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Line 6, leave out ("may have broken down") and insert ("is in crisis").

The noble and learned Lord said: My Lords, there has been a general welcome for my noble and learned friend the Lord Chancellor having accepted the suggestion of the noble Lord, Lord Stallard, that there should at the outset be a statement of principles to cover the Bill. I deplored one substantial omission earlier and I have made suggestions of verbal improvements. However, there is still one striking lacuna in relation to children. The amendment seeks to add:


The Lord Chancellor: My Lords--

Lord Simon of Glaisdale: My Lords, I am so sorry, I think I am speaking to an amendment which has not been called. I do not move Amendment No. 3.

[Amendment No. 3, as an amendment to Amendment No. 1, not moved.]

[Amendment No. 4, as an amendment to Amendment No. 1, not moved.]

Lord Simon of Glaisdale moved, as an amendment to Amendment No. 1, Amendment No. 5:


Line 14, at end insert--
("(d) that the interest of any child affected is paramount.").

The noble and learned Lord said: My Lords, what I said prematurely on Amendment No. 3 is sufficiently in your Lordships' minds, so I do not propose to repeat it. It has been a notable feature of permissive divorce reform, of which this is the latest instalment, to concentrate attention on the spouses without regard to the fact that a family extends to the children. The Bill, as presented, was thin on references to children. On an earlier amendment,

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I quoted the phrase that was used of the parties being locked in a loveless marriage and indicated that that is impossible to enunciate when there is a child.

Practically every speech made by proponents of the measure has used the phrase "a dead marriage" as if a marriage could properly be described as dead when there is living proof on the vine. Those phrases, the Bill, and all the terminology to which I have referred, have been used in the light of the Children Act, to which my noble and learned friend referred on an earlier amendment, with welcome prematurity. That suggests that the reference in the Children Act is not sufficient when one comes to understanding and construing--and, most of all, the public understanding of this measure.

Even if the Children Act does impinge on this measure, there can be no possible harm in adding the provision which I am now submitting to your Lordships. If it does not--I confess that I am by no means certain that it does; in other words, that the Children Act would be considered as governing every transaction under this measure--we need the amendment. As I say, if it does, it can do no harm. I beg to move.

Baroness Elles: My Lords, I support the noble and learned Lord, Lord Simon of Glaisdale. So much do I respect him that I have proposed almost identical wording in an amendment to Clause 2. It raises the same point about introducing the principle expressed in the Children Act.

As I understand it the Children Act deals primarily with disputes between parents. The Family Law Bill does not deal primarily with disputes between parents but with the divorce of parents. It is possible to have a divorce where the parents are not in dispute. I suggest that care should be used in analysing the problem which the noble and learned Lord, Lord Simon, brings before the House to show that the paramountcy of the welfare of the children should be in both--the Family Law Bill and the Children Act. The Children Act deals with court orders, custody, wardship, and so on. The same principle is expressed in the Family Law Bill.

The noble and learned Lord, Lord Simon, and many other noble Lords have pointed out the importance of children in relation to divorce. I am sure that it is my noble and learned friend's view and philosophy that the importance of children is central to the Bill. I should be grateful if the amendment could be considered in that light.

Lord Renton: My Lords, I well remember my noble and learned friend the Lord Chancellor improving the Children Act 1989 by putting into Section 1 words which are almost identical to those in Amendment No. 5. It was a statement of principle which was to guide all concerned in exercising their functions under the Act. The question is whether it would help to have it as an addition to the amendment moved by my noble and learned friend. In my opinion, it strengthens my noble and learned friend's new clause.

It must be confessed that Amendment No. 5 overlaps, to a minor extent, the words in paragraph (c)(i) of the

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amendment moved by my noble and learned friend the Lord Chancellor where reference is made to,


    "with minimum distress to the parties and to the children affected".
That does not go as far as Amendment No. 5. The two are not incompatible. If Amendment No. 5 were added, the earlier words could quite well stand. I hope that my noble and learned friend the Lord Chancellor will accept Amendment No. 5. It contains an important statement of principle which should be borne in mind by all concerned in exercising their functions under the Bill.

Lord Elton: My Lords, were it not for my concern for children I would not be taking part in discussions on the Bill. I believe that we are all at one with the noble and learned Lord, Lord Simon of Glaisdale, in wishing to protect their position so far as is consistent with practicality and justice.

My noble friend Lord Renton said that the Children Act has as its preliminary section, as indeed it does, that the child's welfare shall be paramount in the court's consideration whenever the court is exercising its powers under the Children Act. The question I wish to ask my noble and learned friend is: am I right in thinking that in exercising their powers under any subsequent Act the courts are still acting under the Children Act 1989, which means that the paramountcy of the child is already preserved?

5.30 p.m.

Lord Northbourne: My Lords, unfortunately, I was unable to be in my place in Committee and I wish to take this opportunity to thank the noble and learned Lord for accepting a slightly different form of the amendment tabled by the noble Lord, Lord Stallard. Had I been present I should have spoken strongly in favour of it.

I am not qualified to enter into the discussion about whether it is necessary to repeat the word "paramount" in this Bill if it is already in the Children Act. No doubt the noble and learned Lord will tell us that. However, I wish to speak about the word "paramount" itself because it is a difficult and strong word. I ask myself whether in a divorce situation it is fair to the parents to say that the child's interest is paramount. After considerable thought, I believe that it is and that it is necessary to have it in the Bill.

First, the interests of the parent will only rarely be in conflict with the interests of the child. If they are in conflict surely the parents should take on their shoulders the burden of the disadvantage. That principle is fundamental to our society because if children are to grow up happy and useful and as acceptable citizens they need love, security, support and guidance.

I confess that there are different ways in which that can be given. In The Republic of Plato, or indeed in the Spartan community, children were brought up by the state. It is rather different in a democracy. The cost of care by the state is astronomical, whether it is given directly, through children's homes, through foster parents or through support for dysfunctional families and single parents. In a democracy there is a limit to the

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burden of cost that the taxpayers are prepared to accept. Already in this country the cost of supporting dysfunctional families is reaching a level at which people are beginning to feel tetchy about it. If the situation gets out of hand taxpayers will say, "No more". If that happens children will really suffer.

We cannot afford to go down that route. That is why I believe that Parliament must say to parents, through this Bill, "If you decide to have a child, or if you have a child by mistake, you are responsible for that child. If you subsequently fail to get on together and decide to divorce you have a duty to protect the child as far as humanly possible from the results of your failure".

I believe that parents must recognise that the child's interest is paramount. If parents fail to recognise it society must, through the law, step in and say, "The interest of the child is paramount". I therefore support the amendment.

Earl Russell: My Lords, the noble and learned Lord may remember speaking to a similar amendment during our discussions on the Child Support Act. In the Children Act the interest of the child is paramount because it is an Act about children. It does not necessarily follow that the interest of the child should be paramount in every context. Were that to be so I am sure a large number of roads around the country would be closed instantly. I do not believe that to be in prospect. This Bill is concerned with balancing a large number of competing interests. That is necessarily so and we cannot avoid it.

When we consider the interest of the child in a situation involving divorce we must decide whether we are considering the interest of the child in conjunction with those of his parents or in opposition to them. If we consider the interest of the child in opposition to that of his parents almost every child would prefer to have two loving parents living together. But politics is the art of the possible. Because we would like that to happen it does not follow that it will happen. It is a bit like passing an Act to say that we shall always have a wise and benevolent government. I do not believe that it would prove effective.

If we consider the child's interest in opposition to that of his parents we cannot achieve what we want. We are doing more than is humanly possible. If we consider the child's interest in conjunction with that of his parents we will be doing only what the Bill is attempting to do in any event. Either the words are otiose or they are redundant and I prefer to see the Bill remain as it is.


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