Consideration of amendments on Report resumed on Clause 4.
[ Amendments Nos. 12 and 3 not moved.]
moved Amendment No. 14:
Page 3, line 2, at end insert—
("( ) a statement made under this section has been made by one party and that party has given notice (in accordance with rules of court) withdrawing the statement;").
The noble Lord said: My Lords, this is a modest probing amendment which is perhaps appropriate for after dinner. Some noble Lords, and perhaps all, may have noticed that there is no provision in the Bill for a party to withdraw a statement if the statement is made by only one party. To put that another way, if one party makes a statement, it cannot are withdrawn unless both parties agree.
I can see that that would are a strong discouragement to the making of frivolous statements, and that may are the argument for the provision. On the other hand, it may leave a sword of Damocles hanging over the party who made the statement if, after looking into the matter during the 12-month period for consideration, that party came to the conclusion that an appalling mistake had been made. The other party who had not made the statement would then be able to use it as a threat, particularly during the period between the 12th and 24th month, when negotiating or obtaining agreement on matters of concern between the parties. Perhaps the noble and learned Lord can explain why that curious provision was introduced.
My Lords, is the noble Lord speaking also to Amendment No. 23?
My Lords, I apologise to the House. The noble Baroness is correct. I was speaking to both Amendments Nos. 14 and 23. I beg to move.
My Lords, under the current terms of the Bill, parties are required to give joint notice of withdrawal of a statement even where only one party has made the statement of marital breakdown. The reason for that is, where the period for reflection and consideration has run for some time, the party who did not make the initial statement may well come to the conclusion that a divorce or separation is the best course of action. That may be because of matters that have arisen during that time which convince the party that the marriage has broken down.If the party who made the statement of marital breakdown is able to halt the process by withdrawing that statement independently of the other party, then the latter party will be required to make a fresh statement and go through a further period of reflection and consideration before they can apply for an order. It should are emphasised that the initial party may well are with drawing the statement only because they have recognised some material disadvantage which they may suffer and not because the relationship has a real chance of being saved. In order for a reconciliation to be successful, both parties must be willing to attempt it. If the party who has not made the statement wishes to attempt a reconciliation, then joint notice can be made withdrawing the statement. There is no problem about that. If not, then the period for reflection and consideration already undertaken by the parties, which is likely to have been a very painful time, should not be perpetuated needlessly. Where one party can make a statement and withdraw it at will without the other party's involvement, there is a grave danger of the whole process being misused. Making a statement of marital breakdown ought to be a serious step, and that is my intention. It should not be used, for example, where one party wants to make a point in a fit of anger or to teach the other party a lesson. It is important, therefore, that a party who initiates the period does so with due consideration and in the knowledge that there is a risk that if they change their minds the other party by then may well have been stirred up into thinking that the marriage has indeed broken down and therefore that the best course is to continue with the period and make an application at the end of it. It is not right that one party should be permitted to play cat and mouse by withdrawing a statement unilaterally without regard to the wishes and feelings of the other party. It could then are reintroduced again, are taken back, and so on. One can imagine what might happen. Such a situation is bound to lead to hostility and to heightened conflict. I appreciate that Amendment No. 23, also tabled by the noble Lord, is designed to allow a party who has not made a statement and subsequently decides that they want to continue with the divorce process to join in with that initial statement. However, this would seem to are a rather hit and miss process, as the party who has not made the statement will not necessarily are aware of the intentions of the other party until after the latter has withdrawn the statement. It would then be too late for the party to join in the statement. In any case, it may well not be until the party who has not made a statement is required to consider whether or not they want to make joint notice of withdrawal of a statement that they will come to the conclusion that too much has happened for them to go hack, and that they do in fact wish to continue with the divorce or separation. The party who has not made the statement must are allowed to have some control over the process. It is important that we make the divorce process as non-adversarial as possible and that we stop the situation which exists at present where one party "owns" the divorce and gets his or her divorce against the other party. This is also why, where an application for a divorce order is made by one party, the current drafting of the Bill allows for the party to a divorce who has not made the application to join in that application. I hope that this explanation indicates to the noble Lord what we have had in mind in the way the Bill is drafted. It gives an importance to the statement which I think would be appropriate.
My Lords, I am grateful to the noble and learned Lord. I wanted to hear what are had to say and to get it on the official record. There is a matter of balance here. An unscrupulous husband might taunt his wife into making a statement which she would subsequently regret and are would then have a considerable power over her during the subsequent 24 months. But I accept what the noble and learned Lord says. The balance is probably correct in the way are has it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 15:
Page 3. line 5. leave out ("six months") and insert ("one year").
The noble and learned Lord said: My Lords, in moving this amendment, I wish also to speak to Amendment No. 16, in respect of which my noble and learned friend Lord Simon of Glaisdale has an amendment.
These amendments relate to the provisions for the time limit on making an application for a divorce or separation order by reference to a particular statement. Amendment No. 15 extends the time limit from six months to one year, after the end of the period for reflection and consideration. I have considered carefully the concern expressed in Committee that a six-month lapse period, together with the year period for reflection and consideration, may prove for some couples too short a time in which to finalise future arrangements. It is important that such arrangements are considered carefully and I would wish to avoid situations where hasty arrangements are made to the detriment of parties and their children, simply to avoid having to recommence the divorce process. However, as I said in Committee, I believe it is important not to allow proceedings to drag on interminably as this can cause damaging uncertainty for both spouses and children. I also do not think that one party should be able to preserve the period of reflection and consideration indefinitely, just in case they wish to proceed quickly to divorce at some point in the future. Therefore it is important to have a definite period attached to this. I therefore believe that there should definitely be a lapse period, and have tabled this amendment to extend that period to one year, which will result in an overall two-year period being available for couples for arrangements to be made. Couples are of course able to suspend the period of reflection and consideration if they wish time to attempt reconciliation.
I have tabled Amendment No. 16 in response to the concern expressed in Committee by the noble and learned Lord, Lord Archer. The phrase,
"the earliest time when an application for a divorce order could have been made".
in Clause 4(3)(b) was considered to are ambiguous. I therefore seek to clarify this by referring specifically to the,
"end of the period for reflection and consideration".
In the meantime, I beg to move.
My Lords, the noble and learned Lord the Lord Chancellor has set down these amendments in response to two concerns which I ventured to express at the Committee stage. I am very grateful. It demonstrates that even on matters of detail our labours are not in vain. I do not know whether the noble and learned Lord, Lord Simon, proposes to move his amendment in relation to this, but I thought it right to express my own gratitude.
My Lords, I do propose to move my amendment when it is called. But, in the meantime, I associate myself with the thanks that have been expressed by the noble and learned Lord.
My Lords, Amendment No. 15 is an entirely sensible and valuable improvement to the Bill. I hope your Lordships will support it.
On Question, amendment agreed to.
moved Amendment N.). 16:
Page 3, line 5. leave out from ("the") to end of line 7 and insert ("end of the period for reflection and consideration.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I have to say that if it is agreed to I shall not be able to call Amendment No. 18 by reason of pre-emption. I beg to move.
moved, as an amendment to Amendment No. 16, Amendment No, 17:
Line 2, after ("for") insert ("reconciliation,").
The noble and learned Lord said: My Lords, I had omitted to notice that today was the 29th February. However, during the supper adjournment I had a proposal of marriage from a noble Baroness whom I greatly admire. I had to decline it though on the ground that the Bill provides for serial polygamy and not simultaneous polygamy.
The amendment that I am now moving to my noble and learned friend's amendment puts in the word "reconciliation" before "reflection and consideration". It is linked with other amendments in the grouping. It should are linked with a great many others. It should also go into amendments tabled after I tabled my amendment. That can be tidied up at Third Reading. The amendment is entirely consonant with the thinking of my noble and learned friend that the year period should are used for opportunities of reconciliation, and it is for that reason that 1 have, wherever the period is mentioned, sought to include the word "reconciliation".
When this Bill was presented it was rather thin both on reconciliation and on children. My noble and learned friend has responded in a number of respects in amendments to concerns that were expressed. In addition to that the insertion of the word "reconciliation" is the sort of guidance that is very useful to a Court of interpretation. It shows the sort of approach that the court is meant to have by the framers of the Bill. As I said, not only is this amendment technically desirable, but I believe and hope that it is entirely consonant with my noble and learned friend's intention. I beg to move.
My Lords, I support the noble and learned Lord, Lord Simon, on this amendment. I may be right in believing that the word "reconciliation"—although I know that the noble and learned Lord the Lord Chancellor has it in mind—nowhere appears in the Bill. If I am right in that, then I feel very strongly that the purpose behind this amendment should are accepted.
My Lords, certainly what my noble and learned friend has proposed is entirely consonant with what I have in mind. Therefore, I entirely agree with the sentiment behind this amendment and the spirit in which it was put by my noble and learned friend and by the noble Earl, Lord Perth.In the Bill I have tried to express the idea of reconciliation as clearly as I can in the words that we have used. Their purpose is to see whether the marriage can be saved. It is another way of expressing the idea of reconciliation. The consideration that I have asked for, if there is a happy ending, will be reconciliation as a result of that consideration. Sadly, I cannot are sure that in every case that will are the outcome. Therefore, to use the word "reconciliation" in the manner proposed here may have that kind of slightly misleading context. I am anxious to do everything I possibly and properly can to promote reconciliation. I know that my noble and learned friend believes it is possible that this amendment will help in that connection. But, as I have said, I have tried already in the Bill to put that forward as clearly as I can. The period is for the parties to reflect on whether or not the marriage can be saved. That is the process by which reconciliation is reached. So when I speak of "reflection and consideration" I am referring to reflection in the first part as to whether the marriage can be saved. If that has a good outcome it will be reconciliation. So the spirit of this amendment is already in the title of the period as defined in the Bill. I am reluctant to turn down any verbal improvements that can be made to the Bill, and if my noble and learned friend sees a good answer to what I have just said, I am certainly willing to consider further whether the amendment should are made.
My Lords, before the noble and learned Lord sits down, and with great respect to the noble and learned Earl, Lord Perth, is are not wrong in saying that reconciliation as a concept finds no place in the Bill'? Is it not a fact that in Clause 6 we find a specific provision designed to promote reconciliation, that during the period for reflection and consideration, there is provision for disregarding that period in counting towards the year where the parties desire to attempt reconciliation'? Is not reconciliation acknowledged within the body of the Bill as a worthy objective which the Bill encourages?
My Lords, I do not know whether the noble Lord, Lord Irvine of Lairg, when are referred to "the noble and learned Earl, Lord Perth" was referring to me or to my noble and learned friend. I think, from the context, that are was probably referring to myself. I did not say that there was no reference to reconciliation in the Bill as presented. I said that the Bill was rather thin on reconciliation. We have had a number of amendments designed to flesh out that part of the Bill.I am grateful to my noble and learned friend the Lord Chancellor for the conciliatory way in which are has dealt with my amendment. In view of what are said, I think that my proper course is to ask your Lordships for leave to withdraw it. It is the sort of amendment that can properly be made on Third Reading, but I should like to examine closely my noble and learned friend's reasoning and possibly to lobby him in the meantime. However, as of now, I beg leave to withdraw the amendment.
Amendment to Amendment No. 16, by leave, withdrawn.
On Question, Amendment No. 16 agreed to.
[ Amendment No. 18 not moved.]
The Lord Chancellor moved Amendment No. 19:
Page 3, line 8, leave out ("to be disregarded in calculating") and insert ("not to count towards").
The noble and learned Lord said: My Lords, in moving Amendment No. 19, I should like to speak also to Amendments Nos. 39, 40, 41, 42, 121, 122, 127 and 128.
I have tabled these amendments to address the concerns expressed in Committee with regard to the use of the phrase "is to be disregarded" in reference to a period of time which will not form part of the period of reflection and consideration when the running of the period has been suspended by notice given by the parties.
An amendment was tabled in Committee to what is now Clause 6 by the noble Lords, Lord Meston and Lord Jakobovits, to replace those words with the phrase, "shall not count". The noble Baroness, Lady Hamwee, also expressed concern in Committee with regard to the interpretation of that phrase. As I understand it, the phrase "is to are disregarded" is considered to be ambiguous because as well as meaning that a period of time may not form part of the period for reflection, the phrase can also are taken to mean that any such period should are ignored and therefore have no effect on the period of reflection in terms of suspending it. I have taken the advice of Parliamentary Counsel and the proposed Amendments Nos. 39 and 41 which redraft subsections (6) and (7) of Clause 6 are intended to make the position clear; namely, where a couple notify the court that they wish to attempt reconciliation and require additional time to do so, the period of reflection and consideration is suspended.
I have also proposed Amendment No. 19 to Clause 4(4) to replace the phrase,
"to be disregarded in calculating",
with the words "not to count towards". The period of Clause 4(3)(b) is a specific length of time and I believe that the words proposed in the amendment make it clear that any period during which an order preventing divorce is in force cannot form part of that specific period.
Amendments Nos. 121, 122, 127 and 128 to Schedule 2 are consequential upon the drafting changes which I propose to Clauses 4 and 6. I beg to move.
My Lords, I welcome the amendments as providing a great clarity to the Bill which seemed, to me at any rate, to be lacking in the Bill as originally drafted. I would go further and say that there remains a concern at the requirement in Clause 6 that to stop the clock a system of formal notice is required; in other words, if a couple decides within the year to have a reconciliation, which may take up a substantial part of the period, but does not go through the formality of filing a notice with the court, that period of reconciliation does not stop the clock. That remains a fundamental problem with the Bill as presently drafted. That may are something that needs to be considered further on Third Reading. Meanwhile, I welcome the amendments.
On Question, amendment agreed to.
Clause 5 [ Statement of marital breakdown]:
moved Amendment No. 20:
Page 3. line 15. after ("state") insert ("the attempts which have been made to promote reconciliation with the other party and").
The noble Baroness said: My Lords, I shall be speaking to Amendments Nos. 20 and 21. Amendment No. 21 is almost identical to Amendment No. 20. The noble and learned Lord has his name to both amendments. I am grateful to the noble and learned Lord, Lord Archer of Sandwell, for adding his name to Amendment No. 20.
In Committee, some of us were concerned about the procedures leading to an application for divorce. There appeared to be a glaring vacuum in the proceedings. The proceedings are initiated by one party attending an information meeting. After that there is a gap. The person goes straight to making a statement.
As I understand it, normally if one is going to seek a divorce, one goes to a solicitor. The solicitor may be able to persuade the person not to go ahead with the divorce. The other party will presumably also go to his or her solicitor, are or she may be persuaded not to go ahead with the divorce. There is then a chance for the parties to exchange views before a petition is submitted to the court.
In the Bill, after the information meeting, as I say, there is a gap. One then goes straight into the statement. If the information meeting is to serve any purpose, it will provide the party who goes to it with information about opportunities for mediation and reconciliation. It will explain the procedures and the services available to help that party to go no further. I know that my noble and learned friend the Lord Chancellor shares with us the view that one of the aims of the Bill is to try to save the marriage wherever possible.
Before one goes to the information meeting, marriage guidance and counselling services are invaluable. After the information meeting there should be an opportunity for the party to have are conciliation with the other party. There are three reasons for this. First, saving the marriage is the prime and overriding consideration; secondly, it will make him or her realise that help could be given to have some form of meeting with the partner before going on to the next stage. Thirdly, it would let the other party, who may be holding the baby or sitting at home, know that the spouse has gone to an information meeting and is contemplating divorce.
As the Bill stands, there is no way, opportunity or obligation on the party going to the information meeting to inform the other party that are or she is contemplating making a statement saying that are or she believes that the marriage has broken down. The amendment would provide an opportunity for that to happen before a statement is made. It would also enable the person at the information meeting who is giving guidance to point out, "Look, in the statement you will have to say what attempt at reconciliation has been made". It will therefore draw to the attention of that person that an attempt could or should be made before making the statement. The fact of making a statement shows that one is already well down the road towards a divorce. Having got as far as that, it is much more difficult to withdraw. The strength of the Bill would are to enable reconciliation to be introduced at any stage. My proposal strengthens what is being put forward by my noble friend Lady Young as regards reconciliation, which takes up the matter after the statement has been made. It might help in assessing the value of the information meeting and the kind of information that is being given. Although it is not foolproof, it might encourage those who run the information meeting to try to bring the situation to a head before the statement is made.
I realise that the wording of the amendment may be defective. The noble and learned Lord, Lord Simon of Glaisdale, has tabled an amendment to a later part of Clause 5. My amendment may be in the wrong place but I am sure that my noble and learned friend will consider the spirit of it. I hope that are will be able to accept it.
My Lords, I support the amendment because it addresses a dilemma with which we are confronted. We all agree on the importance of conciliation and counselling. The difficulty is how to introduce a reference to that in the Bill at the point before the statement is made. The statement is one that the marriage has already reached the point of an irrevocable breakdown, so clearly conciliation was needed before that point. However, the Bill can begin to take effect only at the moment when someone invokes the law, which is when are or she files the statement. Indeed, how until then can we know that the conciliation process is necessary?I believe that we can do two things. First, we can ensure that conciliation machinery is in place for those who wish to avail themselves of it. It is to be hoped that they will do so long before the marriage reaches the stage at which they are considering filing a statement that it has irrevocably broken down. Secondly, we can do what the noble Baroness has suggested and in the Bill ensure that the mind of the party who is intending to make the statement is drawn to the possibility of conciliation and reconciliation before the statement is made. For that reason I support the amendment.
My Lords, these amendments are a further attempt to flesh out the references to reconciliation in the Bill. As your Lordships have heard from the noble and learned Lord, Lord Archer of Sandwell, in his typically clear analysis, there has been general support in all parts of your Lordships' House for reconciliation to play a large part in the processes covered by the Bill. There has also been general support for the concept that reconciliation is most likely to be successful if it occurs at an early stage and less likely when attitudes may have hardened.As the noble and learned Lord, Lord Archer, explained, the statement is not necessarily irrevocable but it is certainly a statement that there is something seriously wrong with the marriage. The amendment directs the minds of the parties to the fact that well before the statement is filed there is an opportunity—indeed a desirability is hinted—for reconciliation to be explored. The machinery is that the statement should state what attempts have been made at reconciliation; in other words, looking hack before the statement is filed. Your Lordships may are puzzled that there are two amendments, to both of which my name is attached. which mean precisely the same with an insubstantial change of wording. The explanation, for what it is worth, is that I tabled Amendment No. 21 and then in a fit of usual blind enthusiasm for the noble Baroness, Lady Elles, I added my name to hers. For myself, I do not mind which is accepted by my noble and learned friend the Lord Chancellor. I very much hope that one of them will be accepted. If I am asked to express a slight preference, it is for my amendment.
My Lords, this amendment moves me at one and the same time to both warmth and anxiety. I feel warmth for the underlying purposes of the amendment, with which we all agree. I feel warmth also for the logic with which the case was argued, which appears to me to be impeccable.My anxiety is concentrated on how it would work in practice. If the noble Baroness is able to ease some of that anxiety, I should be very pleased. It seems to me that, if one is attempting reconciliation in a marriage, there are a great many different ways in which one can attempt that. Some of them may consist of doing things which outwardly seem very small indeed but nevertheless, in their inward significance between the parties, may be very great. The problem is in specifying the steps taken towards reconciliation. It seems to me that sometimes the truly inward, from-the-heart gestures may be very difficult to express in a statement but one could put down in a statement a series of formal moves that perhaps do not have very much loving content at all. Therefore, my anxiety is whether the amendment might impose a series of bureaucratic requirements which would not in the end achieve what both the noble Baroness and I would like to achieve. If I can be convinced that that fear is unnecessary, I shall be very glad.
My Lords, I feel that the logic of the discussion on these amendments is driving us to the view that there needs to be a preliminary stage before the statement is written. I then wonder how those statements are to be written and whether most of the people who wish to go through the process are adequate to write such a statement and, therefore, to fulfil the law properly.It seems to me that there needs to be an officer to whom people can go for help in drawing up a statement. It would then be that officer's responsibility to inquire what efforts there have been towards reconciliation. That seems to me to be a logical and practical process.
My Lords, I support both the amendments. But it seems to me that there are two methods of making a statement and that this kind of wording could probably apply to both. It is particularly important, as set out in Amendment No. 20, where a statement is made by a single party, because that probably indicates that the single party is keener on the divorce than the other party to the marriage. If that is the case, the one who is keenest should at least show that are or she has made an attempt at reconciliation.
My Lords, again, the spirit behind these amendments is one that I entirely support. There are questions about precisely how this would work, as the noble Earl, Lord Russell, said. The problem is that this is a statement about attempts, if any, that have been made about reconciliation. I also must consider what my noble friend Lady Elles said in moving her amendment. It is important in relation to the evaluation of the information meeting. I have been wondering whether this particular form of statement as proposed in the amendment would have any particular effect, except as encouragement. I rather think that my noble friend and my noble and learned friend in their amendments do not expect it to have any particular legal effect but just to be an encouragement to put an attempt at reconciliation into the mind of the person making the statement. I understood from the noble and learned Lord, Lord Archer, that that was in his mind also.I have been thinking about this in some detail since my noble friend Lady Elles came to see me to explain her view about this amendment. It may well are that to have an encouragement to state all the attempts made to bring about reconciliation might tempt some people into a history of marital difficulty and whatnot, that would not are in accordance with what we are trying to aim at. On the other hand, to indicate what attempts have been made at reconciliation after attending the information meeting might have two effects. One would be to encourage at that stage, before one lodged the statement, the idea that reconciliation was appropriate; and, secondly, to help us to evaluate the information meeting as a means of encouraging people to go to the information session. The other point I want to make is this. There is a power in the Bill to deal with a form of statement by rules. That might be a way of coping with this that might be more flexible than putting it on the face of the Bill. Certainly I would think it wise to consider a form which enabled a statement to query whether attempts at reconciliation had been made after the information meeting and to put the answer in such a way that it would be yes or no, as it were, to make it quite clear that it was not a condition—because there are some circumstances in which at that stage attempts at reconciliation would are seen as rather hollow. If you try to impose too rigid a framework on these human relationships, you often damage what you are trying to aim at, so one would want a fairly flexible situation so far as that was concerned. I am anxious to meet this matter and I should like to take advice on whether it would are more appropriate and perhaps in the end more effective to contemplate doing this by the powers in the Bill on the form of the statement, or alternatively on the face of the Bill itself but restricted, for the reason I have given, to attempts at reconciliation made after the information meeting had been attended. If those of your Lordships who have helped to promote these amendments would be willing to agree to that, I should be happy to take that forward between now and Third Reading.
My Lords, first I should like to thank noble Lords who have supported the amendment. Also, I should like very much to thank my noble and learned friend for his reply and for his courtesy in receiving me yesterday to discuss, among other things, the effects and objectives of this particular amendment. It might have been helpful to state that attempts have been made. I think to some extent this would come after the point raised quite correctly by the noble Earl, Lord Russell, when are spoke of his anxiety about bureaucratic attempts.I did not expect to have a long list such as "a cup of coffee at Lyons" or "a hamburger at McDonalds" or whatever, in order to discuss matters with the spouse; but that when signing the statement they face the fact that some attempt might have been made to effect a reconciliation before signing the statement. I absolutely accept that that would have no legal significance because the statement is not, as I understand it, justiciable; it is merely a declaratory statement without any legal value. I believe that that point was raised by the noble and learned Lord, Lord Archer. I very much hoped that the amendment would be accepted in, as it were, the spirit in which it was moved. Of course, I would prefer such a provision to be on the face of the Bill because I know that one of the objectives of my noble and learned friend is to cut down on the expenses. Many people will actually read the legislation when it becomes an Act in order to ascertain how to proceed. Therefore, if such a provision were in the legislation and people knew that there was a chance to have reconciliation after the information meeting but before making the statement, I believe that that would make them aware of the reality of the situation. On the other hand, if such a provision were merely placed in the rules—and that, of course, would are quite correct—by my noble and learned friend and his department and appeared somewhere at the bottom of the A to Z of the requirements that one has to meet in the statement, I believe that it would lose its strength and value. It is a most important consideration as regards what could happen between the information meetings, if they are to be of any value at all, and the completion of the statement. However, I shall leave that to my noble and learned friend and, possibly, those who have supported the amendment. Perhaps the noble and learned Lord, Lord Archer, and my noble and learned friend Lord Simon of Glaisdale may have another view on that aspect of the matter. On that basis, I am content to withdraw the amendment.
Amendment, by leave, withdrawn.
had given notice of his intention to move Amendment No. 21:
Page 3. line 19, alter ("state") insert ("the attempts which have been made to promote their reconciliation and").
The noble and learned Lord said: My Lords, in saying that I do not wish to move the above amendment, I hope that I may at least add an expression of thanks to my noble and learned friend for the spirit and content of his reply.
[ Amendment No. 21 not moved.]
moved Amendment No. 22:
Page 3, line 23, at end insert—
("() A statement may specify whether the party or parties making the statement wish to apply for a divorce order or a separation order.").
The noble and learned Lord said: My Lords, I return to a matter that I ventured to question in Committee. If the purpose of the statement is at least partly to notify one party that the other has initiated proceedings, then surely it ought to specify the nature of the relief for which the party is asking, as that may affect how the other partner may wish to respond.
On that occasion, the noble and learned Lord the Lord Chancellor spoke of the virtues of flexibility but suggested a middle way; that is, to give the maker of the statement at least a discretion to say what relief was being sought. I do not know whether the noble and learned Lord has had an opportunity to reflect on the matter. The purpose of the amendment is to give him the opportunity to tell us. I beg to move.
My Lords, in Committee I saw the possible advantage of something along the lines suggested. The difficulty is knowing what effect it would have in the sense of being able to come back, so to speak, to the other possible order. The idea is to keep the options open so far as possible. However, I was impressed—and, indeed, I remain so—by the view that, where a party is absolutely clear that are or she does not want anything other than a separation order, it might smooth matters. But, as the noble and learned Lord knows, this could also be the basis later for another type of order. Therefore, there is some difficulty in that respect.For my part, I do not have too much objection to it but I find it just a little difficult to specify what effect the suggested provision would have in the later stages of the process. Indeed, that remains quite a considerable concern. If the noble and learned Lord could help me to address that, I might well be relieved in a way that I have not been so far and, therefore, able to accept the amendment.
My Lords, I am grateful for that invitation. As I had understood it—although I have a rather faulty recollection here—the noble and learned Lord the Lord Chancellor said in Committee that this measure was not irrevocable, and that the statement could be changed; it is not intended to be the law of the Modes and Persians. If that is so, it seems to me that it cannot restrict what the petitioner—I hope I may call him that, as we do not have a word for the person who files the statement—may wish to do at a later stage if are or she changes his or her mind. What it would do at We outset is at least to give the other party an indication of the thinking of the maker of the statement. I should have thought that would be helpful in deciding how to react. Like the noble and learned Lord, I do not feel dogmatic about this and I would not lead resistance at the barricades, but it seems to me that the earlier, and the more clearly, the respondent partner knows at least the workings of the mind of the petitioner, the more likely are or she is to know how to react, and perhaps are or she will be less likely to put unnecessary obstacles in the way. I hope that that is helpful. I believe that the noble and learned Lord has just indicated his agreement. I wish to emphasise that this would not be binding in the sense that it could not be amended later.
My Lords, with the leave of the House, I should say that I am grateful for that indication. If the noble and learned Lord is prepared to withdraw this amendment now, we may be able to consider it further. We have not been able to consult the practitioners' bodies on this matter as fully as I should have liked. If the noble and learned Lord is willing to withdraw this amendment, we can take it forward at the next stage if it appears to commend itself to the practitioners.
My Lords, that is an offer which I cannot refuse. I am most grateful to the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 23 not moved.]
moved Amendment No. 24:
After Clause 5, insert the following new clause—
STATEMENT OF MARITAL BREAKDOWN: VIEWS OF CHILDREN TO BE TAKEN
(". Parties who—
shall have regard so far as practicable to the views (if are wishes to express them) of any child for whom they have parental responsibility, taking account of the child's age and maturity.").
The noble Lord said: My Lords, this amendment is grouped with Amendments Nos. 25, 60, 61, 62 and 75. This group of amendments concerns children of the marriage. I seek with these amendments to give appropriate information to the children and to ensure that children are listened to. The amendments also concern the welfare of the children and contain provisions for the representation of the children where that seems to be necessary.
Amendments Nos. 60 and 61 both seek to provide for appropriate information to be given to the children. In addition, Amendment No. 60 aims to secure provision of advice and assistance to children and, where necessary, representation in the children's interests. That is to be achieved by the appointment of a special children's officer attached to all family courts and to divorce hearing centres.
Amendments Nos. 24 and 75 are addressed to the parties, and they instruct the parties to listen to the views of their children. In addition, Amendment No. 75 requires the parties to have regard to the welfare of their child or children. In parenthesis I should say that I understand it is not the intention of these amendments to suggest that the child should dictate to the parents. The intention is only that his or her views should be taken into account.
Amendment No. 62 addresses a slightly different point. Where parents for whatever reason are prepared to agree a solution for the child and for the finances of the marriage which is not in the best interests of the child, there ought to be the possibility for a grandparent, teacher, youth worker, or some other party interested in the welfare of the child, to alert the court to the need for the child to be represented, even though the parents may have agreed a particular solution.
Perhaps I may give an example. Suppose that the wife has fallen in love with an attractive man who is younger and perhaps richer than her husband, and she is longing to go off to live with him in Majorca or Manchester. She may be prepared to agree to the children being kept by the husband, even though the children may hate the husband or are may be an inappropriate person to care for the children because are is violent or addicted to alcohol to a certain extent.
At Committee stage, the noble Lord, Lord Irvine of Lairg, told us what happens in the courts today in respect of the safeguarding of the interests of the children. I shall be most grateful if the noble and learned Lord the Lord Chancellor can give the Committee an assurance that the same kind of cursory and inadequate procedures will not be adopted in the future. The noble Lord, Lord Irvine, said:
"48 people will turn up legally unrepresented. They will sit together waiting their turn to be called in to see the district judge .. On average, it takes about five minutes for each couple. In essence. the judge is told what the parties themselves have agreed and that. in practice, is what the judge accepts".—[Official Report. 11/1/96: col. 283.]
The noble Lord went on to say:
"I am not criticising the judges".
I have to say that I certainly am criticising the judges. It seems a most irresponsible and cavalier way to deal with the future of the children of the marriage. However, I may be wrong. I do not know exactly how these things work.
Amendment No. 25 in the name of the noble and learned Lord, Lord Simon of Glaisdale, provides for all of those considerations to be swept together by providing for the Official Solicitor to represent any child in any proceedings under this part of the Bill. I assume that by "proceedings" the noble and learned Lord means court proceedings. I should like to know whether that amendment would mean that all children of divorcing parents would be represented, including those whose parents have agreed a settlement, or whether that would only be where the matter was taken to court.
Subject to a positive assurance on that point, I urge the Committee to accept either Amendment No. 25 in the name of the noble and learned Lord, Lord Simon, or Amendment No. 60 in the name of the noble Baroness, Lady Faithfull, both of which largely cover the points made in the other amendments in the group, including Amendment No. 24 in my name. In addition, they secure advice, assistance and, where necessary, representation for all the children of divorcing parents. I beg to move.
My Lords, I wish to speak to Amendment No. 60, to which I have put my name.I wish to make three points. I do not believe that children should be involved in the divorce process. That is the wrong approach to the matter, and has been misrepresented in the press. I believe that every child needs somebody to go to who is neither the mother nor the father. However, I believe that any good mother and father, even though they are separating, should be the ones to tell the children what is happening and help them to understand. The amendment in the name of my noble friend Lady Elles is allied to Amendment No. 60. I believe that there ought to be somebody to whom the child has easy access, who can befriend, assist and support the child at the time of the divorce. Sometimes, the more children love their parents, when their parents are in difficulties the less they can talk to them. The children really need to have someone to talk to and to help them. But that person must be known to them and easily accessible to them at the time of the divorce. I suggest that that person needs to befriend the child because things are not easy afterwards—not for the first year nor sometimes the second year. The children may want to change their contacts and access visits. Boys in particular as they grow older want to see more of their father if they are not living with him. There then comes the problem: who should that person he? There are 50 county regional centres in the country where children could go. I do not feel happy about that because the child needs easy access to that person. Therefore I am in some difficulty. I have proposed that there should be a special children's officer but I have not come to a conclusion as to who that person should he. However, I believe that the child should have someone to whom are or she can go at the time of the breakdown and subsequently.
My Lords, I have put my name to three of the amendments. I was not happy about the grouping. I think that it is difficult—they are slightly different issues—hut the child is at the centre of them all.So far as concerns Amendment No. 24, I think we are trying to bring the Scottish law into English law. As we have often said before, the Scottish law is sometimes rather in advance of ours. In Amendment No. 24 the new clause introduces into the divorce process the "Scottish Act" duty of parents to consult children about major decisions affecting them. Section 6 of the Children (Scotland) Act 1995 introduces this duty as part of its general definition of "parental responsibility". This new clause is limited to decisions made after a statement of marital breakdown has been filed. Another argument that I would put in support of the amendment is that, if parents do not agree arrangements for children and the issues come to court, the court must by law consider the ascertainable views of the child. That is in Section 1(3) of the Children Act 1989. So it seems to me completely illogical for the child's views to be a statutory factor at a contested stage but not at the earlier uncontested stage. That is the point I should like to emphasise about Amendment No. 24. The noble Baroness, Lady Faithfull, spoke to Amendment No. 60 in her name. However, my name is at the top of the list as regards Amendment No. 75. Much attention has been paid to the child's position in mediation services but little to the child's position when the parties are seeking legal representation. However, the issues are just the same. Lawyers, as much as mediators, should be drawing the parties' attention to their responsibilities as parents for their children's welfare. Lawyers have arguably an even greater duty to ensure that parents are taking into account children's views since it is only in contested adversarial proceedings that the Children Act requires courts to have regard to children's views. That is Section 1(3) of the Children Act. There is now some evidence that lawyers are not very alert to children's interests in family cases. This evidence comes from the Centre of Socio-Legal Studies in Wolfson College, Oxford. This amendment might help focus their minds on the importance of this. This amendment was not discussed at Committee stage, so I hope that the noble and learned Lord will pay particular attention to it.
My Lords, therearetwo different problems which inevitably become somewhat conflated, and have, I think, on the discussion of these amendments. The first is ascertainment of the views of any relevant child; and the second is the representation of the interests of any relevant child. The second is raised by the next amendment, in my name, which corresponds to a number of other suggestions as to how the child shall be represented.As to ascertaining the views of the child, we have the precedent of the Children Act. However, in the context of a divorce, I venture strongly to second the remarks of the noble Baroness, Lady Faithfull. The more that children are kept out of the divorce process, the better. I am very strongly against any suggestion that a child should be interviewed in the presence of a parent. That would be a very embarrassing situation and one that would be likely to produce a distorted view of what the child's views really were.
My Lords, the noble Baroness, Lady Faithfull, has at a stroke removed a number of my anxieties about this group of amendments. However, one or two questions still cause me anxiety. One crucial point, on which I am not entirely happy with either answer, is whether the parents would know what the child had said when its views were sought. That question can be intensely interesting to parents. If the parent does know, then the views of the child may not be totally independent. If the parent does not know, then some suspicion may inevitably grow between parent and child. I do not know what the correct answer would be. I shall be glad to hear if there is one.I also want to draw attention to a small point on which I think the noble Baroness, Lady Faithfull, might be agreeable to some slight correction. It relates to the wording in Amendment No. 61:
There is nothing whatever wrong with the opinion. However, as I understand it, taken literally, that would mean supplying information to a babe in arms that is relevant to its age and understanding. I do not know how I should set about that. Including an age limit might improve the proposal."Any children of the family shall be provided with information appropriate to their age and understanding".
My Lords, a variety of matters is covered under this group of amendments. In relation to Amendment No. 24 in its previous form at Committee stage, I mentioned that there were problems in relation to divorce because the parties to the divorce might have parental responsibility in respect of children other than the children directly affected. It would be very strange in a Bill of this kind to impose a duty to consult a child who was not affected by the divorce.The other point on Amendment No. 24 which is quite fundamental is this. This sort of amendment would be required to have some kind of legal effect. I suggest that such an amendment is likely to make private decision-making extremely difficult and to drag children into parental disputes. I agree with my noble and learned friend Lord Simon and with my noble friend Lady Faithfull. The last thing we want to do is drag children into disputes between their parents. Subsection (b) of this amendment refers to making a,
That is not the kind of situation in which an enforceable legal obligation would seem to be appropriate. We all want parents to make the best possible decisions for their children when fulfilling a parental responsibility or exercising a parental right. I myself prefer the first part—parental responsibility is, I think, the theme of the Children Act—rather than talking about rights. If what is wanted is that the parents should, as a practical and private matter, consult their children in relation to matters affecting the children, I agree that that is eminently desirable, but I do not know that it can easily are put into effect in an amendment of this kind. I indicated earlier—I have now given effect to this point in Amendment No. I 37—that one way to handle the matter would be to ensure that the remit of mediators specifically addressed that question and that the court, when considering whether or not it was necessary to make an order under the Children Act, should have to consider specific circumstances in relation to children. I tabled Amendment No. 137 to have that effect. As your Lordships know, I tabled additionally amendments to Clause 9, to make it possible that hardship to the children could be taken into account in considering whether an order should be made under that provision. With regard to Amendment No. 25, I think it unnecessary to have this kind of provision. The principle is that on the whole the families should look after the children. The public authorities, courts or local authorities should not intervene except where there is good reason, and the court itself should not make an order unless it is satisfied that to make the order would be beneficial for the child. To have the Official Solicitor representing every child in every divorce in England and Wales would seem to be a terrible waste of extremely valuable resources. The Official Solicitor has great skill and is extremely valuable in representing children in certain types of proceedings. But I submit that to have him engaged in every divorce case would be inappropriate. The next series of amendments in this group comprises Amendments Nos. 60, 61 and 62. Looking first at Amendment No. 60, this amendment could lead to children becoming more routinely involved in taking sides in disputes with their parents. That might well have long-term implications for the family's relationships in the future. As I said earlier, and have repeated often, it is absolutely essential that we do what we can to preserve the relationship between children and both parents. The court is already required to regard the child's welfare as its paramount consideration in determining issues in the child's upbringing. However much we might wish to the contrary, what a child wants and what is in its best interests may not always coincide. The difficulty that my noble friend herself found in deciding who should do that is very well founded from the practical point of view. Where the court believes that the parents may be able to resolve issues of dispute for themselves, mediation offers a better opportunity for the voice of the child to be heard than the existing system. I have already mentioned Amendment No. 137 in that connection. Mediators will always remind parents of the need to take account of the views of their children in reaching agreement as to their upbringing. That is the area in which this point is best put rather than expressing it as a legal obligation in respect of the parents. It is best to make it part of the mediation system that the mediators should remind parents of that position. I should perhaps mention that court staff are well used to dealing with queries from families; for example, with respect to the arrangements available for children to attend court. Care and family hearing centres in court have dedicated family sections so that staff have specific expertise in that area, although they do not have any type of advisory function in relation to the court. The court services are currently considering a recommendation by the Children Act Advisory Committee that a liaison officer should be appointed in each court dealing with family matters so that primary responsibility for administrative issues concerning children should be vested in one person. That may provide the kind of link that would be required in a small minority of cases. Where the court is concerned about the parents' arrangements or where there is a dispute it can, under Section 7(1) of the Children Act, require a court welfare officer to prepare a welfare report to assist in ascertaining what arrangements are in the child's best interests. The production of the welfare report will often include ascertaining the wishes and feelings of the child. As my noble friend knows, if the court is sufficiently concerned about the welfare of a child, it can consider a supervision or care order in respect of care from the local authority. The court may direct the authority to investigate the child's circumstances under Section 37(1) of the Children Act. The existing arrangements being developed in the way I explained could cope with that problem reasonably well, in cases where it may arise, without further provision. In relation to Amendment No. 61, I agree with the principle that lies behind the amendment; namely, that children should be informed about what is happening to them, what will happen to them in the future and what they can do about it. The pilot of the information meetings may well help us to see how that can best be done. Those noble Lords concerned in the amendment know only too well from their own experience that the requirements of children in respect of information are quite delicate and different. It would be difficult to envisage satisfactory arrangements in all cases. This is therefore an area that the pilot studies can test for us. Amendment No. 62 duplicates provisions already available concerning the protection and welfare of children. In some circumstances it could lead to the escalation of hostility and bitterness, not only between the parties, but also between the extended families. Any person who is concerned that the safety of a child may be at risk, can report those concerns to the NSPCC or to the social services. Where they believe that they have an interest in the proceedings regarding the child, the Children Act and accompanying rules enable them to make an application to be a party to the proceedings. I wish, if I may, to consider Amendment No. 75 further. I tabled Amendment No. 99B, which is concerned to ensure that mediators are in a position to practice in accordance with the principles of the Bill. Specifically, that amendment provides that the Legal Aid Board may not contract with mediators unless they have in place arrangements to ensure that reconciliation is kept under review throughout the mediation and that the parents are encouraged to consider the welfare, wishes and feelings of their children. On reflection, it does not seem right that mediators should be required to ensure that arrangements are in place with regard to matters such as reconciliation, children and the availability of legal advice, but legal representatives merely need to self-certify whether or not they have discussed mediation and reconciliation with parties. I am minded therefore to bring forward a government amendment at Third Reading which would strengthen the provisions of Clause 10 by requiring legal representatives not only to inform about marriage counselling and mediation, but also about the need for parents to consider the welfare, wishes and feelings of their children when they are deciding arrangements for the future. I hope that that is a reasonable response to matters that I regard as extremely important but in which there is a delicacy about how far we should involve children in their parents' disputes. That was a point of general importance in our debate in all parts of the House. In the light of those considerations, I hope that the noble Lord, Lord Northbourne, and those who support him will feel able to withdraw Amendment No. 24."major decision which involves fulfilling a parental responsibility or exercising a parental right".
My Lords, before the noble and learned Lord sits down—I say that in order that are may be able to reply to me if are is willing to do so—I have not fully understood whether are gave me a clear answer on the question of whether the noble Lord, Lord Irvine of Lairg, was right in the way are described the apparently cavalier attitude which courts at the moment have to the welfare of children and whether that will be different under the provisions of the new Bill.
My Lords, the position I have in mind is to apply the later amendments in respect of the consideration of the arrangements which are in place as evidenced by the statement put before the court. The court will have an opportunity of considering whether or not to exercise its powers under the Children Act. That is the purpose of this.One of the great difficulties in this area is to make sure that one is not interfering unnecessarily. There is a terrific waste of effort and an intrusion of unnecessary bureaucracy if matters are interfered with unnecessarily. I have had consultations through my officials with those with specific knowledge of children's matters to sec whether we can develop a system for making sure that the statement which is put in about the children's arrangements will enable the court reasonably easily to ascertain the cases in which there is a real question of whether it should consider the Children Act powers. That is what I have in mind. It is not easy to know exactly how to do this. I believe it is necessary to do so by reference to the regulations because it is a matter one would learn about and develop over time. It is difficult to fix with any degree of confidence in primary legislation. That is what I have in mind as a way of developing the point which the noble Lord raised.
My Lords, I am most grateful to the noble and learned Lord. I congratulate him on and thank him for his enormous sensitivity in dealing with these matters. I am very convinced by that answer. In regard to Amendment No. 24, the points which the noble and learned Lord made have impressed me and those who have joined me in putting down the amendment. In a moment I propose to withdraw it. 1 was not entirely convinced that Amendment No. 60 could not still be refined in a way which would make it a useful contribution. I particularly endorse the point made by the noble Baroness, Lady Faithful!, that children need a friend or supporter—someone they can talk to—in this context. It may be that the amendment of the noble Baroness, Lady Elles, about a local authority may enable us to discuss this further. I beg leave to withdraw the amendment.
My Lords, as the noble and learned Lord has spoken favourably of Amendment No. 75, I should like to thank him very much and to say that I look forward to seeing the amendment which I hope are will bring forward at the next stage.
Amendment, by leave, withdrawn.
had given notice of his intention to move Amendment No. 25:
After Clause 5, insert the following new clause—
REPRESENTATION OF MINOR BY OFFICIAL SOLICITOR
(" . In any proceedings under this Part any child of the family under the age of sixteen years shall be represented by the Official Solicitor, who shall submit a written report to any mediator or court considering the child, and who may (and shall if so requested by a mediator or a court) make oral representation.").
The noble and learned Lord said: My Lords, as I was working on an earlier draft of the groupings, I had not realised that Amendment No. 25 was grouped with Amendment No. 24 and I did not speak to it. In view of the importance of the matter of children in divorce perhaps I may say a brief word on Amendment No. 25. Although there is an overlap between ascertaining the views of the children, where appropriate, and representing their interests, nevertheless I believe that it is just as well to analyse the two separately.
I believe that there is a general consensus arising out of the Committee proceedings that it is desirable that the interests of the children have representation in some way. On this list of amendments there are a number of suggestions—to which my noble and learned friend properly adverted, since are was dealing with the latest grouping—in favour of the Official Solicitor. There is also the court welfare officer, a guardian ad litem, a children's officer and, I believe, one other. They have all been suggested. Despite what my noble and learned friend has said, I tend to favour the Official Solicitor, whose general duty, with his officers, is to represent children where their representation is desired. The court welfare officer is almost certain to are involved, but are is not the suitable person to do the job, as I see it. Are is a probation officer seconded to the court from the Probation Service. Are cannot, where necessary, instruct counsel, whereas the Official Solicitor can.
My own view is that this matter needs to are further considered. My noble and learned friend is bringing forward an amendment at Third Reading and it may are that we shall have to leave this question over to the other place. In view of what my noble and learned friend has said, I do not believe that we have arrived at a proper solution.
In the meantime there is no course open to me except to consider the matter again at Third Reading in the light of the amendment of my noble and learned friend. I am not sure that that covers his reference to the final consideration by the court of the way in which the children's interests have been successfully taken care of before a divorce is pronounced. I assume that my noble and learned friend was referring to proceedings under Section 41 of the 1973 Act. We shall all want to read what are said so carefully just now and return to the matter at Third Reading, if necessary.
[ Amendment No. 25 not moved.]
Clause 6 [ Period for reflection and consideration]:
[ Amendment No. 26 not moved.]
moved Amendment No. 27:
Page 4, line 5, leave out subsection (3) and insert—
("(3) The period for reflection and consideration begins with the fourteenth day after the day on which the statement is received by the court and comprises—
and during the first six months of the period for reflection and consideration, neither party shall be open to criticism for failing to consider arrangements for the future.").
The noble Baroness said: My Lords, this is a very late hour to start what I regard as an important issue. I very much regret that we are considering the amendment at this particular time. I hope that my noble and learned friend the Lord Chancellor will feel able to consider the amendment. It is intended to area compromise. The amendment proposes the extension of the year for reflection and consideration to 18 months where children are involved. That is the same principle as applies in the Bill as now drafted. At the same time, it provides for the opportunity for reconciliation throughout that time, something with which both I and my noble and learned friend the Lord Chancellor agree and wish to see. I do not think that the amendment conflicts with the principles which are has advanced.
The amendment is a compromise, in that it retains the one-year period for reflection and consideration for those couples without children both of whom consent to the divorce. At an earlier stage in our proceedings, there was quite a lot of discussion about the different provisions for those couples who have children and are divorcing and those couples who do not have children and are divorcing. This is an attempt to draw a distinction between the treatment in each case. As I had understood it from our earlier discussions, that is what your Lordships would like to see.
The amendment also provides that a court could not hold it against a spouse for failing to make an informal agreement. It therefore takes the pressure off a couple facing mediation for at least six months. Coupled with some of the subsequent amendments, it creates in effect a kind of free zone for the first six months although reconciliation could take place.
The principle of the extension of the time limit from one year—one must recall from our earlier debate that at the end of that year either spouse can divorce the other without his or her consent—has the support of Cardinal Hume in a remarkable article in the Tablet and of the most reverend Primate the Archbishop of York.
I believe that the amendment is a compromise. It is intended to be helpful and constructive. We know that in Scotland nearly 60 per cent. of divorces take between two and five years and that in Northern Ireland the proportion of divorces taking that time rises to 73 per cent. Of course, there are special circumstances in Northern Ireland, in that the accelerated procedure does not apply. However, so far as I know, there has been no public demand for a shorter period in either Scotland or Northern Ireland. The period which I and my colleagues are proposing in the amendment is considerably shorter than the period which applies generally in either Scotland or Northern Ireland and in at least 25 per cent. of all divorces in England and Wales. To my way of thinking, the longer period is much fairer to the spouse who does not want a divorce. At present, 25 per cent. of divorces in England and Wales take between two and five years. In this Bill, why should we not consider the spouse who does not want a divorce but who, under the terms of the Bill, can be divorced against his or her wish?
I also think that the longer period for reflection and consideration is important, in that we know that today between 20,000 and 30,000 couples come to the brink of divorce, but then drop the divorce proceedings and do not complete them. We also know that a high proportion of those who do divorce subsequently regret it. Surely we should are trying to help couples in both those circumstances by encouraging them to think again right up to the moment when the divorce is granted. I also believe that, now that we have decided that there will are no fault, it becomes even more important to protect the interests of the spouse who does not want a divorce, and to take more time.
According to the poll quoted by my noble and learned friend the Lord Chancellor, to which I have referred previously, 60 per cent. of the respondents support the present two-year period of separation where both parties consent to a divorce. Those who support a period of reflection and consideration favour a period of 20 months, which is approximately what is suggested in the amendment.
This is an important issue. I hope that my noble and learned friend will consider it in the spirit in which it is offered. For those of us who are deeply unhappy about the Bill and its effects, I hope that this is one way in which we might find some common ground and make progress. I beg to move.
My Lords, if Amendment No. 27 is agreed to, I cannot call Amendments Nos. 28 to 31 inclusive on account of pre-emption.
My Lords, I strongly support the amendment. The existence of children, especially teenage children, will have a great effect on whether a divorce takes place. To put it in the simplest terms, teenage children are powerful marriage counsellors. They have a great effect on what their mother and father are about to do.Secondly, I support the proposed lengthening of the time to 18 months where there are children, because there is the hope that where there are children the divorce may not take place. I have said before that I have read somewhere that 90 per cent. of children regret the fact that their parents divorced. I am talking about children and the length of time needed to counsel a couple to stay together. Counselling is vital and we shall be talking about it later. It is different from mediation. Mediation is in the hands of lawyers. Mediators should in no way be confused with counsellors. Counsellors belong to the organisations about which we know and which we hope will are supported with much more money in the hope that they might avert the divorce. The children's grandmothers and grandfathers, and possibly the older brothers and sisters of the couple whose marriage is in difficulties may have to return from abroad. All that demands much more time to help save the marriage. The period of 18 months suggested by my noble friend Lady Young is wise. It is not a long time. I have known of cases where older brothers and sisters are in Australia or America. They have to come hack and they might have a great deal of influence on the family. I hope that my noble and learned friend will think about this carefully. The suggestion of an 1 8-month period is a valuable one that my noble friend has put into the minds of noble Lords.
My Lords, I, too, support the amendment. The House will be aware of my views about the Bill generally. Of course, I was extremely disappointed that the amendments retaining fault were not carried. The amendment may are the next best thing. As has been pointed out, the position should are different where the couple is agreeable to a divorce from the case where only one partner to the marriage wishes to have a divorce. As was pointed out by the noble Duke, the Duke of Norfolk, in the case of children more time is needed to make settlements which are satisfactory to them.The noble and learned Lord the Lord Chancellor said that a year is a long time. In actual fact, a year is a very short time when you have such arrangements to make. Furthermore, in relation to reconciliation and to second thoughts it is a short time too. Therefore, in a case in which only one party has given notice of a divorce, or where children are involved, an extension of time to 18 months would are most beneficial. I would have thought that when we are making such a huge difference to the divorce law, and when there is no great public demand for it, the least we could do would are to pass this amendment. That would go some way to assuage the fears not only of Members of this House but of people outside about I he. effects of the Bill on marriage generally, and about the messages which are being sent in particular to young people about marriage and lasting and loving relationships. I hope that the noble and learned Lord the Lord Chancellor will give serious consideration to the amendment. If are does not and it is voted upon tonight, I hope that it will receive the support of the House.
My Lords, I support the amendment for the reasons that have been advanced in the three speeches that your Lordships have heard.
My Lords, I have listened to the whole debate today and the one thing that has become clear, if it was not clear already, is that, we are dealing with a Bill in which there are no absolutes. Distress is inherent in the whole Bill. The variety of ways in which distress can be shown to arise is infinite. In my opinion, one will never find a perfect answer to the many problems.I am afraid it is in that light that I look at the amendment. I understand the deep feelings that arise, in particular when children are involved. However, I find it difficult to believe that the extension of the period to 18 months where children are concerned is appropriate. It is not easy to decide the matter. I approached a counsellor and put it to her. She agreed with me that one must do one's best to reach a resolution on such a painful matter as quickly as possible. By dragging it out one would do more harm than good. There may well are exceptional cases and my noble friend raised such possibilities today. However, surely in most cases the attempt to obtain a divorce does not come suddenly out of the blue. The desire has been building up and building up with it have been thoughts about what will happen to the children. I believe that once the process of divorce has begun and the situation has reached that stage the matter should are dealt with as quickly as possible in the interests of the children. Having said that, I understand the deep feelings that there are on all sides of the House and the different views that are expressed. At present I must confess that I believe that the single year should apply in all cases.
My Lords, it seems to me that the merits of the amendment lie partly in its probable practical consequences which were spelt out so clearly by the noble Baroness, Lady Young, in her introduction but also in the strong signal that it would send to the nation at large; namely, that while the state of marriage is always important and significant, where dependent children are concerned it is doubly so.Accordingly, while there should never are any question in a free society of preventing the dissolution of such a marriage, dissolution should nevertheless are discouraged by the erection of an extra hurdle, even if it is only the relatively low hurdle which this amendment proposes. However, there is one very small problem. As drafted, the amendment does not refer to dependent children but to the children of the marriage. Clause 19, the interpretation clause, defines children of the marriage as being identical to the definition contained in the Matrimonial Causes Act 1973. I looked at that Act and it was rather unclear and ambiguous. I then went to look at Halshury's Laws of England, which thankfully was not ambiguous at all. That states categorically that the word "children" in Section 5(2) of the Matrimonial Causes Act means "offspring of the marriage, regardless of age". The important words are "regardless of age". It may are that this amendment is meant to embrace children who are older than the age of 16, but I suspect that it may not are meant in that way, and it may be inappropriate were it to do so. That is a relatively minor point which could be put right on Third Reading and it should not prevent us supporting the amendment this evening.
I speak to Amendments Nos. 29 and 36 in my name and I also support the noble Baroness, Lady Young, in respect of Amendment No. 27.There is very little on the face of this Bill to distinguish clearly between a marriage which has children as against a marriage without children. I have maintained before and I maintain again that spouses or partners who decide to bring a child into the world, or even where they bring a child into the world through carelessness, bring upon themselves a grave responsibility. They take upon their marriage and take upon each of them an additional responsibility. If that is true, I ask myself whether it can make sense for the Bill to treat the young childless couple experimenting with marriage in the same way as a couple who have taken upon themselves the responsibilities of parenthood. I think not. I have considered the various ways in which the Bill can send out the message that children matter. The conclusion that I have reached, perhaps wrongly, is that the best way in which that can are done is that the period for reflection should are somewhat longer when there are children because the decision is that much graver. 1 admit that I was tempted to extend the time to two years but I constrained myself. When an extension of the period for reflection was suggested at an earlier stage of the Bill, a certain amount of play was put on the idea that it was punishment. I do not think that it is punishment but I believe that it may are discouragement. It will certainly not save all marriages but it may help to save some. There is usually a moment in any marriage when one of the partners wonders whether the grass may are greener on the other side of the fence. If a third party comes on the scene, the marriage can be in trouble. Extra time for reflection gives more time for the new romance to show itself as a brief encounter. If there is longer to wait, there is a very real possibility that the intruder may get bored and go away. A marriage is more than just a relationship; it is also a partnership. It is a partnership formed to do two jobs: to bring up children and to support one another into old age. Relationships will always have ups and downs—they will always have blips—but if the partnership holds to its purpose in very many cases the relationship will work itself out again, perhaps changed, perhaps even enriched. But it takes time. I must beg to disagree with the noble Lord, Lord Shaw. I have been advised by an expert in this field that it takes a great deal of time for a couple to learn to communicate again, to learn to relate to one another again; and 18 months perhaps gives a better chance, even if it is only a marginally better chance, than one year. It gives more time and more help. In my amendments I have met the objection that a longer waiting period might be damaging to the children because my amendment provides that where this is the case the court can order the period to be reduced to 12 months, but no less. Finally, this amendment, with the amendment of the noble Baroness, Lady Young, would have the effect of doing something to confound those who say that this Bill is making divorce easier.
My Lords, I am sorry to inject a note of feminism into this debate, because I strongly support the amendment introduced by my noble friend Lady Young to extend, where there are children, a period of waiting to 18 months. I referred to a note of feminism because it is mostly the men in this House who have spoken, and they perhaps forget that after the first year of marriage women are apt to have babies; and if you are a woman with a small child or newborn baby the chances of disruption of the marriage at that stage are of course very great. If you are a woman with a small baby trying to manage on her own or with her husband away, you can get great disturbances between husband and wife, particularly at that early stage of marriage. How a wife with a small baby can be expected to attend mediation meetings and deal with attempts possibly to be divorced by her husband is difficult to understand. I do not want to go at great length into this, but I think I have made the point that where a woman is at home with a baby and trying to look after that child at an early stage of her married life, that is the time when a great many difficulties as between husband and wife arise. I would have thought this was exactly the case where some extension of time should be granted. It would apply there as well as to our other examples where there are children of the family up to the age of 16 or 18. I very much hope that my noble and learned friend might feel that this rather "housebound" view might be taken into account as regards the extension of the period from one year to 18 months in such cases.
My Lords, I take the view that a year for reflection and consideration is enough in all cases, which I understand to have been the Government's considered conclusion in all cases. The argument that it shouldare18 months in cases where there are children cannot be justified on the basis that divorce should be made more difficult for its own sake in such cases, as distinct from the argument that a further six months is required in these cases where there are children for better reflection and consideration.I noted that when the noble Baroness, Lady Young, argued for fault-based divorce earlier in our proceedings today, as distinct from divorce based on irreparable breakdown, she argued that even if fault—a remedy she recommended—was made out, a "quickie" divorce shouldareprecluded—that is to say, a party who was genuinely at fault who made out that fault-based remedy should be kept out of that remedy and not granted it promptly by the courts. As I recall, she even recommended that regulations for the aid of the expedition of court proceedings should be repealed. If your Lordships had acceded to that, it would have been a unique legislative contribution to the law's delays. The proposition is that there should be an extension of the period of one year, "for reflection and consideration", to 18 months where children are involved. I can agree with the noble Baroness to this extent: there is very much more to reflect and consider about when children are involved than when they are not. But I am unpersuaded that a further period of time is required for that purpose when there are children of the marriage. On the contrary, I believe that the further delay entailed in an extension of six months would are likely to prejudice the children by increasing the uncertainty of what is to happen to their parents' lives. Therefore, as I said, I am unpersuaded and oppose the amendment.
My Lords, we have heard quite a few statistics this evening; indeed, we have already heard about the findings of the MORI poll commissioned by the noble and learned Lord the Lord Chancellor. I should like to reiterate what the noble Baroness, Lady Young, said earlier about the 20,000 to 30,000 people who each year petition for a divorce and then, before going through with the process, turn hack because they have had a period in which to reflect.I should like to make one further small point. Most noble Lords present seem to have forgotten the findings of the Exeter child report. Who are noble Lords to say that a year is enough'? If noble Lords had only read that report, they would have seen that children would far prefer to stay within a family household. We are quibbling about a period of five years, but children would far prefer to stay in the family household. Possibly they would see their mother and father quarrelling but at the same time they would feel secure. Noble Lords are adults, not children. They should listen to the findings of those people who were commissioned to take the feelings of the children on hoard. They are in writing. If noble Lords had the time to look at the report, they would learn before opening their mouths in this Chamber. It has been said, and repeated quite often, that mediation is not reconciliation. It is in fact a kind of quasi-litigation. The mediator will mediate for the parties in settling the contact with the children and the property of the marriage. It is true to say that the Bill allows for the mediation period to come to a halt in the event that reconciliation becomes a possibility. In addition, I should like to welcome the recently tabled amendment of the noble and learned Lord the Lord Chancellor which will require the mediators to give much more thought and consideration to the possibility of reconciliation. Nevertheless, there remains the need !Or a period specifically devoted to reconciliation so that the parties have time to reflect and to consider in the knowledge that no property or financial orders will are made—except, of course, interim orders which might render reconciliation difficult or even impossible. With all those facts in mind, I totally support everything put forward by the noble Baroness in her amendment.
My Lords, perhaps I may, first, assure the noble Lord, Lord Clifford of Chudleigh, that I have read the Exeter study with a great deal of interest and care. However, I am not persuaded by its statistical methods. I have discussed that point with the noble Baroness, Lady Elles, both inside and outside the Chamber. I hope that the noble Lord will forgive me if I do not do so again at this time of night.I wish to draw attention to one point in the drafting of Amendment No. 27. In paragraph (a) there is a reference to where,
Does this mean minor children, or does it also cover children of 25 or 30 years of age? That is a point which I think ought to are clarified before the House ultimately comes to decide on this matter. The new thing about this Bill is that it imposes a year's delay. That is a point of some importance. I understand that the purpose of that is to prevent divorce in hot blood. There is something relative about the passage of time. Any of your Lordships who have been, as I have, at the wheel of a car whose brakes have failed unexpectedly will know that in those circumstances 10 seconds can be a long time. Equally, I am sure the noble and learned Lord will confirm that in the drafting and preparation of a parliamentary Bill one year can be a short time. The question is: what is the appropriate clock'? I was advised when I was a young man that should I wish to break off an engagement or similar relationship, the length of time I needed to keep out of the person's way would be about six months—I think there was sense in that advice—which would then give a further six months for working out what I really felt when left to myself. I really do not see that the extra six months on top of that are necessary and I would rather the Bill remains as it is."there are no children of the family".
My Lords, in the grouping we are discussing I much prefer Amendments Nos. 29 and 36 which have already been spoken to by my noble friend Lord Northbourne. Turning to Amendment No. 27, the noble Earl, Lord Russell, may have explained the last three lines of that amendment. That explanation is not immediately apparent on the face of the amendment. Had it been suggested in the amendment that the time could be used for efforts at reconciliation or for marriage counselling, or for something of that sort, I would have understood it, but in the stark form in which it appears it seems to me to be something like an incentive for doing nothing.
My Lords, I prefer the one-year period to the 18 months for two reasons. First, uncertainty is a bad thing for children, particularly at times of distress and worry. Secondly, that period will not mark the beginning of the period of distress. There will have been trouble and uncertainty for long before that—probably a year, perhaps even longer. I prefer to keep the period of one year. Perhaps we should be more flexible and give the court the option of extending the period in certain circumstances.
My Lords, at Second Reading I said I was not worried about couples who did not have dependent children divorcing but that I was deeply concerned about the effects of the Bill on children. It is important and useful that these amendments draw a distinction between couples with children and those without. I should not mind reducing the period for couples without children below one year, but for couples with children it is important that they should have time both for reconciliation efforts to are made to save the marriage and for the requirements of mediation and all the business of dealing with custody and the division of the assets. As the noble Baroness, Lady Young, argued persuasively, 18 months is a reasonable compromise, which I support. I am also attracted by the case for Amendment No. 36 put persuasively by my noble friend Lord Northhourne. I think 18 months is the right period and I hope that we shall go for it.
My Lords, the noble Lord who has just spoken has neatly illustrated my fear about this amendment; namely, that it traduces us to the concept of two classes of marriage—a marriage in which people are willing to consent to dissolve it when they have no children and a marriage in which there are other responsibilities. That seems to me to put us on a very slippery slope. The noble Lord has just illustrated that by saying that in the first category we can reduce the period below one year.I believe that the Bill ought to indicate that a marriage is a marriage is a marriage, whether or not one has responsibilities for children. It takes time to dissolve any marriage. The fact that the period is the same for all marriages—whether it is a year or 18 months—says something very important about the status of marriage itself, quite apart from the additional responsibilities marriage may give us.
I should like to follow up the thesis of the noble Earl, Lord Russell, concerning the relative period of time of which we are speaking in every case.With the exception of a few of my noble friends on the Front Bench, your Lordships are all old and grey. As a result, to us a year is a very short time. To the child, a year is a very long time indeed. As my noble friend pointed out, the trauma, unpleasantness and difficulties that arise out of a divorce do not begin at the moment when the period of a year or 18 months starts; they have been going on for a long time. The children are in distress. They are unhappy about the relationship between their parents. They have probably been unhappy for a long time before the period starts. From that point on, a year is an age to them. It is quite enough.
As my noble friend Lady Young explained, the amendment is put forward in a constructive spirit. I appreciate that. On the other hand, we ought to seek to be guided so far as we can by principle in this matter.I submit to the Committee that the question of whether a marriage has broken down is one that ought to be tested by a given period of time. It is true that where there are children there will be a need to make arrangements for the children. The Bill proposes that those arrangements must be made, in general, before a divorce is granted. Therefore, where time is required to make the arrangements that time is provided for in the Bill. It may well be longer than a year in some cases. It certainly cannot be less than a year, because the minimum period is the year for reflection and consideration. I submit that there is a proper period for that purpose, which one has to decide upon. That purpose applies to all marriages. It is not affected by whether or not there are children of the marriage. I agree entirely that where there are children of the marriage there are additional responsibilities, as the noble Lord, Lord Northbourne, pointed out. The Bill takes full account of that in requiring that arrangements for children have to are made before the divorce is granted. One of the matters we have to take into account is the effect of uncertainty upon children. This is a matter which has already been the subject of a good deal of comment by the Committee. In that situation, it seems to me as a matter of principle that it cannot are right to require that, just because there are children, those children should are subjected to a longer period of stress than is necessary for the purpose of determining that the marriage has broken down irretrievably. One has to try to are guided by principle in this matter. I, of course, had this in mind when we consulted on the Green Paper as a result of taking up this problem. I had the impression from the consultation that a clear majority of our consultees did not favour the imposition of a longer period if there were children. These are matters of judgment. Your Lordships may have received briefing circulated on behalf of OneplusOne, the marriage and partnership research charity, in which Dr. Jack Dominian plays a very important role as an experienced researcher and adviser in this area. Writing on behalf of OneplusOne, and of the director of the Jewish Marriage Council, the chief executive of Relate, the director of the Tavistock Marital Studies Institute, and Mary Corbett, the chief executive of Marriage Care, the director comments on the amendment to extend the period to 18 months where the statement of marriage breakdown is made by one party or where there are children of the marriage:
"The proposal for a period of reflection sends out a very important message—that the decision to divorce is a serious step and has profound implications for the parties and their families.
I wish particularly to emphasise the third point:"Given this opportunity to consider the future, many couples will need the skilled help of marriage counselling and mediation to help them".
That is the period during which to decide that there is irretrievable breakdown. The briefing continues:"There is no right time for all couples: however, the law must provide a justifiable definition of the length of this period".
In the light of those considerations, and as a result of the consultation which we undertook, I feel that the period of a year which ultimately we decided upon is right. I also point out that my amendments embrace the early part of this amendment, which makes the period of reflection and consideration begin on the 14th day after the statement was received by the court, as Amendment No. 27 proposes. So far as concerns the last part of the amendment, I submit to your Lordships that the period is one which ought to have a purpose throughout and any encouragement not to use the period fully for the purposes for which it is provided might well detract from its success for those purposes. Accordingly, I invite your Lordships to hold to the period as stated in the Bill. This is, of course, very much a matter of conscience, and, therefore, it is a matter, so far as we are concerned, for a free vote."One year seems to us to are long enough for couples who are unsure about divorce to reconsider their position and explore the possibilities of reconciliation and not too long for those (especially children) who are caught in an intolerable situation as a result of marital breakdown".
My Lords, despite the late hour, I think we have had a very good debate on the amendment. I am grateful to the many noble Lords who have supported me in what I said.Perhaps I may deal with some of the questions raised. I was asked the meaning of "children of the family". That refers to the natural children of the couple; and it could are other children—an adopted child, for instance, or a stepchild. I would define the word "child" as I believe it is generally defined as someone under the age of 16. I do not think there is anything unusual in that. I recognise that whether we settle on a period of a year or of 18 months is very much a matter of judgment. Those who spoke against the amendment did so, if I may sum it up, on the grounds that a year is a long time in the life of a child and one should not allow uncertainty to continue longer than a year. A year of quarrelling parents is a very long time in the life of a child. There has been much discussion on the evidence regarding the effect of divorce on children. There is no doubt whatever that divorce is very had for children, however it is dressed up in this Bill with reconciliation, advice, help, social workers and anyone else we care to name. The statistics relating to children of divorced parents show conclusively that they have more ill health, do worse at school, are more likely to take to crime and repeat the pattern of their parents' marriages. I have said this before, but it should are repeated and borne in mind. There is extensive research that shows it to be fact.
My Lords, perhaps my noble friend will allow me to remind her of something I said in a compressed sentence in an earlier debate. There is a very much larger body of research summarised by Amato and Keith in 1991, based on 13,000 children. It comes to the conclusion that the outcomes are better for children in divorce than in intact, conflict-ridden families.
My Lords, of course I took that point. I do not base this argument on the Exeter study. There is considerably more evidence than that. However, that is one piece of information. We could argue for a very long time about divorce. But I draw to my noble friend's attention the very important book, Families without Fatherhood. It is based on research by, I believe, two members of the Labour Party, so it is not some Conservative handbook. It is very important reading for anyone concerned with this subject.
My Lords, will the noble Baroness give way? I wonder whether she will explain, even at this late hour, to the House what is her intellectual difficulty in comprehending the proposition that it is the breakdown of marriages that causes all these problems for children, not the subsequent divorce.
My Lords, as I have already said, I believe there is evidence that it is the divorce. Of course children are unhappy when parents quarrel. I do not dispute that statement. But we have already heard evidence from noble Lords who spoke about the effects of their own parents' divorce who obviously, years later, have not really recovered from it. We delude ourselves about this matter. I can only speak from my own experience. I think I was 14 before I met anybody who had ever had anything to do with divorce.
I am most grateful to my noble friend for giving way. On this point, a recent Home Office report, of which I know she is aware, indicated that all the major offences by young people are committed by those who come from broken homes. That is after the divorce. One of the points being made by my noble friend is this. Where there are children, it is more important to have a longer period in which to take measures to try to get over a breakdown, try to stop it happening and try to save the marriage. It is not necessary to turn to the Exeter study. The facts in the Home Office paper regarding children who suffer from broken homes are that those who commit serious offences and those in care are all from broken homes.
My Lords, will the noble Baroness—
My Lords, I remind the House that this is Report stage. My noble friend Lady Young was winding up. She should be allowed to complete her remarks.
My Lords, I thank my noble friend Lady Elles very much for her intervention. I was of course aware of the Home Office report. I am quite certain that, if we were to look at a lot of the 16 year-old children sleeping rough on the streets of London tonight, we should find that most of them are from broken homes, with step-parents who have turned them out. So it is a very serious matter. That is the consequence of divorce. The point that is made over and over again by Jonathan Sacks in his hook on the family, to which I referred, is that there are numbers of families now without fathers and sons without fathers and without a male role model, who are suffering acutely.In this Bill we are saying that we must pander to the modern concept that if you do not like what you have got, you can trade it in or change it for something better. That will make the parents happier and we shall do what we can to pick up the pieces for the children, who are the ones who will suffer. It is a policy of despair to say that couples cannot consider these matters for 18 months. After all, they might change their minds; people do change their minds. If they had a little longer they might have a great opportunity to do so. Some will not and sometimes it will be difficult. I cannot prove that anybody will be more likely to change their mind any more than anybody else can prove that they will not change their mind. The law can only give the opportunities, and a longer, opportunity in this case. I was very surprised to hear the argument that we should not draw a distinction between couples with children and couples without children. It seems to me that there is a very clear difference. For couples without children, when they both consent, I accept that a year would are quite long enough. But where there are children, a great many other considerations apply and we should consider those. I say to my noble and learned friend the Lord Chancellor that in all these things we must always hope for reconciliation. A longer period of time makes that more likely to be considered. I am grateful that—asarepointed out—later in the Bill are has made provision to ensure that, where arrangements for children need to are considered, the time of one year can are extended. I welcome that. I am very disappointed that are has felt quite unable to meet me on any of those points. But the hour is late. I shall consider what are said, and particularly the drafting of this amendment. I beg leave to withdraw the amendment.
My Lords, before the noble Baroness sits down, perhaps I may ask, in relation to that last remark, that she consider at Third Reading bringing this matter before the House again, since it is of such vital importance. The number of noble Lords who are present tonight is not able truly to represent the feeling of the House.
Amendment, by leave, withdrawn.
[ Amendment No. 28 not moved.]
had given notice of his intention to move Amendment No. 29:
Page 4, line 5, after ("is") insert ("a minimum or).
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 29 and 36. However, I should like to say that I was tremendously disappointed by the noble and learned Lord's response. I shall not repeat all the remarks of the noble Baroness Lady Young, but I shall add one comment.
I for one, and I think she also, attempted to help the noble and learned Lord to deal with a very real problem; namely, the message that this Bill sends out to the world. The press tells us that this is a Bill to make divorce easier. We need to try to devise some way to send a message that it does not make divorce easier and that couples who bring children into the world have an additional responsibility. Having said that, I shall not move the amendment.
[ Amendment No. 29 trot moved.]
House adjourned at nineteen minutes past eleven o'clock.