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I wish to make three points. I do not believe that children should be involved in the divorce process. That is the wrong approach to the matter, and has been misrepresented in the press. I believe that every child needs somebody to go to who is neither the mother nor the father. However, I believe that any good mother and father, even though they are separating, should be the ones to tell the children what is happening and help them to understand.
The amendment in the name of my noble friend Lady Elles is allied to Amendment No. 60. I believe that there ought to be somebody to whom the child has easy access, who can befriend, assist and support the child at the time of the divorce. Sometimes, the more children love their parents, when their parents are in difficulties the less they can talk to them. The children really need to have someone to talk to and to help them. But that person must be known to them and easily accessible to them at the time of the divorce.
I suggest that that person needs to befriend the child because things are not easy afterwards--not for the first year nor sometimes the second year. The children may want to change their contacts and access visits. Boys in particular as they grow older want to see more of their father if they are not living with him.
There then comes the problem: who should that person be? There are 50 county regional centres in the country where children could go. I do not feel happy about that because the child needs easy access to that person. Therefore I am in some difficulty. I have proposed that there should be a special children's officer but I have not come to a conclusion as to who that person should be. However, I believe that the child should have someone to whom he or she can go at the time of the breakdown and subsequently.
Baroness David: My Lords, I have put my name to three of the amendments. I was not happy about the grouping. I think that it is difficult--they are slightly different issues--but the child is at the centre of them all.
So far as concerns Amendment No. 24, I think we are trying to bring the Scottish law into English law. As we have often said before, the Scottish law is sometimes rather in advance of ours. In Amendment No. 24 the new clause introduces into the divorce process the "Scottish Act" duty of parents to consult children about major decisions affecting them.
Section 6 of the Children (Scotland) Act 1995 introduces this duty as part of its general definition of "parental responsibility". This new clause is limited to decisions made after a statement of marital breakdown has been filed.
Another argument that I would put in support of the amendment is that, if parents do not agree arrangements for children and the issues come to court, the court must by law consider the ascertainable views of the child. That is in Section 1(3) of the Children Act 1989. So it seems to me completely illogical for the child's views to be a statutory factor at a contested stage but not at the earlier uncontested stage. That is the point I should like to emphasise about Amendment No. 24.
The noble Baroness, Lady Faithfull, spoke to Amendment No. 60 in her name. However, my name is at the top of the list as regards Amendment No. 75. Much attention has been paid to the child's position in mediation services but little to the child's position when the parties are seeking legal representation. However, the issues are just the same. Lawyers, as much as mediators, should be drawing the parties' attention to their responsibilities as parents for their children's welfare.
Lawyers have arguably an even greater duty to ensure that parents are taking into account children's views since it is only in contested adversarial proceedings that the Children Act requires courts to have regard to children's views. That is Section 1(3) of the Children Act.
There is now some evidence that lawyers are not very alert to children's interests in family cases. This evidence comes from the Centre of Socio-Legal Studies in Wolfson College, Oxford. This amendment might help focus their minds on the importance of this.
Lord Simon of Glaisdale: My Lords, there are two different problems which inevitably become somewhat conflated, and have, I think, on the discussion of these amendments. The first is ascertainment of the views of any relevant child; and the second is the representation of the interests of any relevant child. The second is raised by the next amendment, in my name, which corresponds to a number of other suggestions as to how the child shall be represented.
As to ascertaining the views of the child, we have the precedent of the Children Act. However, in the context of a divorce, I venture strongly to second the remarks of the noble Baroness, Lady Faithfull. The more that children are kept out of the divorce process, the better. I am very strongly against any suggestion that a child should be interviewed in the presence of a parent. That would be a very embarrassing situation and one that would be likely to produce a distorted view of what the child's views really were.
Earl Russell: My Lords, the noble Baroness, Lady Faithfull, has at a stroke removed a number of my anxieties about this group of amendments. However, one or two questions still cause me anxiety. One crucial point, on which I am not entirely happy with either answer, is whether the parents would know what the child had said when its views were sought. That
There is nothing whatever wrong with the opinion. However, as I understand it, taken literally, that would mean supplying information to a babe in arms that is relevant to its age and understanding. I do not know how I should set about that. Including an age limit might improve the proposal.
The Lord Chancellor: My Lords, a variety of matters is covered under this group of amendments. In relation to Amendment No. 24 in its previous form at Committee stage, I mentioned that there were problems in relation to divorce because the parties to the divorce might have parental responsibility in respect of children other than the children directly affected. It would be very strange in a Bill of this kind to impose a duty to consult a child who was not affected by the divorce.
The other point on Amendment No. 24 which is quite fundamental is this. This sort of amendment would be required to have some kind of legal effect. I suggest that such an amendment is likely to make private decision-making extremely difficult and to drag children into parental disputes. I agree with my noble and learned friend Lord Simon and with my noble friend Lady Faithfull. The last thing we want to do is drag children into disputes between their parents.
That is not the kind of situation in which an enforceable legal obligation would seem to be appropriate. We all want parents to make the best possible decisions for their children when fulfilling a parental responsibility or exercising a parental right. I myself prefer the first part--parental responsibility is, I think, the theme of the Children Act--rather than talking about rights. If what is wanted is that the parents should, as a practical and private matter, consult their children in relation to matters affecting the children, I agree that that is eminently desirable, but I do not know that it can easily be put into effect in an amendment of this kind.
I indicated earlier--I have now given effect to this point in Amendment No. 137--that one way to handle the matter would be to ensure that the remit of mediators specifically addressed that question and that the court, when considering whether or not it was necessary to make an order under the Children Act, should have to consider specific circumstances in relation to children. I tabled Amendment No. 137 to have that effect. As your Lordships know, I tabled additionally amendments
With regard to Amendment No. 25, I think it unnecessary to have this kind of provision. The principle is that on the whole the families should look after the children. The public authorities, courts or local authorities should not intervene except where there is good reason, and the court itself should not make an order unless it is satisfied that to make the order would be beneficial for the child.
To have the Official Solicitor representing every child in every divorce in England and Wales would seem to be a terrible waste of extremely valuable resources. The Official Solicitor has great skill and is extremely valuable in representing children in certain types of proceedings. But I submit that to have him engaged in every divorce case would be inappropriate.
The next series of amendments in this group comprises Amendments Nos. 60, 61 and 62. Looking first at Amendment No. 60, this amendment could lead to children becoming more routinely involved in taking sides in disputes with their parents. That might well have long-term implications for the family's relationships in the future. As I said earlier, and have repeated often, it is absolutely essential that we do what we can to preserve the relationship between children and both parents.
The court is already required to regard the child's welfare as its paramount consideration in determining issues in the child's upbringing. However much we might wish to the contrary, what a child wants and what is in its best interests may not always coincide. The difficulty that my noble friend herself found in deciding who should do that is very well founded from the practical point of view. Where the court believes that the parents may be able to resolve issues of dispute for themselves, mediation offers a better opportunity for the voice of the child to be heard than the existing system. I have already mentioned Amendment No. 137 in that connection.
Mediators will always remind parents of the need to take account of the views of their children in reaching agreement as to their upbringing. That is the area in which this point is best put rather than expressing it as a legal obligation in respect of the parents. It is best to make it part of the mediation system that the mediators should remind parents of that position.
I should perhaps mention that court staff are well used to dealing with queries from families; for example, with respect to the arrangements available for children to attend court. Care and family hearing centres in court have dedicated family sections so that staff have specific expertise in that area, although they do not have any type of advisory function in relation to the court.
The court services are currently considering a recommendation by the Children Act Advisory Committee that a liaison officer should be appointed in each court dealing with family matters so that primary responsibility for administrative issues concerning children should be vested in one person. That may
The production of the welfare report will often include ascertaining the wishes and feelings of the child. As my noble friend knows, if the court is sufficiently concerned about the welfare of a child, it can consider a supervision or care order in respect of care from the local authority. The court may direct the authority to investigate the child's circumstances under Section 37(1) of the Children Act. The existing arrangements being developed in the way I explained could cope with that problem reasonably well, in cases where it may arise, without further provision.
In relation to Amendment No. 61, I agree with the principle that lies behind the amendment; namely, that children should be informed about what is happening to them, what will happen to them in the future and what they can do about it. The pilot of the information meetings may well help us to see how that can best be done. Those noble Lords concerned in the amendment know only too well from their own experience that the requirements of children in respect of information are quite delicate and different. It would be difficult to envisage satisfactory arrangements in all cases. This is therefore an area that the pilot studies can test for us.
Amendment No. 62 duplicates provisions already available concerning the protection and welfare of children. In some circumstances it could lead to the escalation of hostility and bitterness, not only between the parties, but also between the extended families. Any person who is concerned that the safety of a child may be at risk, can report those concerns to the NSPCC or to the social services. Where they believe that they have an interest in the proceedings regarding the child, the Children Act and accompanying rules enable them to make an application to be a party to the proceedings.
I wish, if I may, to consider Amendment No. 75 further. I tabled Amendment No. 99B, which is concerned to ensure that mediators are in a position to practice in accordance with the principles of the Bill. Specifically, that amendment provides that the Legal Aid Board may not contract with mediators unless they have in place arrangements to ensure that reconciliation is kept under review throughout the mediation and that the parents are encouraged to consider the welfare, wishes and feelings of their children.
On reflection, it does not seem right that mediators should be required to ensure that arrangements are in place with regard to matters such as reconciliation, children and the availability of legal advice, but legal representatives merely need to self-certify whether or not they have discussed mediation and reconciliation with parties. I am minded therefore to bring forward a government amendment at Third Reading which would strengthen the provisions of Clause 10 by requiring legal representatives not only to inform about marriage counselling and mediation, but also about the need for
I hope that that is a reasonable response to matters that I regard as extremely important but in which there is a delicacy about how far we should involve children in their parents' disputes. That was a point of general importance in our debate in all parts of the House. In the light of those considerations, I hope that the noble Lord, Lord Northbourne, and those who support him will feel able to withdraw Amendment No. 24.
Lord Northbourne: My Lords, before the noble and learned Lord sits down--I say that in order that he may be able to reply to me if he is willing to do so--I have not fully understood whether he gave me a clear answer on the question of whether the noble Lord, Lord Irvine of Lairg, was right in the way he described the apparently cavalier attitude which courts at the moment have to the welfare of children and whether that will be different under the provisions of the new Bill.
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