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The Lord Chancellor: I do not accept the latter conclusion, but I accept that it may involve some investigation of conduct to decide whether the respondent has failed reasonably to provide for the applicant or a child of the family.

Clause 15 agreed to.

[Amendments Nos. 154 and 155 not moved.]

Clause 16 [Jurisdiction in relation to divorce and separation]:

[Amendment No. 156 not moved.]

5.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 157:


Page 9, leave out lines 1 and 2.

The noble and learned Lord said: Amendment No. 157 is a probing amendment. It is to leave out lines 1 and 2, which provide that a divorce order shall not be made while nullity proceedings are pending. That is entirely reasonable. One cannot dissolve a marriage--indeed, one cannot separate the parties--until one knows that they are validly married. That was the doctrine of the ecclesiastical court and has been acted on by the lay courts ever since.

My only doubt as to that was whether it goes far enough. The question of the validity of a marriage these days--or perhaps I should say in my time--is often investigated by a party seeking a declaratory judgment. I do not know whether that has been considered. If it has not, perhaps my noble and learned friend will give it such consideration as he thinks it merits. I beg to move.

Lord Meston: I join the noble and learned Lord in questioning how Clause 16(2)(c) is to work in practice. It suggests that the court's jurisdiction is exercisable only if one of three possible states of affairs obtains. Presumably it is not intended in any way to restrict the party who is on the receiving end of a nullity petition from lodging a statement of marital breakdown, because it would be wrong if that could happen.

I move briefly to Amendment No. 158, which stands in my name and appears in this group of amendments. Clause 16(7) purports to define nullity proceedings by reference to Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. That section deals with jurisdiction in nullity proceedings but does not actually define them. Either Clause 16(7) is intended to define nullity proceedings, in which case it should do so, or at the least the word "nullity" should be added before the word "proceedings", which is proposed in Amendment No. 158.

The Lord Chancellor: As regards Amendment No. 157, my noble and learned friend Lord Simon is

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asking not to delete paragraph (c) but rather to consider adding to it the matter of a declaratory action in respect of issues concerning the marriage. I shall be happy to consider that.

As to Amendment No. 158, I am advised that what we have is all right. Let me explain why. Nullity proceedings are defined as proceedings in respect of which the court has jurisdiction under Section 5(3) of the Domicile and Matrimonial Proceedings Act 1973. As Section 5(3) is concerned only with the court's jurisdiction to entertain proceedings for nullity, the reference to proceedings in Clause 16, as currently drafted, can only mean nullity proceedings. Not only is the addition of the word "nullity" superfluous; it could be misleading as it implies that Section 5(3) deals with other proceedings as well as those of nullity.

That is the explanation of why we think what we have is better. I hope that the noble Lord, Lord Meston, is properly impressed with the cogency of those observations.

Lord Simon of Glaisdale: I ask leave to withdraw the amendment in view of what has been said by my noble and learned friend, for which I express my thanks.

Amendment, by leave, withdrawn.

[Amendment No. 158 not moved.]

Clause 16 agreed to.

Baroness Elles moved Amendment No. 158A:


After Clause 16, insert the following new clause--

Children's wellbeing: considerations of the Court

(" . In deciding any question under this Part the court shall take account of the following--
(a) the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant;
(b) in the absence of clear evidence to the contrary, the principle that the child's welfare is best served by regular and reasonable contact with each party to the marriage who is the natural parent of any such child;
(c) the risk occasioned by the new living arrangements of the parent with whom the child will reside including any likelihood of risk arising out of cohabitation with any party who is not the natural parent of the child.").

The noble Baroness said: We have discussed the question of disputes between the parents. The two amendments that I have tabled are specifically concerned with the children of the marriage. As to the jurisdiction of the court, which is dealt with in Clause 16, it is appropriate to raise the issue. I hope that my noble and learned friend the Lord Chancellor--perhaps I am optimistic--will agree that the jurisdiction of the court should specifically include the duty to take account of the conduct of each of the parents, the regular contact of each party with the child and the risk occasioned by the new living arrangements of the parents. My noble and learned friend has already said that investigation into the conduct of a party may be necessary in certain cases.

The question of payment of maintenance for the children should be specifically mentioned here. The heading of my amendment deals particularly with the children's well-being and the considerations of the court. That would include, in Part I of the Bill, any

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financial arrangements being made for the children as well as the arrangements being made as between the parents.

This clause, I accept, is fairly widely drawn. It also includes any other person in relation to whom the court considers the question to be relevant. That may include guardians or grandparents who have a duty or obligation to maintain a child of divorced parents.

As to subsection (b) of my amendment, I am sure most noble Lords will agree that, whatever our views of this Bill, it is advisable--and we would wish it to happen--that a child should have regular and reasonable contact with each party to the divorce. Here again it is helpful for the court to have it explicitly set out on the face of the Bill. It is very often said that while the court is concerned, understandably, with the conduct of the parents in these cases, the children do not always get the priority that they deserve. I am trying to strengthen in this Bill the protection that should be accorded to the children, who, after all, will suffer most from the divorce.

The third point in relation to Amendment No. 158A is about the risk occasioned by the conduct of the parties or the way one of the parties is living, particularly in the case of the party with whom the child or children are resident. We all know the difficulties there can be where a cohabitee has come into the home, or where different matters arise out of the conduct of the party with whom the children are resident.

These are matters which I hope my noble and learned friend will consider including on the face of the Bill. He may rightly say that the court automatically takes these matters into account, but it would be helpful, in considering the provisions of the Bill, that they should be spelt out as being part of the duty of the court towards the children of the marriage.

The same thinking is contained in Amendment No. 158B. It should be an obligation on the court welfare officer who has to compile a report concerning the children of the marriage--this was a point raised by my noble friend Lady Faithfull--that he should interview the children in the presence of each of the parents separately so that the child can say what he or she thinks in relation to the situation. That would be much fairer on the children than any other way. Where it is not done, the court welfare officer should say that he or she has been able to get this evidence, and that should also be taken into account by the court when making its decision.

These amendments are fairly explicit in their content and I very much hope that my noble and learned friend will consider including them on the face of the Bill.

Baroness Faithfull: I support the noble Baroness, Lady Elles. As to subsection (a) of Amendment No. 158A, it says:


    "the conduct of each of the parents of the child and any other person in relation to whom the court considers the question to be relevant".

Throughout this Bill there is cross-representation, or cross-fertilisation, whatever it is called, with the Children Act 1989, and it would be very helpful, if possible, to refer to the Children Act 1989. There is a

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checklist in the Children Act to which, in addition to what the noble Baroness has recommended in Amendment No. 158A, I hope very much the court will refer.

As to subsection (b) of Amendment No. 158A, keeping regular contact with each party, there is very real trouble over the question of access. When I moved Amendment No. 155, I wished to know whether, if the court order was breached in regard to access, the party who was suffering by not seeing the child or having the child kept away from them would get legal aid. I think my noble and learned friend gave the answer yes.

One of the difficulties is that there are a number of cases where a man is not eligible for legal aid and yet he does not have enough money to go to court when access arrangements are not being fulfilled. It is a very great problem whether the father or the mother has the care of the child. Very often the access arrangements are not adhered to and the absent parent loses contact with the child over a number of years. I am not sure how this can be resolved, but there should be somebody safeguarding the interests of the child.

As to Amendment No. 158B, I am not quite sure. We debated this question on, I think, Tuesday. Although I recognise the recommendation of the noble Baroness that the child or children should be interviewed in the presence of both parents, we also discussed the proposal that the child or children should have someone to whom they could go either at the time of the divorce, or, afterwards, when access arrangements were being breached. We did not resolve the question, and I mention it only in relation to the noble Baroness's recommendation.

6 p.m.

Lord Simon of Glaisdale: With respect, I strongly counsel against the suggestion that any child should be interviewed in such circumstances in the presence of both parents. The more the child is kept out of the conflict the better. To have both parents present while questions are put to the child, whoever puts them, seems to me to be attendant with considerable danger. I respectfully agree that there should remain someone to whom the child can go, not only during the proceedings but also, as the noble Baroness postulated, after an access order has been made.

One of the functions that we envisaged as regards the Family Court was the fact that the welfare side should be available in such circumstances. However, failing the establishment of that Family Court as we urged it, I suggested that the best person to represent the interests of the child throughout was the Official Solicitor. I agreed with the suggestion made by the noble Earl, Lord Onslow; namely, that it is the interests of the child, much more than the views of the child, which need emphasis.

If the Official Solicitor is brought in at an early stage, I fail to see why he should not be available to the child subsequently. I understood that my noble and learned friend was prepared to brood over the suggestion that the Official Solicitor was the best person to represent the interests of the child. However, that does not mean

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that that should be the responsibility of the extremely eminent lawyer who is immediately responsible to my noble and learned friend; indeed, he has an official who is constantly and intimately concerned with such problems on a daily basis.


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