Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Macaulay of Bragar: My Lords, it is nice to hear the Government talk about Clause 4 because we stopped doing that some time ago. I am advised that the cost of executing a notarial document is less than £40. The cost of getting married in civil ceremony is £66, and the registration of a marriage costs £27. I am not very good at arithmetic, but that amounts to about £90. Therefore, I cannot see why providing that additional protection for those involved, and especially for the

5 Jul 1995 : Column 1124

child, is not acceptable to the Government. It is all very well for "alleged parents"—if I can put it that way—to do such things, but it is the child who is most centrally involved. I cannot see why building in another wall of defence for the child (who has no part in the proceedings) should be so firmly resisted by the Government. We shall, as usual, read with interest what the Minister has said; but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendments Nos. 6 and 7:


Page 4, line 7, at end insert ("while the mother still has the parental responsibilities and parental rights which she had when the agreement was made").
Page 4, line 7, at end insert:
("( ) The date on which such registration as is mentioned in subsection (2) (b) above takes place shall be the "appropriate date" for the purposes of subsection (1) above.").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 2. I beg to move.

On Question, amendments agreed to.

[Amendment No. 8 not moved.]

Clause 6 [Views of children]:

[Amendment No. 9 not moved.]

5.15 p.m.

Clause 11 [Court orders relating to parental responsibilities etc.]:

The Earl of Lindsay moved Amendment No. 10:


Page 9, line 27, leave out paragraph (b) and insert:
("(b) taking account of the child's age and maturity, shall so far as practicable—
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express.").

The noble Earl said: My Lords, in moving Amendment No. 10, I should like to speak also to Amendment No. 16.

I should like to thank the noble and learned Lord, Lord Hope of Craighead, for the suggestion that has led to these amendments. In his capacity as Lord President of the Court of Session, the noble and learned Lord, Lord Hope, thinks that the Bill should provide sufficient policy guidance for him to make appropriate rules of court concerning the taking of the views of the child. The noble and learned Lord drew attention to the text of Article 12(2) of the United Nations Convention on the Rights of the Child which says,


    "the child shall in particular be provided the opportunity to be heard".

We have also borne in mind that where a very young child is concerned, the court or the children's hearing must not be bound to go through the motions of trying to ascertain his or her views.

We have therefore produced what we think is an appropriate formula to provide that the court and children's hearing have a duty as far as practicable both to allow the child the opportunity to indicate a wish to

5 Jul 1995 : Column 1125

express a view, and if the child does so indicate, to obtain his or her views. Having done so, they must have regard to these views.

In relation to Amendment No. 16, I should add that if your Lordships accept the new clause after Clause 64, which deals with warrants for the further detention of a child, I would consider it appropriate at Third Reading to make proceedings under that clause subject to the same provisions relating to taking the child's views as other proceedings mentioned in Clause 16. I beg to move.

Lord Hope of Craighead: My Lords, I am very grateful to the Minister for accepting the advice, which I gave on behalf of the court, that the amendment should be brought forward. As far as we are concerned, it achieves something useful because it separates the giving of the opportunity on the one hand, for which we shall have to make careful rules, and the method by which the views may be expressed if the child wishes to express them. That too will have to be subject to careful rules. The way in which the provisions are now framed is in accordance with what we would wish to see and assists clarity in rule-making functions, which is my principal concern.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 11:


Page 9, line 29, at end insert:
("( ) shall consider if it is necessary to appoint a person to ascertain the views of the child in the proceedings.").

The noble Lord said: My Lords, this amendment stands in my name and that of the noble Earl, Lord Mar and Kellie. Amendment No. 11 is grouped with Amendments Nos. 12 and 170. Indeed, Amendment No. 170 is consequential upon Amendment Nos. 11 and 12. The amendments seek to build into the legislation a means of allowing a child's views to be heard and dealt with. As we all know from experience, various sheriffs—and perhaps judges in the High Court—take different approaches to talking to children and finding out their views. Most of the time that is done behind closed doors when a judge, particularly in civil cases, asks a child what he thinks about what is going to happen, and who he likes or does not like.

The amendment has been tabled to take the child out of the adversarial process and to provide another safeguard to ensure that the child's views are properly represented in the proceedings. If a suitable person is appointed to speak for and to represent the child outwith the court, that will make the proceedings much more satisfactory from everyone's point of view and the child will not need to be seen by the judge in chambers or whatever. The amendments have been tabled to benefit those children who are unfortunately involved in adversarial proceedings between their parents, whether married or otherwise. I beg to move.

Lord Rodger of Earlsferry: My Lords, those of your Lordships who were involved in the earlier stage of the Bill will be aware that the theme of the Bill is the importance of taking into account children's views. The procedures as to how the child's views are obtained are

5 Jul 1995 : Column 1126

just as much a matter of court procedure and practice as if the child were giving evidence in court. As my noble and learned friend said in Committee, the Sheriff Court Rules Council has been considering how best to achieve that end. Work on the preparation of one of the necessary rules of court has already begun.

As your Lordships will be aware, it is the normal practice to leave the detail of such issues to be carried into effect through rules of court. Considerable expertise is available in the Sheriff Court Rules Council. That council includes among its members practitioners experienced in family law and lay members as well as members of the judiciary. It is well-versed in the preparation of provisions which relate to procedure.

In preparing such rules of court, the views of interested parties and experts are sought through both formal and informal consultation. The Government amendment to Clause 11 is designed to facilitate just such preparation of rules of court which will allow for the kinds of situations set out and dealt with in the amendment. Given that it is normal to leave such matters to rules of court, I ask the noble Lord to withdraw the amendment.

Lord Macaulay of Bragar: My Lords, I am grateful to the Minister for that explanation which had an air of sympathy about it. We shall have to see in due course what the rules of court say. The amendments emphasise matters which persons who are preparing the rules of court should take into consideration, because the Bill is the last chance that the children of Scotland will have for a long time to have themselves put in a proper position and to be represented properly in all proceedings relating to their welfare and future.

As I say, I am grateful to the noble and learned Lord the Lord Advocate for giving that explanation. We look forward to seeing what the rules of court say. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

Lord Macaulay of Bragar moved Amendment No. 13:


Page 10, line 8, at end insert:
("( ) Any court which has made an order under subsections (1) or (2) above may issue with that order an explanatory statement detailing—
(a) the nature and effect of the order; and
(b) the manner in which the order relates to orders of custody or access which would have been granted by any court prior to the coming into force of this Act.").

The noble Lord said: My Lords, the amendment is self explanatory. When an order is made there may be some confusion about the question of custody, access, and residence in the international courts. The reasoning behind the amendment is that the court should give an explanation of the reasons lying behind any decision it makes within the terms of Clause 11 in relation to custody and access. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page