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Lord Moran: My Lords, like the noble Baroness, Lady Elles, I am very glad that the first amendment of the noble and learned Lord the Lord Chancellor includes children. I have been concerned until now that there has been hardly any reference to children in the Bill. I am very glad that they now feature in the first amendment.

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I put my name to the two amendments so capably moved and spoken to by the noble Baroness because it is right that the interests of the children should come in the part of the Bill which deals with court orders. A court should have direction from Parliament in this part of the Bill to give particular attention to the interests of children.

I recently received the report from the Joseph Rowntree Foundation in York, published a year ago, called Family and Parenthood. Like all the reports of that foundation, it is very thorough and interesting. It states that,

    "the 168,248 English and Welsh children under 16 who experienced their parents' divorce during 1992 was double the 1971 figure and exceeded the previous peak reached in 1980".
We are concerned with a large number of children. I draw attention in particular to subsection (5)(c) which provides that the court shall have regard to,

    "the likely effect on [the child] of any change in his circumstances".
The same report states--it is a point raised previously in our debates--that,

    "there is accumulated evidence that children whose birth parents separate run increased risks of adverse educational, health and behavioural outcomes when compared with those of similar social backgrounds whose parents stay together".
It continues:

    "It is now apparent that some consequences for some children continue into adult life".
It is extremely important that when a case comes before the court it should take account of that. I have been worried during debates that not enough attention is being paid to the interests of children. That is what worries me most about the whole process of divorce. I support the amendments.

The Duke of Norfolk: My Lords, I, too, support the two amendments. Apparently 90 per cent. of children of divorcing parents wish their parents would stay together. Divorce causes loss of their status, identity and self-esteem, and in over 50 per cent. of cases loss of one parent. I strongly support the amendments which I hope will help to make divorce less likely and will help the children to stop their parents' divorcing.

Lord Habgood: My Lords, I strongly support the general aim of the amendments. However, there is a practical difficulty. Subsection (5)(a) of Amendment No. 9 refers to,

    "the ascertainable wishes and feelings of the child concerned".
How do the proposers of the amendment imagine that the court will ascertain those wishes and feelings without the risk of setting the child against the parent?

It seems to me that there is a place for trying to get into the mind of the child, as it were. National Family Mediation has a code of practice on this. I thought that it might be useful to your Lordships if I were to read a few paragraphs. The code states:

    "Mediators must encourage the participants to consider their children's wishes and feelings. Where appropriate, they may discuss with the participants whether and to what extent it is proper to involve the children themselves in the mediation process in order to consult them about their wishes and feelings".

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That keeps the ball firmly in the court of the parents. It continues:

    "Where it appears to any mediator that a child is suffering or likely to suffer significant harm, the mediators must advise the participants to seek help from the appropriate agency.

    "Where it appears necessary or desirable in order to protect the child from significant harm, the mediator must in any event contact the appropriate agency".
The code continues:

    "When parents cannot agree or the situation is such that they cannot communicate with their children without the children feeling they are caught between them, or might be disloyal or are unduly influenced by one parent, then the mediator will seek to consult the children's views directly and bring their wishes and feelings back to the parents' session. Direct consultation by a skilled mediator gives children respect as 'persons to whom duties are owed not objects of welfare'... and ensures that their views are fully considered and become an important influence on parents' final decisions".
It seems to me that to incorporate that part of the code of practice into mediation services is probably the right way for the points made in the amendments to be met. I should be fearful of anything that allowed the court direct access to the children.

6.30 p.m.

Lord Coleraine: My Lords, the point made by the noble Lord, Lord Habgood, was the subject of an amendment at an earlier stage. Might it be possible for the court welfare officer to collect the information from the children? I think that could be done without unduly bringing the children into the divorce.

Lord Elton: My Lords, I presume that the suggestion made by the noble Lord, Lord Habgood, would fall to the Government, under the scheme described by my noble and learned friend, by the terms in which a grant was given to the organisation providing the counselling. It is a matter for reflection.

Perhaps my noble and learned friend can answer a question which I did not hear answered in a previous exchange. Am I right in thinking that the whole operation of the Bill is subject to the provisions of the Children Act which he has frequently described in the House as biting in a particular case? If so, are not many of the gnats which we are straining at gnats and not camels?

Lord Monson: My Lords, I am afraid that I could not support Amendment No. 7 as it stands. It goes too far in two respects. First, it appears to cover children of any age. Presumably, 18 or 19 year-olds--perhaps those who are even older--could be included. Secondly, it comes into operation if there is any disadvantage whatever to a child, however small, arising from a divorce. If the amendment were reworded to read that it was "wholly contrary" or "markedly contrary" to the vital interests of any child of the marriage under the age of 16 to dissolve the marriage, I could support it, but not otherwise. Amendment No. 9 is less draconian but I am still uneasy, given how difficult it will be to predict with accuracy the consequences of the divorce on any given child.

Baroness Faithfull: My Lords, I too am worried about Amendment No. 7 and the words,

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    "it is not contrary to the interests of any child".
I prefer the words, "have regard to the interests of any child". I do not see how the wording could be implemented. Any divorce is not in the interests of a child; therefore there could be no divorce at all if that wording were included. I agree with my noble friend Lady Elles. I understand the proposal but the wording might lead to misinterpretation.

I support the comments of the noble Lord, Lord Habgood, on Amendment No. 9 and the words,

    "the ascertainable wishes and feelings of the child concerned".
If we were to follow the wishes of the child those wishes might be wrong. Therefore it ought to be the child's concerns and feelings.

Some of the press got hold of completely the wrong end of the stick when they suggested that the noble and learned Lord wanted children to be involved in the process of divorce. He did not say that, but the press insinuated it. I wish to say how wrong that was. I would like the wording of Amendment No. 9 to be altered. As regards the children, it would not be fair for them to feel that their wishes would be listened to because quite often that is not possible. The children's concerns and worries might be listened to but not their wishes because they might not be fulfilled.

Lord Stoddart of Swindon: My Lords, I support the general thrust of the amendments, although some of the points that have been made ought to be taken into account before the House decides. It is true that the press have got hold of the wrong end of the stick with some of them believing that under the amendments children would have a veto on divorce. That would not be acceptable to the House, nor to me.

I repeat what I said in Committee. Children are a vital part of a marriage where children exist in it. We must bear in mind that once a child has arrived it is part of the marriage. It no longer belongs to the husband and the wife; it belongs to the husband, the wife and the children of the marriage. Therefore, it is necessary to address the concerns and welfare of the children as well as their feelings where they can be ascertained. However, the children's feelings must not constitute a veto on divorce.

It has been argued that we should not involve children in the process because they will be involved in the acrimony which so often goes with divorce. But they are already involved in acrimony. If there were no acrimony within the family, there would be no thought of divorce. One cannot use that argument against taking into account, where possible, the views and interests of children. Whether we like it or not, if we want this to be a family law Bill, as against a divorce Bill, we must address the interests of children and ensure that they are addressed properly. We must ensure that as a House and as part of Parliament we get it right. That is why the debate is so important and why the views which have been expressed have been so interesting.

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