Previous Section Back to Table of Contents Lords Hansard Home Page

The Earl of Onslow: My Lords, perhaps your Lordships will consider the following scene. Two children say that they want their parents to stay together and not to be divorced. The court agrees with them and the divorce is not granted. Then the father or the mother--I shall not be sexist--runs off with somebody of the opposite sex. Because he or she is not allowed to divorce that person lives with somebody else, unmarried. Unfortunately, one cannot stop human beings behaving in such a way. It is how people behave. It is important that children's interests are taken into

22 Feb 1996 : Column 1177

account but I believe that to make them paramount is going too far. I believe that my example shows that to be a perfectly reasonable view to take.

The Lord Chancellor: My Lords, I will yield to none in my desire to do everything that the law properly can to protect and promote the interests of our children. I believe that it is fundamental to our way of life. I also believe that the best possible surroundings in which children can be brought up is a happy home, with father and mother happily married providing them with a secure background. Sadly, there are many circumstances in which that is not possible. One of them is where father and mother reach a situation in which they cannot possibly live together.

As was said by the noble Lord, Lord Northbourne, if the parents were acting properly, in considering what they should do they would consider the interests of the children paramount. However, the court is faced with what the parents have actually done. All noble Lords will know that there are cases in which one parent has gone off and left a young child in order to pursue a different way of life with somebody other than the child's other parent.

In that situation, where the question is, "Should the parents be divorced?", the court has very little option, assuming that the grounds of divorce, whatever they are, are made out, but to grant a divorce. We shall consider the grounds of divorce in more detail when we debate the amendment tabled by my noble friend Lady Young. In my submission, the correct approach is to say that matters concerned with the welfare of the children are subject to the provisions of the Children Act which, in my view, is a well-balanced, practical and efficient method of dealing with that most important matter.

As your Lordships know, I have proposed an amendment to the hardship clause in order to take account of the possibility of the decree of divorce creating hardship for the children. Your Lordships may have seen that some people believe that I am suggesting that children should become involved in the disputes of their parents. I need not point out to your Lordships, because your Lordships know, that I have done no such thing. But it is extremely important that we do not do that if we can possibly avoid it. I believe that one of the worst things that can happen to a child when parents are divorcing is to become involved in the disputes between the parents in such a way as to sour relationships between that child and both parents. It is in the fundamental interests of the child that the child should maintain as good a relationship as possible with both parents, notwithstanding the divorce. That is the primary consideration which has led me to put this Bill before your Lordships.

Therefore, I submit to your Lordships that it is not appropriate to accept this amendment. As I said, I have proposed amendments in relation to the hardship bar and in that I was trying to take account of the views of your Lordships in Committee. I have relaxed the hardship bar which will now apply to all grounds for divorce, assuming that my proposals are carried. I have accepted also an amendment proposed by my noble friend Lady Elles that the court should take that into

22 Feb 1996 : Column 1178

consideration when looking to see whether the powers under the Children Act should operate. In my submission to your Lordships, that is the right way to proceed, with the paramountcy of the children coming in where there are questions about the arrangements for them: where they should live; with whom they should have contact; prohibited steps orders and so on.

Therefore, with the greatest possible respect to my noble and learned friend, I hope that he will withdraw this amendment on the basis that we are all committed to doing everything possible to promote the interests of the children in an appropriate manner in this sad situation.

Lord Archer of Sandwell: My Lords, before the noble and learned Lord sits down, I wonder whether he will assist me on a matter which I was proposing to raise on a later debate. I wonder whether he will assist your Lordships as to the meaning of the word "paramount", referred to by the noble Lord, Lord Northbourne. I do not recollect a case in which it was judicially defined. Does he understand it to mean the most important of the interests to be considered or does he understand it to mean that it should be conclusive to the total exclusion of all other considerations?

The Lord Chancellor: My Lords, I take it that it is the most important interest to be considered and to dominate all other considerations. It may not be easy to give a full definition. I do not have a dictionary at hand nor, regrettably, in my head. But that is the way that I understand it. Where the court is operating under the Children Act, its leading, most important and all-prevailing consideration is that of the interests of the child.

However, that may be different where there is a dispute between parents in relation to matters. I give your Lordships one example which does not come completely out of the context of this Bill but is related to it. In the distribution of property between the father and mother, are the interests of the children to be paramount in that sense? Obviously, something must be done about providing for the father and the mother, and the children will have to be provided for properly. But I submit to your Lordships that in that case the interests of the children should not have the controlling influence which one would expect them to have as regards the question of where the child is to reside. That may not be a very good answer but it is the best that I can give.

Lord Renton: My Lords, before my noble and learned friend sits down, perhaps he will bear in mind--and it supports his argument because, quite frankly, he has converted me--that "paramount" means overriding in this context in particular.

The Lord Chancellor: My Lords, I am very grateful to my noble friend. He has answered the question much more briefly than I did.

5.45 p.m.

Lord Simon of Glaisdale: My Lords, I am grateful to those noble Lords who have contributed to the debate and most of all to those who have supported the amendment.

22 Feb 1996 : Column 1179

At the outset, I deal with some subsidiary points. First, I was very glad that my noble and learned friend adopted the argument that I ventured to put forward in Committee that it is highly detrimental to the interests of a child whose parents are in conflict to be brought into that conflict.

Secondly, my noble and learned friend posed a difficulty just before he sat down for the first time. He referred to the formula when it comes to the division of property. That is quite irrelevant because this Bill is not concerned at all with division of property.

In Committee, I submitted some schedules which dealt with co-ownership of the matrimonial home and its chattels. My noble and learned friend demurred from them being made part of the Bill. I understood him to say--I think I prematurely understood him to say--that he would refer the matter to the Law Commission. I have only just received a letter from my noble and learned friend, for which I am grateful, which does not appear to be quite so encouraging as that.

But the point is that there is no question at all of division of property under this Bill. Therefore, with all respect to my noble and learned friend, the point that he made was entirely irrelevant.

The third point that I wish to make is about the word "paramount" which has been referred to by more than one noble Lord, including my noble friend Lord Northbourne. That is a phrase which is perfectly well-known to the law. The original guardianship of infancy says that the welfare of the child was to be the first and paramount consideration. Parliament took over that phrase from the old Court of Chancery whose formula it was in its jurisdiction over children. If I were asked to define it, I would be obliged, I think, to say that "first" and "paramount" is really a pleonasm. A first consideration is a consideration which is more important than any other. A paramount consideration is a consideration which is more important than all others, and in relation to a child, I hope that that would be the test.

The noble Earl, Lord Russell, with whom I am far happier in agreement than differing from him, said that the formula is all right in the context of the Children Act but not in any context whatever. But of all contexts, surely the context of the Family Law Bill is where it is most relevant. It is most relevant because the child is part of a family whose relationships we are considering. It is most important because the welfare of the child is paramount because the whole future of society depends on the children. It depends on the children, even if we did not have abundant evidence by now that divorce is damaging to the children whose background is disrupted.

My noble and learned friend was kind enough to send me recently the report of the Exeter University Research Group. But there is evidence upon evidence to suggest that disruption of the family background is damaging to a child. It goes back to the 1930s and the researches of Carr-Saunders who found a clear link between delinquency and the disruption of the family

22 Feb 1996 : Column 1180

background. Therefore, if there is any context in which that formula is relevant and desirable, it is in the context of this Bill.

My noble and learned friend referred to an amendment which he has tabled to Clause 9 picking up on an amendment that was proposed by the noble Baroness, Lady Elles. That is important and, in addition, there are a number of other amendments relating to children which fall to be discussed, including my Amendment No. 8 which would spare children altogether the trauma of divorce.

In those circumstances, it seems to me that it would be premature to press the amendment at this stage. It can be considered later when we know how the Bill is shaped in relation to all the other suggestions that have been made about the welfare of children. Therefore, I beg leave to withdraw the amendment.

Amendment No. 5 as an amendment to Amendment No. 1, by leave, withdrawn.

On Question, Amendment No. 1 agreed to.

Clause 2 [Circumstances in which orders are made]:

Next Section Back to Table of Contents Lords Hansard Home Page