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Lord Irvine of Lairg: My Lords, it is right to join the noble and learned Lord in acknowledging the credit that should be given to the noble Baroness, Lady Elles, for the incorporation of a list of factors which the court must take into account when deciding whether it should exercise its powers under the Children Act 1989. Commons Amendment No. 34 significantly extends that list.
The court must regard the welfare of any children of the family as paramount when considering whether it should exercise its powers under the Children Act. Also it must have regard to the wishes and the feelings of the child concerned. Usefully it extends the general principle that the welfare of the child is best served by regular contact not only with those who have parental responsibility directly for the child, but also with other members of the family.
I offer a general welcome to this group of amendments. The clauses are an important contribution to the welfare of children. They are fully in tune with the new and increasing contemporary awareness that a child is a person in his or her own right and not merely an object for concern. So the divorce court must now have regard to the interests and views of the children.
There is too often a temptation for divorcing couples to believe that because they have come to an amicable settlement and have made themselves happy, the children must also be happy. Sadly, frequently that is not the case and to the high cost of a failed marriage there must be often added a child who has gone off the rails or a daughter or son who ploughs his or her examinations. Of course, the courts can only do so much. They cannot heal the hurt to a child at losing one of its parents, if that is what happens; but at the very least it can focus on the needs of that child and ensure that, amid the clamour for dissolution and the squabbles over money and the house, the voice of the child is also heard.
In particular, we welcome Amendment No. 53 which empowers the Lord Chancellor to make regulations across a wide range of family matters including domestic violence cases. We agree with the noble and learned Lord that this is a sensitive and difficult task. In particular, we welcome his expressed desire to consult widely on these matters with the children's organisations and with those who derive their expertise from their experience gained from representing the interests of children in court proceedings. We welcome these amendments.
Lord Renton: My Lords, the noble Lord, Lord Irvine of Lairg, has done me the favour of making the speech that I was going to make, so I can be very brief. I simply add that to my mind these are the most important amendments that have come to us from the other place. I particularly welcome the fact that they will enable the provisions of the Children Act 1989 to be dovetailed with the provisions of this legislation. The only point I wish to add now--and I hope I am in order in doing so--is that these amendments, especially the new Amendment No. 34 which inserts the new clause, which is the operative clause in this group of amendments, make the proposed Amendments Nos. 7A and 15C unnecessary. I hope that I am not out of order in anticipating that.
Baroness Young: My Lords, I welcome this group of amendments. I particularly thank my noble and learned friend the Lord Chancellor and the noble Lord, Lord Irvine of Lairg, for their kind remarks about my noble friend Lady Elles. Unfortunately, she is unable to be in her place this evening. I know that she greatly welcomes these amendments and particularly Amendment No. 34, which incorporates many of the points which she raised.
Is Section 8 of the Children Act included, bearing in mind that Section 8 orders have been perceived by judges and by childcare law and social work practitioners as a pressing lacuna in the present law? We would like to receive confirmation--because we are concerned--that panel guardians ad litem will be involved in private law proceedings given that in future we cannot depend on Family Court welfare officers being qualified social workers following the recent withdrawal by the Home Office of probation officers from social work training.
Lord Simon of Glaisdale: My Lords, when this Bill first came before your Lordships it was very thin indeed in its consideration for the welfare of children of broken marriages. That was entirely consonant with the long tradition of divorce reform which looked almost exclusively to the welfare of the parents. There was constant talk of a "dead marriage" even though there might be living young children to whom the parents had a living responsibility. The noble Lord, Lord Irvine of Lairg, implied that point.
During the course of our deliberations a noble Lord whom we all hold in very high respect actually talked about the parties, "being locked in a loveless marriage" as though a marriage with young children is other than quite exceptionally loveless. Normally, parents love their children. Their passion or even affection for each other may have deteriorated, but they still have a responsibility and other than in exceptional cases they have love for their children. It cannot properly be spoken of as a dead marriage or being locked in a loveless marriage.
One of the features of the Bill in your Lordships' House was the significant strengthening of the provisions relating to children. I join in the tributes that have been paid to the noble Baroness, Lady Elles, in that regard. The amendments in the other place have continued that and strengthened the Bill so that now, as regards divorce reform, I trust that we shall never again talk of a dead or loveless marriage where there are children but that, on the contrary, in all consideration of marriage and divorce reform the centre of our consideration shall be the children of the marriage.
Lord Meston: My Lords, I welcome Amendment No. 34 in particular. It seems to be an improvement on the existing arrangements in undefended divorce cases. As the noble and learned Lord the Lord Chancellor said, the existing mechanism derives from Section 41 of the Matrimonial Causes Act 1973. In its original form, the court was required by that section to have a hearing to consider the arrangements the parties had made or proposed for the children of the family. That section was altered--most people would say that it was watered down--by the Children Act 1989 to such an extent that there is nowadays no actual hearing before a judge. A statement of arrangement for the children is still put before the court by the parties, but in the vast majority
The new clause, which stands as Amendment No. 34, amplifies the existing Section 41 procedure. I assume that the procedure under the new clause will also depend upon there being filed with the court a statement by the couple as to the arrangements proposed for the children. I ask the noble and learned Lord whether he has formulated procedures to deal with this: what concerns me is the reference in what will be new subsection (4) to the court having regard,
there then follows a list of matters. In my mind, that begs the question of how, in practice, the court will have evidence before it of the different matters set out in that subsection. Is there going to be in place a specific mechanism to enable the court to be informed properly in every case of the wishes and feelings of the children, and so on? If these provisions are to work, there must be a proper mechanism in place to ensure that the court has before it the best information available at the time.
Lord Mishcon: My Lords, perhaps I may say how very much I, too, welcome the new clause represented by Amendment No. 34. However, I have one question for the noble and learned Lord. It arises from the use of the word "exceptional" in subsection (2)(c), which reads:
Perhaps I may ask the noble and learned Lord what, to his mind, should be the court's mental direction in following the word "exceptional". Will we not have many cases in which in the circumstances it is desirable that the order should be made, but in one case a judge may well feel that he cannot regard the circumstances as "exceptional"--no guidance on that is given in the amendment--whereas another judge may think that he can regard that word loosely? Why is the word "exceptional" there?
The Lord Chancellor: My Lords, perhaps I may take that short question first. The ordinary rules with regard to the granting of a divorce are stipulated and, ordinarily, there will be an entitlement; but where something more is required, there may be a need for postponement of the divorce notwithstanding what otherwise would be an entitlement.
The phrase "exceptional circumstances" appears in the current law, as the noble Lord knows. I have sought advice from those who exercise this jurisdiction and I am advised that no difficulties have so far been experienced. Something must be very special in situations where it is right to postpone the divorce until these powers have been exercised in connection with the Children Act procedure, where otherwise there would be an entitlement. My main point, however, is that all that we have done is to adopt the current phrase. If one wants to minimise legal argument, one is wise to adopt the current phrase unless there are some difficulties with its operation.
Reverting to the questions asked by the noble Baroness, Lady David, Section 8 of the Children Act 1989 is not included in Amendment No. 53 because Children Act proceedings are outside the scope of this Bill, as we are advised. On the rule-making powers under the Children Act, I believe that I may deal with such matters under the rule-making powers available under the Children Act.
On the point about panel guardians, I have indicated that we shall consult widely not only about the types of proceedings, the categories of case and the particular circumstances in which separate representations should be available, but also on the type and nature of that representation. We shall want to consider all types of possible representation in order to decide what is appropriate in different situations.
I turn now to the question asked by the noble Lord, Lord Meston. When the Bill was before us previously, I mentioned--perhaps more than once--that I would expect to provide (under the powers that I have to require matters to go before the court in the form of the statements that are necessary) to consult widely, particularly with children's organisations, about the way in which important factors can be brought out so that the judge--a district judge, presumably, or a judge at whatever the level may be--will have before him or her in the statement the kind of information that would throw light on whether the powers under this section (and therefore under the Children Act) require to be exercised in the particular circumstances of the case. That is the nature of the evidence that I have in mind. As the noble Lord correctly said, the efficacy of the clause depends on having such a scheme in place. As I have said, that is my intention and, again, I shall wish to consult widely about it.
I am grateful for the support that these amendments have received and for the considerable agreement on this aspect of the matter. I welcome particularly what my noble and learned friend Lord Simon of Glaisdale said. I believe that divorce reform is best conducted in a government Bill where it is possible to deal with a much wider range of matters than is normally possible when trying to carry out divorce reform through a Private Member's Bill, as has often been the case in the past.
In view of the various well deserved compliments that have been paid to various Members of your Lordships' House, I feel that it is appropriate for me to mention that the very last piece of business which my late noble friend Lady Faithfull attended in your Lordships' House was the concluding stage of this Bill when it was before us previously. All of us who remember her knew of her concern for children. I am sure that she would have been delighted to know that at long last we have made some considerable improvements as a result of having her help and I am sure that she would have welcomed the sum total of these amendments. It gives me particular pleasure to honour her memory in this way at this stage.
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