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Baroness Faithfull: I am grateful to the noble and learned Lord. All the amendments on the list and in the Bill have been spoken to, and replied to by the noble and learned Lord. There is one outstanding amendment to which I would draw your Lordships' notice, and ask for the views of the noble and learned Lord. When the divorce proceedings are over the issue of access becomes a burning question, as does the issue of children growing up and changing their views. Has the noble and learned Lord considered in this Bill that there should be somebody a child can turn to?

I speak with very deep feeling because for two years I had to be in every Sunday evening when a father refused to return his children to their mother after an access visit. I had to go and fetch the children, quite rightly, because it was the court's order that they should be brought back.

It is very difficult because many parents--it might be the mother, it might be the father--make excuses that the child cannot go, that the child is ill, that the child has a football match to take part in, and access visits are not adhered to by the parents. Therefore, the child ought to have somebody that he can go to, to say, "I want to see my other parent but the parent that I live with does not let me." This is something that has not been covered and needs to be covered.

If a mother has custody of a child--particularly a boy--as the boy gets older he has a feeling and a need to see his father much more, so the order could be varied. This is Amendment No. 118 to which I draw your Lordships' attention.

I have not spoken to all the amendments, but the subjects have been covered and answered--except for this one--by the noble and learned Lord, and therefore I beg leave to withdraw Amendment No. 35.

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Amendment, by leave, withdrawn.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 35A:

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: I spoke about the substance of this amendment on Amendment No. 35, so I can deal with it very shortly. I strongly agree with what my noble and learned friend the Lord Chancellor said about the danger and prevalence of indoctrination. One was told all too often that everything possible had been done but the child had an invincible repugnance to seeing his mother or his father, as the case might be. That immediately set alarm bells ringing. For that reason it is better that the child should be kept as far as possible out of the situation which, as hypothesised, has reached the stage where one parent has filed a statement saying that he or she believes that the marriage has irretrievably broken down.

There will be some cases where the views of the child may profitably be entertained, but very few. Therefore, I tend to agree with the noble Earl, Lord Onslow, that it is far more important that the interests of the child rather than the view of the child should be represented. In the amendment I have suggested that that should be by the Official Solicitor, who is the normal mediator (and I use that term untechnically) between a child and a court.

I do not propose to move the amendment unless any Member of the Committee would like to speak to it.

[Amendment No. 35A not moved.]

[Amendment No. 35B not moved.]

4 p.m.

Clause 6 [Declaration to accompany application]:

[Amendments Nos. 36 to 38 not moved.]

On Question, Whether Clause 6 shall stand part of the Bill?

The Lord Chancellor: As I explained in relation to an earlier amendment, I have replaced the effect of Clause 6 in an earlier amendment. I believe that that improves matters. Therefore, I beg to move that Clause 6 do not stand part of the Bill.

Clause 6 negatived.

Clause 7 [Period for reflection and consideration]:

[Amendments Nos. 38A to 39A not moved.]

Lord Irvine of Lairg moved Amendment No. 40:

Page 4, line 14, at end insert ("during which the parties may attempt reconciliation for a period of three months, or periods in total aggregating three months, without prejudice to any of their rights under this Act and should be encouraged to consider attempting reconciliation by the mediator in any mediation which may take place under section 12 of this Act").

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The noble Lord said: I rise to speak to Amendments Nos. 40 and 55, both of which stand in my name and the name of my noble and learned friend Lord Archer of Sandwell.

A disappointing feature of the Bill is that it does not clearly establish the relationships between mediation within the year for reflection and consideration, the concept of the year itself and attempts at reconciliation, either within that year or beyond that year. It is because we value the institution of marriage so highly that we wish the Bill to recognise in the clearest terms the public interest in promoting reconciliation and, as a result, the public interest in upholding the institution of marriage. My noble friend Lord Stallard called attention specifically to that feature of the Bill in his speech at Second Reading, which is reported at col. 746 of Hansard for 30th November 1995. I believe this to be of central importance to the Bill and shall therefore spend a little time on it.

The first step is to look at what the Bill expressly provides. Under Clause 7 the year for reflection and consideration must pass before an application for a divorce order may be made by reference to a statement under Clause 4 that the marriage has broken down irretrievably. Under Clause 7(3) the period for reflection and consideration is one year, beginning with the day on which the statement is received by the court.

I invite the Committee to give close attention to subsections (5) and (6) of Clause 7. Subsection (5) provides that:

    "Subsection (6) applies if a notice requiring time to attempt reconciliation is given to the court by the parties (acting jointly) at any time during the period for reflection and consideration".

Subsection (6) states:

    "Any time falling--

    (a) on or after the day on which the notice is received by the court, and

    (b) before the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful,

    is to be disregarded in calculating the period for reflection and consideration".

Finally, subsection (7) provides that:

    "Where a continuous period of more than 18 months is to be disregarded under subsection (6), any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement made at any time after the end of the 18 months".

When I first read those provisions I thought that they operated as a disincentive to stepping back from the brink and attempting reconciliation. We are concerned with parties who start out in the belief that their marriage has broken down, who serve a statement to that effect and who want to be released but cannot be released until a year has elapsed. Yet there may be nagging doubts. At any stage in the mediation process the cold realities of the consequences of divorce may be brought home to the parties. They should be told by the mediator that attempting reconciliation remains an option but that option is not precluded by participation in mediation. Also, there should be no disincentives put in the way of attempting reconciliation during the year for reflection and conciliation.

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My first thought was that that provision penalised an attempt at reconciliation when the attempt at reconciliation ends in failure because its effect is that the year for reflection and consideration ceases to run while reconciliation is being attempted. It was that thinking that lay behind the detail of Amendment No. 40. I thought that Clause 7(2), combined with Clause 7(5) and (6), amounted to a warning: beware if you attempt a reconciliation which fails because you will then delay your divorce by the length of the period of your attempt which has sadly failed. I now think that I was probably wrong and that is not the intention of the Bill. However, I still desire to say that the Bill is seriously lacking in clarity and should be strengthened.

The basic problem seems to be that it defines what is to happen if the parties give notice to the court that they require time to attempt reconciliation but does not provide what is to happen where parties attempt reconciliation during the year for reflection and consideration but give no notice to the court under Clause 7(5). That, I think, is a great deficiency.

Clause 7(5) deals with attempts at reconciliation which the parties notify to the court. It does not deal with attempts at reconciliation which take place during the year for reflection and consideration but which are not notified to the court. The parties could be forgiven for thinking, standing the appearance of the Bill, that that is not an option available to them.

I allowed myself to be misled into thinking--I hope that I was misled--that the only attempts at reconciliation which the Bill recognised were those of which the court was given notice by the parties. However, I hope and now think that I am wrong about that. As I now see it--the noble and learned Lord will correct me if I am wrong about the intention of the Bill--Clause 7(5) and (6) are intended to be beneficial. They provide that while the year for reflection and consideration is running--let us say, for example, that it has run for three months--the parties can give notice to the court of attempted reconciliation and as much as 18 months may elapse without extinguishing that part of the year which has already run. If at the end of the period of attempted reconciliation, which may be up to a maximum of 18 months, the attempt proves to have failed, the parties then have credit for the part of the year before their attempt. The year starts to run again and at the end of the year application for a divorce order can be made. If it is not immediately made, the parties then have a further period of six months within which they may apply for a divorce order under Clause 4(3)(b).

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