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The Earl of Mar and Kellie: I rise to support my noble kinsman's amendment. I believe that the delicate task set by the Bill (of ensuring that the child's view, where practical, is obtained and made available to the court) demands that an independent person be appointed. This person would need to have special ability in relating to children and would be skilled in enabling a child to develop and establish a view on his or her own future but without influencing the child's decision. This would be an advanced form of mediation, rather than counselling or advice, and would undoubtedly require more than one interview.

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I am particularly keen to go along with the noble and learned Lord, Lord Hope, the Lord President of the Court of Session, when he expressed the view at Second Reading that the procedure should be decided upon before enactment, as otherwise it would take some years of trial and error before the best practice evolved of rules of court.

Baroness Faithful: Perhaps I may ask two questions. Who is to be this person, the suitably qualified and trained experienced person? Is it to take the form of a guardian ad litem? Secondly, would not the requirements in paragraphs (a) to (d) be fulfilled by the social worker dealing with the case with the family?

Lord Fraser of Carmyllie: I am somewhat reluctant to essay an answer in circumstances where the amendment is not moved by the Government but is moved by my noble friend Lady Saltoun. But it does go to the centre of some of the difficulties in this area.

Taking the views of children is a very important theme which runs throughout the Bill. Indeed, there are some who might consider that this is the most important innovation that it introduces into the law. One has only to look, for example, to Clause 6 or to Clause 16, to appreciate how importantly that approach is developed.

The procedure as to how the child's views are obtained are just as much a matter of court procedure and practice as if the child was giving evidence in court. I understand that the Sheriff Court Rules Council has already been considering how best to achieve this. I understand that work on the preparation of one of the necessary rules of court has already begun. As noble Lords will be aware, it is the normal practice to leave the details of such issues to be carried through into practice via the rules of court. Expertise is available in the Sheriff Court Rules Council whose membership includes practitioners experienced in family law and lay members as well as the judiciary and which is well versed in the preparation of provisions which relate to procedure. In preparing such rules of court the views of independent parties and experts are sought through both formal and informal consultation.

I understand that, so far, the consultation that has been undertaken suggests that the existing flexibility of the rules is valuable and there appears to be no one method of taking a child's views that is appropriate in all situations, taking account of the age of the child and the circumstances of each case. It is not difficult to envisage that if a child was still in its carrycot, under the age of one, it really would not matter how suitably qualified or trained or experienced a person might be—the obtaining of the views of the child would be impossible. It may be in other circumstances—and, possibly inadvertently, the noble Lord, Lord Macaulay, did not move his Amendment No. 13—one way in which you might obtain the views of the child would not be by having a suitably trained person but by having a curator ad litem. What comes through to me is that there is such a wide variety of circumstances that it is difficult to see that there is any one answer.

If I move away from the carrycot to the boy who is 15 years and six months, I would guess that he is pretty capable of expressing his views without the intervention

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of a third party. In those particular circumstances, the best way to do it would be to have the young lad speak to the sheriff or the judge and express his own opinions.

In all the circumstances I take the view that we should leave these matters to the rules of court. I do not pretend that it will be a particularly easy task. Like the noble Earl, I noted what the Lord President of the Court of Session said in his maiden speech on Second Reading of the Bill. Given what I said about the importance of carrying this through into practice by the rules of court, I can give an absolute assurance that the Lord President will be intimately involved in any discussions about how the views of such children are best obtained in particular cases.

Lord Macaulay of Bragar: Before the Minister sits down, can I take complete responsibility for not moving Amendment No. 13. However, in view of what the Minister has said, I hope that the Government will take the content of the proposed amendment into account before the Report stage.

Lord Fraser of Carmyllie: I have already taken it into account. I would not like to see a curator ad litem appointed in each and every case; I think that that could be wholly inappropriate. The noble Lord will appreciate that such a power to appoint a curator ad litem is already vested in the court. I would suggest, consistent with what I have just said, that if there is a case where the court considers it appropriate to appoint a curator ad litem it can already do so.

Lady Saltoun of Abernethy: I am grateful to the noble and learned Lord for his reply, but I must here apologise for not being able to answer the two questions of the noble Baroness, Lady Faithfull. The fact is that the amendment is one which the noble Baroness, Lady Carnegy of Lour, had hoped to move. Unfortunately, she is not very well and is not able to attend. I said that I would move the amendment for her. That is why I do not have the answers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Restrictions on decrees for divorce, separation or annulment affecting children]:

The Earl of Mar and Kellie moved Amendment No. 15:


Page 10, line 15, after "whether") insert(":
(i) if this has not already been done, to refer the parties to the action to a specified family mediation service or parent education programme, or
(ii)").

The noble Earl said: The purpose of Amendment No. 15 is to put the use of family mediation services and parent education programmes on a stronger footing within the legislation. At Second Reading the noble Earl, Lord Lindsay, indicated that he would look sympathetically on suggestions to further the use of mediation, recognising that mutually acceptable decisions made by separating parents are more desirable than those imposed by a third party, which is usually a court.

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At present the rules of court allow referral to mediation but the emphasis is rather late in proceedings when attitudes may have hardened. As they are reacting to the rules of court, sheriffs have interpreted the use of this facility widely. In the sheriffdoms where referral to mediation is used widely, there has become a trend whereby solicitors arrange mediation sessions in anticipation of a formal referral. The benefits of early referral are two-fold. Parents are made aware of their continuing responsibilities to their children within the context of their own failed relationship, and, secondly, in the non-adversarial atmosphere of mediation sessions a mutually acceptable decision about the family's future is more likely to evolve.

The recent passage to the statute book of the Civil Evidence (Family Mediation) (Scotland) Act ensures that disclosures made in mediation sessions will not be admissible as evidence, which renders this opportunity to resolve the arrangements more likely. I hope that the Minister will see the merit of the inclusion of family mediation in the legislation, particularly at an earlier stage than currently mentioned in the rules of court. I beg to move.

Lord Fraser of Carmyllie: We have considered carefully whether some reference in the Bill to mediation is necessary because I understand and strongly support much of the mediation work already being undertaken in Scotland and consider that the present arrangement, whereby courts can refer cases involving children to mediation under the rules of court, to be working successfully.

If it is necessary to extend this provision, it can also be done through the rules of court. I think the noble Earl will appreciate that where new rules of court are formulated, that follows—as I have already indicated—upon extensive consultation with the relevant interests wherever possible.

Perhaps I may give this indication to the noble Lord that, as things stand at the moment, such changes can be achieved through the rules of court, but it is likely that the rules of court will make provision for referral to mediation at all stages of a family action, so that may indeed include making such reference at an earlier stage than is possible at the moment as well as a later one.

I do not think there is any significant disagreement between us over this matter and I hope the noble Earl will be reassured that what he effectively wishes to achieve can be done by the rules of court.

The Earl of Mar and Kellie: I am indeed heartened by what the noble and learned Lord has said. I am particularly grateful for his supporting words about mediation. I persist in the view, of course, that the earlier couples get to mediation then probably the better, but I also take the Minister's point that the rules of court probably allow that anyway.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

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5 p.m.

Clause 13 [Awards of damages to children]:


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