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Baroness Elles: My Lords, if I may continue for a moment with what I was going to say earlier, I understand what my noble and learned friend has said about the interests of the children, but I would like to ask him a couple of questions.

When we were discussing Amendment No. 9 which brought in criteria from the Children Act, it was mentioned that this might have been considered within the terms of Clause 9. Whether that aspect is covered by the interests of the children I am not sure. What criteria are the court to use when assessing the interests of the child? Will Section 1 of the Children Act automatically apply? As I understand it, the Children Act works only where there are disputes between the parents or where, as set out in Section 1:

Would the interests of the child, therefore, under Clause 9 be confined to those aspects or would there be a general view taken of the interests of the child? If so, what criteria would be used? Could my Amendment No. 9, discussed in Committee, be taken into consideration?

Obviously my noble and learned friend cannot give me an answer straightaway but I would be grateful if he would consider this. At the moment there is no definition of what the interests of the child are.

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Secondly, could we have some slight explanation of what my noble and learned friend considers would cover hardship? There will probably be quite a lot of variation in what a court or a judge might decide would include hardship. Would it include where a child had to be removed from the home in which he or she was living and the mother and the child had to apply for a council flat after having lived in a rather luxurious house? Would that change of style and general quality of life be considered as hardship? Would that be a ground for preventing a divorce being granted; or does my noble and learned friend intend to leave a great deal of latitude to the court in defining both the interests of the child and the hardship? At the moment, although there are very good intentions, I wonder how in fact it will work out.

Lord Phillimore: My Lords, would the noble and learned Lord indicate how he proposes that hardship to a child of a family be established to the satisfaction of any court? The noble Baroness, Lady Young, referred to the fact that it is undesirable--and I am sure we all agree--that a child should attend court and give evidence. But even the intervention of a third party such as a welfare officer could cause considerable distress to a child. Children are quick to perceive that they may be being asked to decide matters. That occurs, of course, in residence and contact matters where a welfare officer intervenes. I suggest that that is to be avoided, and I would welcome some indication as to how this will be avoided.

Lord Habgood: My Lords, I would welcome a little clarification from the noble and learned Lord about Clause 9(2)(b):

    ""that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved".
In our earlier discussions we said that this was the area of the Bill in which the concept of fault might come back into the arrangements for divorce. It is a little curious to discuss this entirely under the heading of hardship. There are two issues here--hardship and justice--and Subsection (2)(b) is basically about justice. Is it envisaged that a court might decide that arrangements made under Clause 8 of the Bill, although agreed by the parties, seem manifestly unfair in the light of the conduct of the parties, and that one could build into the Bill at this point some safeguard against the manipulation of one of the parties by the other?

4.15 p.m.

The Lord Chancellor: My Lords, let me take these matters in order. My noble friend Lady Young asked about the reason for the previous bar not working. Of course, it did work to some extent and it was used in a few cases--for example, when there was a loss of a pension which was considered a grave financial hardship. It was also used in practice as affecting the course of negotiations. Some would call it a bargaining factor. Your Lordships will remember that the noble Lord, Lord Mishcon, in Committee spoke of the existence of a bar as something that could influence

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parties even though they had not got to the stage of invoking the bar in connection with the settlement arrangements between the parties.

This is a convenient point to answer the question raised by the noble Lord, Lord Habgood. The question of conduct is relevant to the settlement of financial matters between the parties under the rules which presently exist and which, so far as this is concerned, I am not proposing to change; namely, that where there is conduct which it would be inequitable to leave out of account, that should be taken into account in considering the nature of the financial arrangements between the parties following a divorce. So that is fully taken account of in the present arrangements, in my submission.

My next point, in amplification and answer to my noble friend Lady Young, is this: the court has no power to prevent parties separating. If people decide to live apart there is nothing the court can do about it, and therefore hardship arising from that is not something that the court can be expected to control. The hardship that the court can deal with is hardship resulting from something that is within the court's power; namely, the power to make an order dissolving the marriage. I have sought to make that as ample as it can be. The word "hardship" is a very general word which would cover a variety of circumstances; and I have put in the word "substantial" for the reason that my noble and learned friend Lord Simon of Glaisdale gave--that this is a Bill which I expect, when it becomes an Act, to be read by ordinary people, and we have tried to couch it in ordinary language.

My noble and learned friend was kind enough to say at an earlier stage that the Bill was well drafted. This is one of the objectives--that it should be capable of being read and easily understood by those who are not familiar with the law. It may well be that an intelligent lay person may not be aware of the rule to which my noble and learned friend referred, and therefore I felt it right to put in the word "substantial" to indicate to a lay person that he or she would have to be able to identify something on which the court could find as occasioning hardship.

The reason that this is a more ample provision than the previous one is that the word "grave" indicates a higher standard of hardship. I propose to reduce it to as low a standard as it can go to consistent with the point of principle that my noble and learned friend Lord Simon of Glaisdale has mentioned.

My noble friend Lord Phillimore asked about the involvement of children. The hardship that this provision refers to is objective hardship of some kind. It is not just what the children feel about it but is something in the nature of objective hardship. There is a case in the books which illustrates in one particular example how this might arise. There was a case of a child in the books, but that child was older than would be classified as a child under this Bill. However, I take the example of a child who had a particular disability. The family home in which he lived was adapted in order that that disability could be catered for. When the husband and wife split up, they could not afford to keep

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that home. As very often happens, the total available to the family was less than was available for the house. Therefore, they had to sell the house as a consequence of the break-up of the marriage. It would take some time to adapt another house for the purposes of the child's disability.

That is an example of an objective type of hardship to a child of the marriage occasioned by the granting of a divorce at a particular time. Therefore, under this amendment, the divorce may well be postponed until new arrangements have been made, if it is possible at all to make them.

Of course, it is important that all the hardship which that provision deals with must be hardship occasioned by the order which the court may or may not make. Sadly, no one--courts nor anyone else--can remove the hardship which is caused by the breakdown of a marriage.

Those are the main matters which were raised. I believe strongly that the proper approach to this matter is the objective approach in relation to the hardship criterion. The hardship criterion is a necessary condition for this clause to be involved. Once that criterion is satisfied, the court takes account of all the factors mentioned in the later subsection.

I take account of what my noble friend Lady Elles says and I think that it would be advisable to leave this matter very much in the hands of the courts--and it is very difficult for us to envisage all circumstances--as to what they consider to be the interests of the child affected. As my noble friend said, the Children Act is designed specifically to deal with matters affecting children; for example, where they should stay, with whom they should have contact, to which schools they should go, and so on. The Children Act is an elaborate and satisfactory framework for dealing with that.

In this regard, I believe that the word "interests" is a good word to describe that to which the court should have regard in relation to children. I feel fairly strongly that it would be inadvisable for us to try to define it further. It leaves the matter open to the courts to do justice in the particular circumstances which may come before them. Therefore, I hope that your Lordships will feel that this is a good step forward and that it would be wise to leave the matter as open as possible.

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