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Baroness David: My Lords, I expressed both at Second Reading and in Committee my wish to see children appear in the Bill. Although I greatly wish for that, I do not quite feel myself able to support the

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amendments of the noble Baroness, Lady Elles. I do not believe that the words "interests", "wishes" and "feelings" are quite what we should have. I support the reservations of the noble Lord, Lord Habgood, and the noble Baroness, Lady Faithfull. I prefer our own amendments which come later. Thus I shall reserve my right to speak on them at the right moment.

Lord Burnham: My Lords, in formulating Amendment No. 9 my noble friend Lady Elles pointed out that she had taken the wording from the Children Act. The noble Lord, Lord Moran, expressed his surprise that there is so little mention of children in the Bill. However, the excellent Children Act remains extant and its terms apply, whatever may appear in the Bill. Is it not therefore reasonable that the amendments suggested by my noble friend should not appear in the Bill because they are not necessary? The legislation is already there.

The Earl of Onslow: My Lords, it seems to me that Amendment No. 7 could almost be classed as the Librum veto in the old Polish Parliament. In other words, it appears that one child in a divorce can veto the prospect of divorce by his parents. It is within the bounds of imagination or possibility that there could be five children in a marriage. It could conceivably be in the interests of one of those children that the marriage continues, and in the interests of the other four that it is dissolved. Is that one child to be able to behave like a Polish count? It strikes me as not being a very sensible approach.

We all agree that the interests of children must be looked at very carefully, as the noble Lord, Lord Habgood, said. Perhaps this consideration should be more important in conciliation measures than in mediation measures. The Law Society produced a brief on exactly that point.

I believe the noble and learned Lord has it right. The,

    "ascertainable wishes and feelings of the child concerned"
is not something that we should allow to go into law.

My parents divorced, and I did not want them to. It was probably a silly thing that they were divorced, and in the end they did not like it very much. But it would have been totally wrong for me (admittedly by then I was 21 or 22) to be able to stop that divorce. It would have been even more wrong to be able to stop it had the divorce taken place when I was 12 or 14. These amendments are well-meaning, but ill-thought-out.

Baroness Young: My Lords, I support both these amendments, so well introduced by my noble friend Lady Elles. In offering my support, I am well aware of the subsequent amendments tabled by my noble and learned friend in connection with the hardship bar and his new amendment, I believe tabled today, Amendment No. 137. Obviously, we shall have an opportunity to debate those matters, but both these amendments are very welcome steps in the right direction in regard to the importance of children.

It may well be wondered, therefore, why we feel it necessary to add anything further to the proposal. There is a difference between the considerations that

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apply in Clause 9 on the hardship bar, which we shall discuss later, and those brought forward by my noble and learned friend in his Amendment No. 137--as I understand it, that amendment is very largely concerned with property, assets, and so on--and these amendments which fill a lacuna, as it were, in the provisions relating to children. They are based directly on the Children Act because we regard that Act as saying something of significance which ought to be central to this piece of legislation.

It does not need me to rehearse all the arguments as to the devastating effects of divorce on children. The noble Lord, Lord Stoddart, set them out, as did the noble Lord, Lord Moran. Although we pay lip-service to these matters all the time in this House, and did so in Committee, we now know that one in five children is from a broken home. One-third of the children in a class are from broken homes, as are one-third of the students in a university. I am told that, were we to look into the tragedy of people sleeping rough under the arches at Waterloo station, we should find that a lot are 16 year-olds, turned out of their home by dreadful step-parents of one sort or another, causing terrible social problems, all stemming from divorce. This is therefore an extremely important issue. We should not in any way gloss over it, but should see it as central to the Bill.

I understand the concerns about wording expressed by the noble Lord, Lord Habgood. It may well be that the wording is not quite right. However, I should be very loath to leave this matter to mediation. After all, nobody can be obliged to go to mediation, any more than they can be obliged to go to conciliation, desirable though it may be. Therefore, we need much firmer measures on the face of the Bill.

Another point was raised in relation to the definition of "a child" in Clause 7. That is defined in law, and covers the age of a child. We are not talking about someone who is 19 or 20.

These amendments need very careful consideration. I very much hope that if my noble and learned friend feels he cannot accept them today he will take them away and perhaps redraft them where necessary. It seems totally inconsistent to have a Children Act that sets out what we believe is best for children, and which we all supported, and then, five minutes later, have another piece of legislation that is different. That is inconsistent. It is part of the general confusion today as to what we mean about marriage and bringing up children that we have inconsistent views. When it becomes inconvenient to consider the interests of children, we drop the matter. Nothing is mentioned in the Bill. We need to be consistent.

As my noble friend Lady Elles made absolutely clear in her opening remarks, this proposal does not mean asking children to put a veto on divorce. Obviously that would be an absurd proposition. However, it does mean that when the court considers the matter, the interests of the children ought to be

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amajor concern. I support these amendments and hope that my noble and learned friend will consider them very seriously.

6.45 p.m.

Baroness Carnegy of Lour: My Lords, I have not spoken before on this Bill. I did not want noble Lords to tell me that I had not been married and divorced and therefore knew nothing about it. However, I have done a lot of work with children. When I read in the press that my noble and learned friend the Lord Chancellor wanted children to be asked whether or not their parents should be divorced, I was absolutely horrified. I examined the Bill and the amendments, and found that he was not doing any such thing. But that is precisely what my noble friends--with whom I agree about so much in relation to the importance of children--suggest in subsection (5)(a) of Amendment No. 9 which refers to,

    "the ascertainable wishes and feelings of the child concerned".
In that context, a child is asked to say whether he or she wants the parents to divorce. I do not understand how we can say that that puts the paramount interests of the child first. If the child says no to divorce, the parents stay together in a miserable situation and the child will blame himself or herself. If the child says yes, they split up and the situation is miserable. Again, the child will blame himself or herself. In such a situation the marriage is already in a very bad state, and we know that children blame themselves for that. That is what happens. This is the wrong point at which to apply such a proposal.

The noble Lord, Lord Habgood, spoke about how children are consulted in mediation. With respect, that is completely different. I know a little about it, as I took a Private Member's Bill on mediation through this House last Session. Asking a child about the arrangements that will be made for him or her is quite different. Amendment No. 9 suggests that we ask a child: do you, or do you not want your parents to divorce? I cannot possibly go along with that, and I hope that my noble and learned friend will not.

Lord Meston: My Lords, I am concerned as to how this amendment would work in practice. I ask myself, "How would a court take an objective view as to whether or not dissolution of the marriage is in the interests of the child?", and examine that question case by case. I suspect a confusion of thought in this debate between dissolution of the marriage and separation of the parents. It is very important that that distinction is kept at the forefront of our considerations.

At least a year before the matter comes before the court, as it would under this amendment, the parents themselves probably will have already confronted the question of whether or not they should separate and will have asked themselves the question which parents in that situation must ask. It is a question to which I do not feel there is ever a satisfactory answer. It is whether to struggle on; try to stay together in conflict and unhappiness; or stay apart in relative peace (if not harmony) possibly to spare the children further distress but meaning that the children, unhappily, do not have two parents under the same roof.

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So far as concerns the wishes of the children, most children would say, if asked, that the one thing they really want is for their parents to be back together. But in case after case that is the one thing the children cannot have. Whether that is then translated into a reason for holding up or preventing the dissolution of the marriage is a different question altogether. However, I fear that one side effect of these amendments would be to involve the children more than they already inevitably will be involved. I subscribe to the view--it is the view of very experienced family lawyers--that in many cases children have the right not to have to decide these difficult questions.

As a matter of drafting, it seems to me that the amendment may well be in some ways inconsistent with Clause 2(1)(c) of the Bill. The other thing with which the courts will have to be concerned in any event is whether the arrangements required to be made for the children have been met. It is certainly right, if there is an issue about what is best for the children, that any question concerning the upbringing of the children is properly considered under the provisions of the Children Act, to which reference has already been made and of which the provisions set out in Amendment No. 9 are but part. Therefore, I have reservations about the amendments.

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