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Lord Robertson of Oakridge: My Lords, I welcome the amendment in general but I have one reservation: it concerns the reference to children in paragraph (c). As drafted it could be taken to imply that the children's needs and problems can be disposed of at the time when the marriage is brought to an end. Unfortunately, that will seldom be possible as the effects of divorce on a child often continue well into the future.
I mention four areas where problems may affect children after divorce. First, there may be arguments about access. Secondly, there are situations in which parents compete for children's good will by offering expensive presents and treats. Thirdly, there are instances where parents' main priorities are to rebuild their social life and find another partner. The children come off second best and may experience a sense of rejection which has lasting effects upon them. Lastly, when mother's new partner moves into the house in place of father, children are at a higher risk of abuse. In his book Homes and Battered Children, published in 1994 by the Family Education Trust, Mr. R. Whelan calculated that the risk of abuse was 33 times higher than if children had remained with their own married parents.
Those problems cannot be solved readily by legislation but we cannot afford to ignore them. However, if the reference to children in the amendment were to include such a phrase as, "with regard to the present and future needs of the children", all those concerned would be encouraged to look ahead beyond the actual divorce settlement. I believe that that would be helpful. Perhaps I may suggest to your Lordships that, between now and Third Reading, consideration might be given to amending this section of the Bill on the lines that I have proposed.
As to the amendments tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale, I must say that Amendment No. 5 is one that I believe my noble and learned friend the Lord Chancellor should welcome. He himself set the precedent for that in the Children Act. At the beginning of that Act--
Lord Elton: My Lords, I hope that my noble friend will forgive me for interrupting him, but my noble and learned friend the Lord Chancellor specifically excluded Amendment No. 5 from this group so that we may discuss it later.
I am very doubtful about the other amendments tabled in the name of the noble and learned Lord, the most important of which is Amendment No. 2. That would make the new clause moved by my noble and learned friend apply to the whole of the Bill. The proposed new clause applies to Part I and II only and I am sure that that is correct. Speaking broadly, those parts deal with divorce whereas Part III of the Bill deals with quite separate matters; namely, "Family Homes and Domestic Violence". Of course, not all of the provisions in Part III relate to divorce, although, as regards domestic violence, they overlap a little.
I should like briefly to refer to Amendment No. 3, which seems to me to be just a drafting amendment and not one which I feel my noble and learned friend the Lord Chancellor should accept. Amendment No. 4 goes a little beyond drafting, but I prefer the wording chosen by my noble and learned friend the Lord Chancellor rather than the alternative proposed by the noble and learned Lord, Lord Simon of Glaisdale.
Earl Russell: My Lords, I, too, welcome Amendment No. 1 for reasons very similar to those just given by the noble Lord, Lord Renton, who is too modest to say that the amendment accepts some of the principles of drafting for which he argued in the Renton Report.
However, I am not so happy with the amendments tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale. In particular, I am not happy with Amendment No. 2. I believe that the institution of marriage is to be supported. I also believe that human life is to be preserved. I do not believe that it in any way qualifies my support for marriage if I put my support for the preservation of human life first. I also believe that the Queen's peace is to be kept. I do not believe that it in any way qualifies my support for the institution of marriage if I put the preservation of the Queen's peace first. Therefore, in cases where the preservation of marriage might lead to threat to the life or to severe physical injury of one of the parties, I think that it would be unduly doctrinaire to say that the preservation of the institution of marriage should come first in such circumstances. That is why I believe that the principle--as, I think, the noble and learned Lord has realised in the drafting of the amendment--is not germane to Part III of the Bill. The noble and learned Lord is entirely right to apply it to Parts I and II, but not to Part III.
I am not entirely certain of the effect of Amendment No. 3 which refers to the marriage being "in crisis". I once, rather rashly, used the word "crisis" in the title of an academic work. Shortly afterwards, one of my senior colleagues at a conference fixed me with a beady eye and told me that it was an overworked word. I concluded on reflection that my colleague was correct: either it means nothing or it is, I believe, a good deal more restrictive than many of us would like it to be.
Amendment No. 4 would remove the notion of irretrievable breakdown, which is somewhere near the very heart of the Bill. I would not go all the way with the Denham doctrine as recently re-enunciated in The Times about wrecking amendments, but I will say that, if the amendment were to be carried, it would remove something which, as I said, is very close to the heart of the Bill and of which I believe a clear majority of the House approves. Therefore, if it were carried, I, for one, would regret it.
Baroness Young: My Lords, as someone whom my noble and learned friend will recognise as being not entirely happy about the legislation now before us, I should like to thank him for bringing forward the amendment, which is based on an original amendment moved by the noble Lord, Lord Stallard. The fact that my noble and learned friend has re-drafted the amendment and brought it back in this form is most helpful. It is valuable to have the statement of principles at the beginning which, as I said when we discussed the matter in Committee, gives us a reference point for the other aspects of the Bill as they come before us.
Moreover, I believe it is important that both the debate that we had in Committee and today's subsequent debate will be on the record. I now understand that that will be taken into account when lawyers are considering legislation because it sets out the intention of Parliament. I believe that our discussions are both important and helpful.
I greatly appreciate the points made by the noble and learned Lord, Lord Simon of Glaisdale. I stand as second to none in my great respect for his views on such matters. However, in life when one actually gets something which is of value I suppose that one should be generous enough to say "Thank you" for it; and, indeed, I do so today. I accept what my noble and learned friend has done.
Lord Coleraine: My Lords, I join with other noble Lords in thanking my noble and learned friend for bringing forward his amendment today. However, like the noble and learned Lord, Lord Simon of Glaisdale, I have a certain number of reservations about it. It will come as no surprise that my noble and learned friend sees as a primary object of the Bill the minimising of costs to parties and to taxpayers. He said as much in Committee, reminding us of what was in the White Paper.
Keeping costs down is a worthy and desirable aim in all litigation, and nowhere more desirable--it may be thought--than in family matters where children are involved. However, in my view it would be wrong in principle to single out this Bill for special direction about costs, not least because it was substantially as a result of penny-pinching and the introduction 20 years ago of cheap and cheerless postal divorces under the special procedures that we are now where we are, with a divorce system which is in disrepute.
I wonder whether the word "costs" in my noble and learned friend's amendment includes the fees paid to mediators. The point may or may not be clear, but it is easy to envisage the Legal Aid Board feeling obliged, under the penny-pinching principle, to refuse legal aid for ancillary proceedings because of the availability of mediation. What seems to me so curious is that the costs principle is included in this amendment, but the principle that divorcing couples should be made aware of the consequences of their divorce, which was mentioned in the amendment of the noble Lord, Lord Stallard, has been left out. It seems to me that that principle in the amendment of the noble Lord, Lord Stallard, which referred to couples being made aware of the consequences of their divorce is a principle of the first importance.
As to supporting the institution of marriage, the expression is ambiguous. Are we to understand the reference to support of marriage as the option to be preferred over cohabitation? Or, are we to understand the phrase to embrace the concept that marriage can be best supported by non-acrimonious divorces which enable the parties to enter into better marriages later on? I suggest that the principle would be better expressed more openly as "support for marriage as the lifelong voluntary union of man and woman as husband and wife". That would inevitably and unambiguously give
To move on from the institution of marriage to the question of irretrievable breakdown raised by the noble and learned Lord, Lord Simon of Glaisdale, and mentioned by many other noble Lords, I would just say as a drafting point that the reference in paragraph (c) of the amendment to a marriage having irretrievably broken down overlooks the fact that irretrievable breakdown in the Bill is a figment of legislative imagination. Irretrievable breakdown takes place, according to the wording of Clause 4, not earlier than the end of the period for reflection and consideration, by which time it is clearly too late to do much about distressed parties and children.
I say "Amen" to the principle that distress should not be caused to children but I believe that there is a nettle here and I propose to grasp it. I believe that the way the principle is expressed here, taken in the context of the whole amendment, is conceptually flawed. We know that as a general rule the distress of children is less in intact families than in families destroyed by separation and divorce. We know that the distress of children after divorce may increase over the years as contact with the non-resident parent is weakened, if not lost, and the resident parent enters into a new relationship or marriage. If one thing was made abundantly clear during the Committee stage of this Bill, it was that the White Paper was misleading in dwelling on the idea that generally children in conflict-ridden, intact families would be better off in divorced families. That is an unfounded hypothesis, but much of the thinking behind the Bill relies on it as received wisdom.
It is often the case that from and after the divorce decree there will be a temporary reduction in stress and friction. I can envisage a situation where a district judge, obeying my noble and learned friend's direction, would take steps or give advice deliberately to bring a marriage to an end in order to relieve short-term distress. He would, of course, say that he was in no position to accept the argument or evidence that the long-term distress of the child would be the greater if the marriage were dissolved prematurely. Or, a mediator may feel compelled to make the same sort of decision.
It is unfortunate that my noble and learned friend's amendment is in a form which too strongly influences the discretion of all those involved in the dissolution process. The amendment of the noble Lord, Lord Stallard, at Committee stage seems to me to have been better judged in that respect. My noble and learned friend's amendment follows the form used in the Children Act. I do not consider the Children Act formula suitable for this amendment. Section 1 of that Act placed the single issue of the welfare of a child in a unique paramount position in unspecific terms. The principles in Amendment No. 1 today are much more specific. They are not even sui generis each other; one may conflict with another; and other principles with equal if not greater claim to inclusion are not recognised. It seems to me that my noble and learned friend's
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