House of Commons Hansard Debates for 17 Jun 1996 (pt 25)

Mr. Llwyd: The new clause sets out the principle that parents who are divorcing should have regard to the interests and views of their children. It enshrines in the

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Bill a right for children in such circumstances to be consulted about important arrangements that their parents seek to make for their future, which is of vital interest and great importance to children. The views and opinions that children hold should be taken into account when important decisions are made about their lives.

The new clause brings England and Wales into line with the situation pertaining in Scotland under section 6 of the Children (Scotland) Act 1995: the so-called Scottish duty. It is right to consider the interests of children and their views at a very early stage. Indeed, if parents fail to agree arrangements for children and the issue goes to court, the court must consider the children's ascertainable views. It is extremely important that the voice of the child is heard.

The provisions of the new clause were the subject of lengthy discussion in Committee. In effect, the present wording of the Bill draws together several important concepts, which were highlighted and discussed in Committee. We have all heard of the so-called amicable divorce. If such a thing exists, it is a description of the conduct of the divorcing parties towards each other. I do not believe that an amicable divorce exists in the minds of children.

Every year, tens of thousands of children and young persons go through the terrible trauma of divorce--frequently even blaming themselves for the father or mother's inability to make a go of it and stay together. It is therefore vital that children's voices are heard loudly--not in a peripheral manner or as an afterthought, but central to the process. New clause 12 is of such importance because it accords children and young people the right to be heard.

Mr. Rowe: The hon. Gentleman is making a very important point. Does he agree that, on many occasions, parents have very little idea of the children's views--partly because they have been frightened to ask and partly because the children are frightened to say? One of the important elements in what the hon. Gentleman is trying to achieve is that those views, once ascertained, should be relayed back to the parents. I do not know how the system would work, but it is important that at a round table or whatever, the children's views should be made available, not only to the court but to the parents.

Mr. Llwyd: I fully agree with the hon. Gentleman. If he looks at the new clause's wording, he will see that that important aspect is covered. There will be circumstances in which a child feels unable to express a view because he or she does not want to be seen to be siding with one parent or the other. Indeed, a child may be afraid to express a view. Under the new clause, a child would be asked to express a view and would be able to do so if he or she wanted. The new clause also includes references to age, experience and so on, because clearly very young children might not be able to express a view adequately. That is a step forward and I accept the hon. Gentleman's thoughtful intervention.

Sir Jim Lester (Broxtowe): I support what the hon. Gentleman is seeking to achieve, especially in respect of talking to children about what they want. There seems to be a presumption in other legislation that the maternal case should always take priority. Many of us know from practical experience that it is better for children involved

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in divorce to have good contact with both parents, and with grandparents, uncles, aunts and the wider family. It is a tragedy that so many fathers lose contact with their children, possibly until they become old enough to want to seek out their fathers. That is one of the sad aspects of divorce and it is certainly harmful, especially to children under 16.

Mr. Llwyd: I agree and I shall discuss that in a moment. New clause 12 accords children and young people rights to be heard on important issues such as schooling, job prospects, where they will reside, with whom they will reside and so on. That provision is qualified in respect of age, experience and intelligence. It will protect children's well-being during and even before family break-up, especially in respect of their relationship with both parents, which the hon. Gentleman rightly mentioned.

Some 40 per cent. of children involved in family break-up lose touch with one parent altogether, which may involve 150,000 children a year. That is one of the most disastrous but routine consequences of divorce and family break-up. A relationship with both parents is a basic right for children. To lose a parent is to lose part of oneself.

The adversarial structure of the courts provides little or no incentive for parents to facilitate the child's relationship with the other parent. Notwithstanding the difficulty of obtaining information on judgments and the reasons for them in private proceedings under the Children Act 1989, it seems that the aim of the Act, which was to give both parents responsibility for the child, is still not generally put into practice by the courts; nor is it fully understood by the public. The public still think that making arrangements for children means deciding which of the parents will "own" the child. Hon. Members have often referred to one parent having custody--a notion that was supposed to have been abolished by the Children Act.

The latest edition of the "Procedural Handbook" to the Children Act, produced by Harris and Scanlan in 1991, states:

"It is generally accepted that it is in the child's interest to maintain his relationship with both parents and this will not be promoted by an order which may be a formality but which nevertheless appears to favour one parent over the other. Anything which will tend to assist the parties to keep separate the issues of being a spouse in conflict and being parents will better enable a child's relationship with his parents to flourish."

The evidence overwhelmingly points to a lack of concern by the public and the courts about children's loss of parents. Residence orders are often understood as custody and may be in favour of only one parent. The other parent may be given a contact order to visit, or be visited by, the child at weekends, for example. That is not sufficient to exercise meaningful parental responsibility. The courts are often reluctant to enforce that minimal contact.

The new clause would encourage the courts and parents to take the preservation of the child's relationship with both parents much more seriously, by requiring it to be addressed explicitly, rather than implicitly, as seems to be the case at present. Subsection (4)(c)(ii) would ensure the maintenance of the child's relationship with each of its parents. That would encourage both parents and courts to

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give priority to preserving and enhancing that all-important relationship. The evidence strongly suggests that a continuing relationship with both parents is beneficial to the child, its self-esteem and future well-being.

Continuing relationships with both parents and frequent regular contact, as provided for in subsection (4)(c)(i), should, of itself, limit the sense of loss and damage to children after break-ups. Much else could follow--a more secure child who will achieve more, and who will be less likely to get into trouble and more likely to benefit from greater financial security. We must remember that it is the parents who are getting divorced, not the children.

Subsection (4)(a) adds an extra qualification in respect of the child's wishes and feelings, that they should be considered

"in the light of . . . the circumstances in which those wishes were expressed".

There are well-known instances where unreliable confessions have been given by adults under pressure. When so much hangs on their wishes and feelings, children may come under severe pressure and may gain the impression that they must choose between two parents whom they love. About 25 per cent. of children may be under an injunction to denounce one parent. The additional qualification will allow welfare officers, mediators and the courts to take into account the known views of the parents in relation to their children's contact with the other parent, and the likelihood that they may be in a position to impose those views on the child, when considering how to interpret the child's wishes.

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