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Baroness Carnegy of Lour: The phrase was in the Law Commission's draft Bill, as the noble Lord will know. Obviously the Law Commission thought that it was all right. One departs from the Law Commission's phraseology with reluctance. I do not know whether my noble and learned friend wants to say anything about it. I shall have a look at it.

Clause 1, as amended, agreed to.

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Clause 2 [Exceptions to general rule of inadmissibility]:

Baroness Carnegy of Lour moved Amendment No. 3:

Page 2, line 46, leave out ("the child of any such person") and insert ("a child who is the subject of such a family mediation").

The noble Baroness said: The amendment makes it clear that it is the child who is the subject of mediation, and not any other child, who is to be regarded as a participant in family mediation. The amendment responds to a point which I raised with the Minister. My noble and learned friend Lord Fraser of Carmyllie was on the Front Bench at the time, and he acknowledged the point on Second Reading.

The amendment seeks to remove an ambiguity in Clause 2(2) as to precisely when, for the purposes of that clause, a child shall be regarded as a participant. As subsection (2) is currently worded, the child participant could be any child of any adult participant even if that child was not the subject of family mediation. Of course that is not the intention of the Bill.

Likewise, as the subsection stands, it excludes the possibility that the child might be the subject of mediation between adults who included, say, a grandparent, uncle or aunt. The child to be regarded as a participant is the child who is the subject of family mediation which deals with the matters affecting him or her listed in Clause 1 (2) (a). This clarification is important, because in Clause 2(1) (c) one of the exceptions to the general rule of inadmissibility is that if all the participants, including the child participant, agree. I hope that the Committee will accept the amendment and the clarification it brings. I beg to move.

The Earl of Mar and Kellie: The amendment broadens the range of children referred to in Clause 2(2) (b). It is most appropriate in view of changing social trends, in particular, the increased frequency of step-families and single parent arrangements. We are beginning to come across families where there are "his" children, "her" children, and "their" children. We must try to legislate for all foreseeable eventualities. For example, I am fortunate that my marriage continues to thrive, but, had it broken down before my step-children became adults, I should have wanted to seek legal access arrangements on the grounds that I had been a de facto parent and also because I like them.

There is an increased need for a mediation service for grandparents who seek access to their grandchildren on the break-up of their children's marriage. The amendment would clear the way for a wider range of parenting arrangements to come within the scope of the inadmissible evidence scheme.

7.30 p.m.

Lord McCluskey: The noble Baroness drew the Committee's attention to Clause 2(1)(c). If the idea is that every participant might agree, the Bill, whether as drafted or as it is proposed to be amended, involves the possible agreement by a child. Let us suppose that the child is not of an age when he can grant or withhold agreement. That might make it difficult for Clause 2(1) to operate.

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I may have misunderstood the Bill but, if not, it may be that an additional provision is required in order to avoid the need to seek agreement by a participant who is not of an age to grant agreement.

Lord Macaulay of Bragar: The noble and learned Lord may find a response to his observation at Clause 2(3), which deals with the age of legal capacity. It states:

    "any child who is regarded as a participant in family mediation by virtue of subsection (2) above shall have legal capacity to agree that information should be admitted as evidence if at the time when the mediation took place he was capable of understanding the nature and significance of the matters to which the information relates".

The noble and learned Lord raised his eyebrows—or his noble and learned brow. I had intended to raise the matter on the Question of Clause 2 standing part of the Bill because certain matters in relation to the child must be looked at closely between now and the Report stage.

Lord McCluskey: I am obliged to the noble Lord for pointing that out, but it does not deal with the matter which I raised. Subsection (3) gives the child the legal capacity to agree but it does not deal with the situation in which the child is not of an age to agree.

Lord Rodger of Earlsferry: Notwithstanding what was said by the noble and learned Lord, the provision is intended to deal with that matter. Only when the child is of such an age is his consent relevant. I do not understand the intention of the provision to relate to the case in which the child is so young that he cannot agree. However, perhaps the matter should be investigated further.

As regards the matter raised by the noble Lord, Lord Macaulay, one must remember that here we are not concerned with the question of children in relation to mediation in general but only in relation to whether what occurs in mediation should be admissible in evidence. While there may be other questions which relate to children in relation to mediation, we are now concerned only with the question of admissibility of evidence in relation to that matter.

As regards the point raised by the noble and learned Lord, Lord McCluskey, we shall look at it again to see whether anything needs to be done.

Baroness Carnegy of Lour: I am grateful to the noble and learned Lord, Lord McCluskey, for drawing attention to the issue. It is a matter of the changing practice of family mediation. The Law Commission report suggested that any child present at the mediation would be a participant. The Bill has slightly shifted the focus because the practice is changing. Children are not generally present at family mediation. Some 80 per cent. of children who are the subject of mediation are under the age of 12. It would not be in the best interest of most of those children to be present at mediation sessions involving adults with responsibility for them. That is because it is important that young children are not burdened more than is necessary with the differences which their parents or other adults concerned are seeking to resolve. Equally, they should not be put in the position where strange and divided loyalties are imposed on them. Family mediation is about parents and others with custody exercising their parental responsibilities properly.

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That means that when the agreement of the child is required for information to be admitted as evidence, it will be necessary for the situation to be explained to him or her and the child's view obtained by someone specially trained in talking with and relating to children who can determine how far that child is capable of understanding the nature and significance of the matters to which this information relates.

I have not discussed the subject with my noble and learned friend the Lord Advocate. The mediation procedure—and not the legal procedure—means that a child of any age who can understand what is happening may be asked whether he or she agrees, even though they have not been at the mediation at all. That is how I understand the Bill to fit in with current practice and that is my information from Family Mediation.

It may be that we need to have further discussions about the issue and decide whether this is the correct way to express the provision in law. Certainly it is the practice at the present time as regards Family Mediation Scotland. I hope that, given that explanation, the Committee will accept the amendment. If necessary, we can go into the matter further at a later stage.

On Question, amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord Macaulay of Bragar: The Bill began as a simple Bill but it now raises larger issues. In speaking to the Question, I speak in general terms. I believe that there are matters which require sober thought. All parties involved, looking in particular at the interests of the children, should get round the table to see whether they can hammer out a solution to problems which are beginning to emerge as the debate proceeds.

On Second Reading I raised the issue of the representation of the child. The noble Baroness's last comments focus on that issue. She shakes her head, but perhaps I may ask, if the child is to be the subject of mediation—and the child is included in Clause 1—who represents the child? It is not enough for the mediator to represent the child; that is not his function. Presumably the function of the mediator is to hold the balance between the parties and the child. I wonder whether we should be looking more closely at the role and function of the mediator and the consequences that will fall upon the person acting as the mediator as regards later court proceedings.

I notice that the Bill is entitled:

    "An Act to make provision for the inadmissibility as evidence in civil proceedings in Scotland".

I believe that a better phrase might be "the admissibility", but that is another matter. If people are being asked to come forward as mediators in those fraught situations, they must know where they stand. Are they to be called as witnesses in subsequent proceedings? Clause 2(1) states:

    "Nothing in section 1 of this Act shall prevent the admissibility as evidence in civil proceedings ... of information as to what occurred during family mediation if every participant (other than the mediator) in that mediation agrees that the information should be admitted as evidence".

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Therefore, the mediator may very well be caught in a no-win situation.

I am not trying in any way to obstruct the passage of the Bill. I am merely trying to foresee problems that might arise. If there is to be family mediation, notes must be taken of the evidence given in the mediation because they may be used at a later stage. It is not sufficient to call in the mediator to ask him what he has written in his notes, because we all know how defective notes may be.

I am rather concerned about the mediator's role. This afternoon on my way to your Lordships' House from the frozen north (as it was when I left), I was wondering, what would happen if, in the course of the civil proceedings—the Bill relates to civil proceedings—an admission were made by a husband that he threatened to kill his wife, or vice versa, as happens in these days of equality. If the husband then murders his wife, is the admission made before the mediator to be relied upon during the course of criminal proceedings?

I raise that question quite seriously. The O.J. Simpson trial starts with his threats to kill his wife and the call to the emergency services some years before the incident. Obviously, whoever killed her is not a matter for this Committee. But one can see the difficulties. If a man makes an admission before the mediator, and then goes on to kill his spouse, is the mediator to be called to say, "Yes, he did admit that he threatened to kill her on 23rd August 1992"? I do not know.

I raise those difficulties because I hope that we can discuss them. I do not wish to impede the progress of the Bill; but I wish to ensure that the interests of all the people that may be affected are protected. I hope that the noble Baroness will accept that I shall try not to be obstructive. I hope that we can sit around the table and sort out any problems which might arise.

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