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The Lord Chancellor: My Lords, these are amendments of very great importance, and in responding to them I should like to try to answer one of the questions that was put to me. As I understand Amendment No. 7, it would prevent the grant of an order of divorce if it were contrary to the interests of any child of the family. If one leaves that out of account, there is not really a basis for the later provision in relation to that particular object. But it may well be that the object will be served in some other context--the welfare of the child will come into consideration in some other context.
The question of how children's existence should be taken into account in relation to a divorce is a very difficult one. Hitherto, it has been done by requiring that where the court considers that powers under the Children Act should be exercised in connection with the children, the court may postpone the granting of the divorce until it does just that. The provisions of the Children Act are intended to deal with all the circumstances which affect a child's welfare; where the child lives, when that is in dispute; with whom the child should have contact; points to do with where the child should be educated; and so on--four particular types of order especially in Part II of the Children Act. Paragraphs (a) to (d) of Amendment No. 9 are taken from criteria in the Children Act for deciding these matters. Hitherto, the position has been that the arrangements for the children are to be considered against the background of these criteria. That is the arrangement for the children on the divorce. It has not hitherto been regarded as part of the consideration of whether or not a divorce should be granted at all.
The extreme view is the one contained in Amendment No. 8 in the name of my noble and learned friend Lord Simon of Glaisdale. He would reduce divorces at a stroke by not allowing them in the case of there being children under the age of 16. The logical consequence of that is that if you want to reduce divorces altogether at a stroke you bring in a law to say that there will be no divorce. Would that meet our present situation? You would certainly make sure that there were no divorces--no legal divorces, anyway--but you might well unleash very powerful forces.
The Lord Chancellor: My Lords, I am sure that my noble and learned friend will have read history about this matter as much as I have. Certainly one way out of these situations in past centuries was the drastic one of one or other of the parties terminating their lives. To my mind this is a serious matter. The idea that by getting rid of a divorce order you
I agree with the view expressed by the noble Lord, Lord Moran, my noble friend Lady Young and others that the present situation is serious and that is why I think it needs to be addressed, and addressed by means of the provisions of this Bill which encourage--that is the most the state can do--people to try to save their marriages. It is not a task that will always be successful but it is a task on which help is important.
In relation to the children of the marriage, it was said by a number of noble Lords that it is not intended that what is proposed should produce a veto. If it does not produce a veto, it is hard to see how it will work. So far as I understand these amendments, they do not seem to me to have implied in them a practical way of working.
Perhaps I may suggest--it may be somewhat presumptuous on my part--that one way of looking at this is by reference to the hardship bar; to use the hardship bar as a mechanism by which the interests of the children should be considered. Having regard to the debates in Committee, I have proposed that that is a way of dealing with the matter. Where there is substantial hardship to a child or children of the marriage resulting from the order of dissolution, the court should have a discretion to refuse the order of dissolution. That seems to me to provide a practical and reasonable way of handling this matter. It may be that my noble friend Lady Elles would like to do more in that connection, but that is a basis on which this matter can be approached.
I have also to point out that part of the arrangements in connection with a divorce before it can be granted under the provisions of the Bill is that the arrangements for the children are before the court. I have embodied in Amendment No. 137, to which my noble friend Lady Young referred, the criteria that my noble friend Lady Elles proposed in her earlier amendment, which is similar to one she proposed in Committee, for bringing into effect the operation of the Children Act in conjunction with the divorce arrangements. That is the right thing and the right way to look at it.
The court, in considering the divorce arrangements, should consider those that the parties have made for the children by reference to the criteria we have set out. In that way a practical arrangement is possible for taking proper account of the interests of the children. The Children Act allows the court to take account of the various matters referred to in subsection (5)(a), (b) and (c). It is perfectly reasonable that the interests, wishes and feelings of the child should be taken into account when considering, for example, where it should stay and with whom it should have contact. It is quite a different thing to say that those
My understanding of the research is that what really causes damage to the children is the breakdown of the marriage usually leading to separation of the unit of husband and wife into two distinct units. The child cannot stay with both and feels torn in two. That is a real danger. It usually happens sometime before the divorce. In considering the dissolution of the marriage there is nothing that the court can do to put that right unless the parties are persuaded, by means of the kind of things we are seeking to encourage here, to do it for themselves.
In my submission the Bill provides the correct framework. I am certainly willing to consider whether anything further should be done in relation to the hardship bar. I believe that that is the right way forward and the only practical way in which interests can be taken into account in a way which does not distort the whole divorce process which is, after all, not a process for the children, although it has effects on them, but for dissolving the marriage of their parents.
I invite my noble friend to withdraw the amendment. We may be able to consider whether anything more requires to be done in relation to the hardship bar and the other amendments I have suggested. I believe that we have come quite a long way towards dealing with the problem appropriately by later amendments.
Baroness Elles: My Lords, I am very grateful to my noble and learned friend for a rather generous offer. I shall withdraw the amendment. I would like to consider further ways in which subsection (5)(c) can be brought into the Bill in some form or other and particularly the three paragraphs which come from the Children Act. Perhaps they can be put into Clause 9 so that they will be part of the consideration of the way in which the court will consider the welfare of the children. That may be one way around the problem. I would like to consider that later.
I am surprised that some noble Lords question the words "wishes" and "feelings" which were so strongly supported in this House when the Children Bill, as it then was, was being debated. They are the precise words taken from the text of the Children Act. I realise that there are many who consider that there would be a veto on the divorce if the interests of the children were taken into account. Some of us share the deep feelings of the noble and learned Lord, Lord Simon, as regards the fact that probably there should not be any divorce, particularly where there are children under the age of 16. I accept, however, that that would not be the feeling of the House and that it would not be acceptable. I know that the noble Lord, Lord Stoddart, would object when I say "in this day and age" because of the way people regard divorce.
Perhaps I may conclude with one comment to the House about what is happening to children. A teacher used to talk to a class in Newcastle every year on religious themes. He found that he could no longer do so because he could not talk any more about God the Father because, although the children knew about God,
The Lord Chancellor: My Lords, before my noble friend sits down perhaps she can help me on this point. One of the problems is that as a result of the breakdown of a marriage many children are not in contact with their fathers. Is it not right that one of the ways of trying to alleviate that is to preserve, on the breakdown of a marriage, a good relationship between the children and their father?
Baroness Elles: My Lords, I agree entirely with my noble and learned friend. I thank him very much for the amendment that he has tabled which reflects one that I tabled earlier referring precisely to contact between both parents. We at least share that particular view. I am very grateful to my noble and learned friend for having raised the matter.