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Lord Stoddart of Swindon: Before the noble and learned Lord, Lord Simon, replies, I wonder whether the noble and learned Lord the Lord Chancellor could reply to my question. Does he believe that this Bill will increase or reduce the incidence of divorce?
4.45 p.m.
The Lord Chancellor: It is always tempting to don the mantle of the prophet. One commentator on matters of divorce law cautioned very strongly against doing so. It would be unwise for me to disregard that caution. Many factors can affect the rate of divorce. The precise terms of divorce law are only one such factor. However, what I do claim for the Bill is that it provides the best framework that I have been able to come up with so far to encourage people whose marriages get into difficulty to try to heal their relationship rather than divorce. Therefore the tendency of the Bill is to reduce rather than increase the number of divorces. It will not be the only factor in the future, assuming that it passes into law in something like its present form, that will influence the number of divorces at any given time.
The Earl of Perth: I was particularly interested in the noble and learned Lord's description of mediation. It seemed that he was saying that if we have mediation, as part of it we may have reconciliation, and that is what we want. But so many of us feel that reconciliation is the more important factor. It is not clear from the Bill as I read it that reconciliation is the purpose rather than mediation, which is to make things easy for the divorce. I hope that we can try to get round this dilemma and be quite clear that, before there is mediation, there should be a separate section dealing with reconciliation.
The Lord Chancellor: Perhaps I have not properly explained the situation. The point about mediation that I was trying to make is this. It concentrates on what the relationships will have to be if the parties go forward to a divorce. They need to discuss that. It involves past conduct because that raises questions in relation to the distribution of property. It is quite wrong and unwise to suggest that reconciliation and mediation should be separated.
I have heard it suggested that I do not know the difference; I believe I do understand the difference. My point is that it is unwise to put them into separate, watertight compartments. My experience, such as it is, is that when people look to the future and see what the form for the future will be, it may well persuade them that they are better off with what they have. Therefore, instead of going forward to destroy their relationship completely, they may go back to try to repair it. If parties have reached the second part of the divorce stage—namely, after getting information, they want to go ahead—the situation has gone a fair distance. I want to make sure that there is no stage before the very end at which reconciliation is finished. It is important to keep it alive for as long as possible. One factor that
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may assist is consideration of just what the future will be. Apart from anything else, the most obvious consideration is that two households will not be able to live as cheaply as one. The dawning of that realisation on some people might just have a salutary effect on whether or not they want to go forward.
Lord Coleraine: I am sorry to detain the Committee at so late a stage in a long debate, especially after my noble and learned friend on the Front Bench has spoken. However, there are points still to be discussed and I wanted to hear his remarks before doing so. We have not yet delved into, and got to the bottom of, the question of parental conflict and whether it is the conflict or the divorce that so damages the children.
The right revered Prelate the Bishop of Liverpool, who is no longer in his place, referring to remarks made a fortnight ago, made the point that the period for reflection and consideration—presently 12 months—is a long time in the life of a child. It is a long time during which that child may be subjected to conflict. He contrasted the 12-month period with a possibly longer period of 18 months, but in doing so, he begged the question. He assumed that at the end of the 12-month or 18-month period the conflict would cease. But it does not cease. It goes on. The real question is how long it would take to resolve the problems for the future which affect the children. It is not sufficient to say that 12 months is a long time in the life of a child.
The White Paper has a great deal to say about parental conflict. It says at paragraph 2.11:
"While children are inevitably affected when their parents separate, research shows that it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than separation and divorce itself".
"Research has shown that children suffer and are damaged as a result of conflict between their parents, whether the parents are living together or apart".
The word "conflict" is there emphasised.
"As noted in Chapter 2, while these children are inevitably affected when their parents separate, it is conflict between the parents which has been linked to greater social and behavioural problems among children rather than the separation and divorce itself".
"As mentioned earlier, research has demonstrated that children are greatly harmed by conflict between their parents, especially if they are drawn into that conflict as go-betweens or intermediaries, as happens all too often in present divorce cases".
What exactly is the recent research which has so clearly established that proposition? That is an important question, on which many other questions depend and which I hope my noble and learned friend will be able to answer, though not necessarily today. The kind of points that depend on the answer to that question are questions such as the length of the period of reflection and reconciliation and whether there should be some right for a limited period of one spouse not to be divorced against his or her will.
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For my part, I am happy to concede that I am not in a position to give any definitive judgment on the value of the Exeter Family Study, to which reference was made earlier in the debate. However, I remind the Committee that, unlike the White Paper, it makes no categoric statement as to whether parental conflict or divorce is worse for children. The study merely states that children whose parents have been through divorce are worse off than children whose families remain intact. The study states that the data suggests that parental separation itself has a major association with difficulties for children. But the study goes a little further. It suggests that the belief that it is better to resolve a high conflict situation by ending the parental relationship than by allowing it to continue may, in fact, be a misunderstanding of the situation.
It appears to me that the authors of the report make their points with scrupulous integrity and, given the appalling consequences of divorce for the children involved in that divorce, with the loss of parents, it must be up to those who believe that in high conflict families divorce is in the best interests of the children as well as of the parents to produce some evidence. That has not yet been done. It is taken for granted in the White Paper, even if stated to be demonstrated by recent research.
The general question is whether families should stay together for the sake of the children or whether they should separate for the sake of the children. Both points can and have been argued. Overwhelming logic suggests that it is for those who argue the second case to put their cards on the table and show exactly why they feel that way.
The Lord Chancellor: Perhaps I may just supplement what I have already said. First, in connection with these amendments, I am suggesting that the process—assuming that there is a divorce—should minimise the following conflict. At this juncture I am not concerned with whether or not divorce is or is not better than constant squabbling. That must be a matter of degree, on which it would not be for me to make a judgment. It must be for the parties to judge ultimately whether or not their relationship can survive the conflict.
The point that I am trying to make is a separate one; namely, that it is quite clear from every study that if a child retains a good relationship with both parents the child will be the better for it. Therefore, the thesis on which I am operating is that we should do nothing to damage the relationship of the child with either parent by introducing any unnecessary conflict between the child and parents in the divorce process.
Let me answer the question put by the right reverend Prelate the Bishop of Liverpool. He pointed out that it is not conflict that is at issue when judging the length of the period. What is at issue then is the question of uncertainty: how long should that uncertainty be which is involved in the period of consideration and reflection? It has been suggested that a year is a long period of uncertainty in the life of a child. I agree that that is a difficult question and we are not absolutely sure of it at present.
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