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Lord Wilberforce: I should like briefly to suggest that Amendment No. 158A may be quite useful in practice. Of course, it could be said that such provisions will be held in mind in any event by any experienced court dealing with the matter and that there is no need to state them on the face of the Bill. Indeed, that is generally true in relation to this sort of provision. However, one might bear in mind that not all courts are equally experienced and that a number of other persons will be involved with the application of such considerations; for example, the parties' legal advisors or the parties themselves.
I believe that it might be quite useful to have such provisions on the face of the Bill so that they may be present to the mind of the parties at the stages when such matters are being considered. No doubt they would also find their way into any information pack which may be prepared for the use of parties or their legal advisers. Therefore, although the proposed provisions may be self-evident and tautologous, I believe that they may serve a useful purpose in practice. I should like to express my support for them.
Earl Russell: For the first time during the proceedings on the Bill, I am glad to be able to take the chance to agree with the noble and learned Lord, Lord Simon of Glaisdale. Indeed, we are back on familiar territory and I am very pleased to be there. I entirely agree with the noble and learned Lord that having the child interviewed in the presence of each of his parents, whether jointly or severally--and I am not quite clear about that--would put that child in a position whereby he would not be quite sure whether he was executing the judgment of Solomon or was its victim. It would be a very painful situation.
However, I have a great deal of sympathy with the intention behind the amendments. I imagine that one of the problems that they are intended to address is the fact that so many children lose contact after divorce with one of the parents, usually the father. The noble and learned Lord and I exchanged words on the matter on Second Reading. I entirely agree with what he said about the difficulty involved in doing anything about it. But if the amendment--or some other version of it--could help, I believe that it would be well worth trying.
the welfare "principle" must be assumed. It may very often be correct to do so, but I should like a little more room for discretion involved than the present wording allows. I say that because one can get some very unexpected reactions. I have in mind one case which was not actually a custody case. I must apologise, first,
The child of two Jehovah's Witnesses aged eight was knocked down, severely injured and was bleeding to death. The parents refused to sign the form giving permission for a blood transfusion, as they would because of their religion. A judge was summoned to the child's bedside; a care order was made; the transfusion was given, and the child recovered. However, the parents refused to have the child back because they said that it was no longer the same child.
I believe that the judge and the hospital in that case did right. However, it goes to show quite how much one must pause and consider the unknown reactions that may arise. If one attempts to enforce access with a legal big stick, the reaction of one or the other parent may be quite unpredictable. Such a generalised discretion as the one suggested would, perhaps, force the court to run upon a waterfall. I believe that it should have discretion to hold back from that waterfall if it sees fit.
As regards subsection (a) of Amendment No. 158A, I would also be interested to know how the reference to "the conduct" of the parties impinges on the very long debates that we have had about fault during the course of the proceedings on the Bill. I am not able to work that out in the time available; and, indeed, I certainly do not intend to detain Members of the Committee. However, if fault is to come into the Bill, I believe that it should come in through the front door and not accidently by the back door. If we bring such a provision into the Bill accidently, it may create no end of legal confusion afterwards.
and found myself in exactly the same dilemma on the fault question. In the actual granting of a divorce, I believe that the fault question should be left outside. However, it is impossible to talk about custody arrangements without taking into account the behaviour of one or both of the parents. That suggests to me that we should have a little bit of "front door", "back door" or twin tracking--or whatever the latest cliche is.
I can see two distinct considerations. One is bringing a contract to an end in the most civilised way, with all the hoops that one has to go through to do so: the other is the matter of dealing with the fall-out from that contract being broken. One cannot divorce--I am sorry that was a rather silly pun which was not intended; I meant to say that one cannot separate the conduct of parents from child responsibility, but you can and should separate it with the end of a contract.
Lord Stoddart of Swindon: I support the amendments. It is helpful that the courts should have guidance. The guidance that is given here is quite firm and will ensure that the interests of the child are safeguarded.
We are very well aware of the recent trend that says that two parents do not matter and that one parent will do. I do not speak for Families Need Fathers, as suggested by the noble and learned Lord the other night, although I very often agree with what it says.
The Lord Chancellor: I did not mean to suggest that. The noble Lord has stated that he often agrees with that organisation. I meant that he put forward views which closely resemble its views in a number of respects.
Lord Stoddart of Swindon: The noble and learned Lord is correct, and I often sympathise with its views particularly in relation to access to children. All too often the courts do not enforce access orders which they have made. Children are then removed from the vicinity where the father lives which makes access extremely difficult and costly.
A child may be taken away from his natural father who will be devoid of all contact with his own child, whereas a stepfather will have daily access, and that access could be detrimental to the interests of the child. It is therefore in the interests of the child that there should be contact between both natural parents. That fact cannot be over-emphasised.
The noble Baroness had done a great service in bringing the amendments before the Committee. I know that the noble and learned Lord will take these matters very seriously. The existing arrangements are not good enough. There is insufficient provision in the Bill to safeguard the interests of children and to ensure that the rights of both parents in relation to children are properly taken into account.
I understood that considerations of residence and contact are always dealt with under the Children Act. Under that Act the kinds of principles that are stated in Amendment No. 158B are carried out as a matter of common practice. It is good practice for a welfare officer to interview a child in the presence of each of its parents. If that is not done it is usually the subject of comment by the court and something that the court would take into account.
The Lord Chancellor: The court has a duty to be satisfied in relation to arrangements for children and has powers to enforce the Children Act which is the legislation that deals with private disputes between parents about children, and allows the intervention of the local authority, should that be necessary. The principle is that the court should not intervene and no public authority should intervene unless it is necessary. The family is best able to decide these matters, but the Children Act facilitates the intervention of the court.
The principles espoused in the Children Act have been operating for a considerable time. The noble Lord, Lord Meston, will correct me if I am wrong, but I understand that those with day to day involvement have
One of those principles is quite plain; that is, that those with parental responsibility for children should be in contact with them unless there is a reason to the contrary. That is the central point in my noble friend's first amendment. That principle is already embodied in the Children Act.
The Bill deals with arrangements following disputes in divorce, but disputes about residence or contact with children are dealt with under the Children Act, whether they arise before or after a divorce or where there is no question of divorce and the parties are merely in dispute about where their children should be.
A situation that often occurs is where there has been abuse or cruelty by one parent to the children. That would normally displace any idea of contact. It would depend upon the nature of the cruelty, and there is always the possibility that the person responsible will repent, but that kind of consideration generally prevents an order for contact with both parents.
I agree with noble Lords who have said that it is extremely important for both parents to have contact with children after divorce. All the research shows that to be correct. One of the principles that moved me to put forward the Bill was to avoid difficulty in that area. In that sense my noble friend Lady Elles and myself are in agreement.
The first amendment is unnecessary because of the provisions in the Children Act which are presently enforced. The court must consider all the circumstances, for example any risks in relation to one of the parents setting up with somebody else, depending upon the nature of their relationship. Those circumstances would be taken into account when considering arrangements for residence and contact.
In relation to the welfare officer provision in the second amendment, under the Children Act there has been an adoption of national standards for probation service Family Court welfare workers. The Family Court welfare service is part of the probation service. Those standards were introduced on 1st January 1995 in the light of previous experiences. It is a framework to ensure that Family Court welfare work is carried out consistently and fairly. The standards require the court welfare officers in preparing reports carefully to consider whether or not it is appropriate to see the parties separately or together, to visit each party at their home, to contact other relevant agencies, for example a school, doctor or health visitor, to see each parent alone with their siblings, to see each child with both of its parents, to see each child with each parent at their home
It is emphasised that the inquiry should be even-handed and fair to both parties. The standards also specify that the report should give details of the inquiries undertaken, including who was seen at each interview, where, and the source of any information included in the report. Thus, the court welfare officer's attention is specifically drawn to the need to consider the full range of options for interviewing the child and his parents, but the officer retains the flexibility to decide exactly what is appropriate in each individual case. In addition, the court will be made aware in the report of what inquiries have been undertaken. The court is able to consider the weight to be given to the report along with all the other evidence before it.
I suggest to my noble friend that that standard which is adopted throughout the court service gives effect in a good general way to the principles that she has embodied in Amendment No. 158B. If my noble friend wishes it, I can give her a full copy of the standards.
I hope that in the light of those assurances my noble friend will feel able to withdraw the amendment, leaving the mechanisms of this issue to the functioning of the Children Act.
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