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All too often, when parents decide to divorce, they do not even think about the views of the children; indeed, many of them believe that their children have no view at all. The proposed amendments would at least ensure that parents addressed the problems which their divorce might bring about, especially as regards their children.
Lord Annan: I very much hope that the amendment moved by the noble Baroness will be sympathetically considered. The noble Earl is right to say that the children's interests should come first. However, I believe that the noble Baroness made very clear in her speech that their views should be taken into account, but that the settlement might not be in accordance with those views.
I tend rather to agree with my noble and learned kinsman Lord Simon who suggested that the Official Solicitor was, perhaps, the right channel for communicating or obtaining such views. However, I very much hope that a sympathetic official from the Official Solicitor's office would be involved, as I have always imagined that the Official Solicitor somewhat resembled Dickens' Mr. Jaggers.
Lord Elton: I am in no way mocking the amendment. I regard this as something painfully close to experience. We have a great duty to do our best with it. I was trying to suggest--although, perhaps I did not spend long enough on it with just one sentence--that there should be some question of a guardian ad litem, or some other source, to interpose between an infant and the law.
Baroness Seear: If it is to be a guardian ad litem or the probation officer attached to the court--and it is very likely to be the latter--that underlines the importance of giving the right training to such officials. Indeed, it is important for those probation officers to receive the right kind of training, and not the kind of training with which we have been presented in recent Home Office programmes.
Baroness Faithfull: Perhaps I may make a few comments before my noble and learned friend responds. The intention behind the amendment is to ensure that there is a good relationship as regards the child, the mother and the father, whatever the circumstances may be. Mediators in the mediation service do not see the child by law, but they do bring to the notice of both parents the fact that each of them should try to have a relationship with the child and that they should be able to talk to the child in a way that is not acrimonious. That should help the child or children to understand that the fault is not theirs and enable them to build up a relationship with both parents.
The Lord Chancellor: It is clear that the amendments to which my noble friend has spoken and which the noble Baroness, Lady David, with her great experience in the area, supports--although, sadly, she is not able to be with us today--draw our attention to an extremely important aspect of the matter. The need for considering the children's interests and also for having regard in appropriate circumstances to their views is quite fundamental.
By way of introduction, perhaps I should point out that we do have in place the Children Act 1989 which contains very clear legislation dealing with matters which relate to contact with and the residence of children. Indeed, there are provisions for guardians ad litem and for the Official Solicitor to be involved in some cases, and so on. Therefore, assuming that it reaches the statute book, the legislation will not stand by itself.
I believe that I am entitled to say the Children Act has proved to be extremely good as a basic structure for the law in this area. I believe that those who practise in the area universally agree with that view. Of course, there are questions about some other aspects of that Act which will be dealt with later in this legislation regarding regulation in respect of schools, and so on. However, the part of the Children Act that deals with the matters now under discussion has, I believe, proved to be very satisfactory.
One of the most satisfactory aspects of the Act is that it has generated a great deal of interdisciplinary co-operation on matters affecting children; for example, psychiatrists, child psychiatrists, doctors and the like have been able to come together with lawyers in trying to promote the interests of the children. Of course there are difficulties involved, one of which is the unnecessary delay which sometimes occurs in such matters when a number of experts are involved. However, we are attempting to tackle that situation. I want to emphasise that the Children Act stands very much at the forefront of matters concerned with children.
I take the sense of the proposed amendments to be that the children affected by divorce should very much be kept in mind. I have said before that one of the principal reasons that I sought to bring the Bill before this Chamber is just so that the effect of divorce on children should be as minimal as is possible, thus enabling both parents to maintain a relationship with their children after they divorce. I believe that that is a most important consideration in the future development of the children after the sad event and trauma of divorce.
Of course, there are other questions to be considered. One of the most difficult is the issue of one parent or the other seeking to indoctrinate the children with views that are adverse to the other parent. Those Members of the Committee who have experience in dealing with such matters have, I believe, found it to be one of the most difficult situations to tackle. Once a child has been indoctrinated, let us say--and this is just an illustration, because it could obviously happen the other way around--by the mother against the father, it becomes very difficult to maintain satisfactory contact between the child and the father. Very often the child gets into a state when the contact starts, and the father has little opportunity to influence the child to try to change the situation.
Similarly, the court would have great difficulty in such a case because the mother may say, "It is terribly bad for the child; it is upsetting the child terribly. We can't handle this". Therefore, the contact would have to stop. However, the court may say, "You must allow it", and, ultimately the wife may say, "It is just doing the child a great deal of harm". Of course, the only real and ultimate enforcement is some kind of contempt proceedings, and the benefit of that to the child would be absolutely negative. Indeed, I have been in such a position as a judge. One feels powerless. Therefore, it is most important that we do what we can to prevent such a situation developing.
My submission to Members of the Committee is that the most likely avenue for help in that connection is the discussion that the mediator will set up. I believe that my noble friend really took up that point towards the end of her address.
There are two possibilities. First, there is the possibility where the mediator deems it right, in the circumstances of the particular family, that the children should be involved in the discussion if that is appropriate. If it is not appropriate, my noble friend
If the family situation was such that a reasonable discussion would be possible in that form, that would be a good way of ascertaining the views of the children and helping to protect their interests. If that was not possible, it may be that a separate meeting between the mediator, or an assistant to the mediator, and the children would be required. Then, informed by that meeting, the mediator may be able to advance matters.
As my noble and learned friend Lord Simon of Glaisdale said, I have responsibility for the Official Solicitor's Department. I am second to none in borrowing the expertise and care of the Official Solicitor, but I am most anxious that the expertise of the Official Solicitor is not used in cases where he does not have anything particular to contribute. The Children Act 1989 makes quite elaborate provisions to allow for guardians ad litem, and so on, depending on the circumstances of the case, if there needs to be legal discussion about what should happen to the children.
As to Amendment No. 35, there is the problem of parental responsibility. Parental responsibility does not always coincide with children who are children of the family, and it is really the children who are affected by the divorce that must be taken into account. For example, step-children are often involved in the family and would be affected by a breakdown of that family, even though there is no parental responsibility. I have already mentioned the difficulty of getting children to take sides, and so on.
As to Amendment No. 81, this matter is being developed in relation to the situation under the Children Act. The officer involved here would have a multiplicity of roles in providing information and advice, liaising with children's attendance or otherwise at court and advising on whether separate representation is required. These are rather different functions and it would be difficult for them to be performed by one person. Court staff are well used to dealing with queries from families, for example with respect to arrangements available for children to attend court. All care and family hearing centres have dedicated family sections whose staff have specific expertise in this area. Although of course they do not have advisory functions, they can give information.
The court service is currently considering a recommendation of the Children Act Advisory Committee--which is monitoring the way in which the Children Act is functioning in practise--that a liaison officer should be appointed to each court dealing with
The Bill contains provisions in relation to Section 41 of the Act which give power to the court, if it thinks that an order is required and that further delay is required, to postpone the granting of the divorce until these matters are satisfactorily dealt with.
I do not think my noble friend spoke particularly to the later amendments--if we get to them, a fairly detailed consideration will be required--but, on the principle of the matter, I would suggest that the best way of handling this is that it be a specific part of the remit of the mediators that these matters should be taken into account, with the court having the responsibility of being satisfied with the arrangements for the children of the marriage--which is already provided for in the Bill--and with the powers that flow from that, to which I have referred.
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