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The Lord Chancellor: It may help to shorten the matter if I confirm that the intention of the Bill-- I certainly would wish to consider whether it can be clarified--is to give parties the option of stopping the clock running so that the period of attempted reconciliation is additional to the year. If the parties go for, say, a year trying to reconcile, then that is not counted within the period.
My noble friend Lady Young talked yesterday about all that had to be done within the period, and spoke for a lengthening of the period. If the parties are able to try to effect a reconciliation, the period spent on that stops
Lord Irvine of Lairg: I am relieved to know that my second thoughts on this subject were correct in the view of the noble and learned Lord. An attempt may be made at conciliation up to a maximum of 18 months without that stopping the one year clock running; and that clock will resume running after the expiry of the failed period of reconciliation of 18 months or less. That I understand.
That allows me to come straight to the deficiency in the Bill as I see it. What is the position, not expressly dealt with in the Bill, if the parties attempt a reconciliation without giving any such notice? I think, but I am not sure, that the intention must be that the year for reflection and consideration continues to run concurrently with the attempt at reconciliation. If it fails, the period of their attempt counts towards the year and, as the parties are determined on divorce, application may be made within six months of expiry of the year under Clause 4(3)(b). In other words, if you invoke Clause 7(5)(6) and (7), in the language of the noble and learned Lord, you stop the clock running. But if you attempt a reconciliation without invoking those provisions, and without giving any notice to the court, as I understand it you do not stop the clock running.
I have to say that I see nothing wrong with that provided that I am right in my supposition that that is what the Bill intends and means although it does not address attempts at reconciliation not notified to the court. It appears to me that there is no inconsistency between the year for reflection and consideration being treated as continuing without suspension during a period of attempted reconciliation. I would say that by definition actually attempting reconciliation is the highest order of reflection and consideration of whether a marriage can be saved. The best way to reflect and consider is to try out the marriage again in a spirit of attempting reconciliation.
I am anxious to know whether the second part of my interpretation of the provisions--arrived at, I have to say, with a certain amount of difficulty--be correct. The noble and learned Lord has said that I am right about the intention of Clause 7(5),(6) and (7). I am relieved at that. However, I am concerned to know whether I am right in the second part of my understanding of what the Bill must intend. In my view, it is critical that the Bill expressly addresses attempts made at reconciliation not notified to the court during the period of a year for reflection and consideration.
I also suggest that the clause should make it express that attempts at reconciliation, not the subject of any notice to the court and therefore outside Clause 7(5) and (6), may take place during the year for reflection and consideration without prejudice to any of the parties' rights under the Act; and, separately--and, with respect, I suggest to the noble and learned Lord, importantly--there should be an additional subsection which provides that the parties should be encouraged by the mediator to consider attempting reconciliation.
As I observed in Committee yesterday, I well appreciate that mediation is not about reconciliation. The mediator is not a reconciliator. He is a mediator of solutions for the parties to try to agree once the one issue upon which they have agreed is that their marriage has broken down. I see no reason why the Committee should not put the mediators under a statutory duty to encourage the parties to consider attempting reconciliation. That does not mean, and it would be unwelcome to the mediators if it did mean, that the mediators are obliged to engage in a process of counselling, to try to persuade the parties to be reconciled. I entirely accept that that is not what mediation is about. However, what I am suggesting is that the mediators should be told that in the course of mediation they must say something to this effect: "Do consider attempting reconciliation. Although you have entered this mediation process, you should not think that that forecloses the option. That option remains". If the parties were to express an interest in pursuing the option, then the function of the mediator will be to refer them to counselling, with that in view.
Those are the proposals which I now think it right to put before the Committee for consideration: to ensure that the relationship between mediation and reconciliation is clearly established alongside a duty in the mediators to inform parties who come before them in the mediation process that mediation is not a process which has a momentum of its own and precludes the option of reconciliation. On the contrary, that option remains and should be followed by the parties, if they so desire. I beg to move.
The Earl of Onslow: I have listened carefully to the noble Lord, Lord Irvine. It seems to me that if peradventure there should be a change of government in the near future and if he should be sitting on the Woolsack, if he cannot now understand and makes heavy weather of the Bill, either he will be a rotten Labour Lord Chancellor or the Bill is not drafted clearly.
A further point struck me. It is that the clock ticks and there is a period of mediation and reconciliation. As the Committee knows, the route down which we ought to go is mediation and conciliation, if possible. However, if mediation fails, people must wait longer for a divorce, which will be a disincentive for the conciliation process to work. I suggest that the Bill is one of the most socially important which Members of the Committee will have before them. If we are to get the Bill right then we must achieve the careful balance between making a clean break, with the minimum upset, and making the maximum effort at mediation. We must get that balance right, and therefore it must be absolutely clear on the face of the Bill exactly what we mean. We ourselves must be equally clear. If the noble Lord, Lord Irvine, is to be anything other than a rotten Labour Lord Chancellor, I am sure that we ought to get the wording slightly clearer than he finds it.
Lord Marsh: It is important to draw a clear line between reconciliation and mediation. When the majority of couples reach the stage of the seriousness that we are considering, with the desire firmly reached by at least one party and frequently by both parties, there is a great danger. If all goes well, the mediator has the ability to turn the discussions into a civilised arrangement, a civilised break-up, certainly to the benefit of the children. There is a danger, however, that at that stage the mediator may begin to recommend conciliation to people who, as the noble Lord said earlier, may well have had many weekends away together in the hope that things would all come right. They may have had a holiday together in that hope; they may have spent endless hours discussing the matter. At a point where they are trying to get together and make the best of the separation in everyone's interests, they may suddenly be told by the person seeking to achieve that: "Why don't you try reconciliation?" If I understood the noble Lord correctly--and that may not be the case--if that were to happen, it would devalue the role of the mediator which is practical and important.
Lord Coleraine: The noble Lord, Lord Irvine, referred to Clause 7 which I find comparatively straightforward and clear cut. It may be a fault on my part and I wish to test my understanding by asking the noble Lord to explain the exact significance of the words,
He proposes, under Amendment No. 40, to add those words to Clause 7. It seems to me that, during the period for reflection and consideration, whether they attempt to reconcile for periods of more or less than three months, there is nothing in the Bill to suggest that it would be
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