause 9 so that they will be part of the consideration of the way in which the court will consider the welfare of the children. That may be one way around the problem. I would like to consider that later.

I am surprised that some noble Lords question the words "wishes" and "feelings" which were so strongly supported in this House when the Children Bill, as it then was, was being debated. They are the precise words taken from the text of the Children Act. I realise that there are many who consider that there would be a veto on the divorce if the interests of the children were taken into account. Some of us share the deep feelings of the noble and learned Lord, Lord Simon, as regards the fact that probably there should not be any divorce, particularly where there are children under the age of 16. I accept, however, that that would not be the feeling of the House and that it would not be acceptable. I know that the noble Lord, Lord Stoddart, would object when I say "in this day and age" because of the way people regard divorce.

Perhaps I may conclude with one comment to the House about what is happening to children. A teacher used to talk to a class in Newcastle every year on religious themes. He found that he could no longer do so because he could not talk any more about God the Father because, although the children knew about God, they did not know who or what the father was. That seems to sum up what is happening to children and their parents in today's society. I thank the noble and learned Lord and beg leave to withdraw the amendment.

My Lords, before my noble friend sits down perhaps she can help me on this point. One of the problems is that as a result of the breakdown of a marriage many children are not in contact with their fathers. Is it not right that one of the ways of trying to alleviate that is to preserve, on the breakdown of a marriage, a good relationship between the children and their father?

My Lords, I agree entirely with my noble and learned friend. I thank him very much for the amendment that he has tabled which reflects one that I tabled earlier referring precisely to contact between both parents. We at least share that particular view. I am very grateful to my noble and learned friend for having raised the matter.

Amendment, by leave, withdrawn.

[ Amendments Nos. 8 and 9 not moved.]

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.