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The Lord Chancellor moved Amendment No. 2:


Page 68, line 19, at end insert--
("( ) for the entry in that column opposite the name of the Leicestershire police area there were substituted--
The county of Leicestershire",").

The noble and learned Lord said: I have already explained this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

Schedule 9 [Repeals and revocations]:

The Lord Chancellor moved Amendment No. 3:


Page 72, line 43, at end insert--
("S.I. 1996/00The Leicestershire(City of Leicester and District of Rutland) (Structural Change) Order 1996.Article 5.")

The noble and learned Lord said: I have already explained this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

House resumed: Bill reported with amendments.

Industrial Tribunals Bill [H.L.]

3 p.m.

The Lord Chancellor: My Lords, I understand that no amendments have been set down to this or the next Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee on either of them. Therefore, unless any noble Lord objects, I shall beg to move in each case that the order of recommitment be discharged.

Moved, That the order of recommitment be discharged.--(The Lord Chancellor.)

On Question, Motion agreed to.

Employment Rights Bill [H.L.]

The Lord Chancellor: My Lords, I beg to move that the order of recommitment be discharged.

Moved, That the order of recommitment be discharged.--(The Lord Chancellor.)

On Question, Motion agreed to.

4 Mar 1996 : Column 10

Family Law Bill [H.L.]

3.1 p.m.

The Lord Chancellor: My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 6 [Period for reflection and consideration]:

The Lord Chancellor moved Amendment No. 30:


Page 4, line 5, at end insert ("the fourteenth day after").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 32 and 71.

I have tabled these amendments in order to address the concerns expressed in Committee with regard to the commencement date of the period of reflection and consideration, where it is necessary for notice of the statement of marital breakdown to be served on the other party to a marriage. My noble friend Lord Coleraine moved an amendment in Committee to provide that where the statement of marital breakdown is made by only one party, the period of reflection and consideration should not commence until the statement has been served on the other party. There must, however, be absolute certainty as to the date of the period's commencement, as the divorce or separation process depends upon the passing of a prescribed period of time in order to establish irretrievable breakdown. There is no certain way of recording the date on which notice of the statement has been received by the other party, and in fact that party could go on denying receipt indefinitely. Not only therefore would there be uncertainty in this method, but it could give rise to deliberate obstruction on the part of the other party.

The date on which a statement is received by the court is a recorded fact and it is for this reason that the commencement of the period should depend upon this date. However, I have decided to extend the commencement date to 14 days from the date on which the statement is received by the court to allow for service of the statement on the other party. Rules which the Lord Chancellor is empowered to make under Clause 10 can then provide for the statement to be served on the other party within 14 days from the time it is received by the court.

Amendment No. 32 then takes the matter further by providing that where a statement of marital breakdown has been made by one party and rules require the court to serve a copy of the statement on the other party, the court may, on the application of that other party, extend the period for reflection and consideration where failure to comply with the rules of service has caused inordinate delay in the service of the statement.

Amendment No. 71 is necessary in order to enable rules made by the Lord Chancellor to provide for service of the statement and the circumstances in which such service can be dispensed with or substituted. It is obviously necessary for the purposes of the provisions contained in Amendments Nos. 30 and 32 that rules

4 Mar 1996 : Column 11

clearly set out the requirements as to service. It is more helpful for this to be done along with other rules relating directly to the statement and which are made under Clause 10, rather than generally in rules of court.

I think that these amendments adequately address the concerns expressed in Committee. They allow for additional time to be granted to parties where there has been inordinate delay, but place the responsibility for proving why there is good cause for extending the period on the party who alleges delay in service of the statement. This should protect against delaying tactics and deliberate obstruction on the part of the other party. I beg to move.

Lord Coleraine: My Lords, I am glad to hear from my noble and learned friend that the period for reflection and consideration will start 14 days after the court receives the statement. I quite understand that there are very good reasons why the amendment that I proposed in Committee could not be accepted in substance. I only hope that my noble and learned friend can assure the House that no difficulties will arise in a number of possible situations that can be envisaged. One is the absence on holiday abroad of the spouse who is being served with a statement. The other is possibly the spouse who served the statement interfering and seeing that the other spouse does not receive the statement. I am sure that rules of court cover these matters, but they are of concern.

The Lord Chancellor: My Lords, I am grateful to my noble friend. The purpose of the power to extend given to the court is to cope with any difficulties of the sort to which he referred. It is a fairly general power to deal with matters of that kind and I expect it to be able to be capable of dealing with the sort of circumstances that he mentioned.

On Question, amendment agreed to.

Baroness David moved Amendment No. 31:


Page 4, line 6, at end insert ("except where subsection (8) applies.").

The noble Baroness said: My Lords, in the absence of my noble friend Lord Irvine, I am moving these amendments.

Amendments Nos. 31 and 43 are in my noble friend's name. Amendment No. 43 is the substantive one which inserts a new subsection at page 4, line 21 which would read:


    "The court shall have the power to abridge the period for reflection and consideration if (but only if) the requirements of section 2(1) are satisfied and the court is satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage before such period has elapsed".
My Amendment No. 35 has the same purpose, which is, in very special cases, for the court to abridge the period for reflection and consideration.

The point is that it would be a great pity if the vast improvement which the Bill makes--a mandatory year for reflection and consideration--were made excessively restrictive by robbing the judges of any discretion to do justice in the rare cases where a divorce

4 Mar 1996 : Column 12

should be granted before the expiry of the 12-month period. Just as there are special cases where a year may be too short, so also the law should be flexible enough to allow for special cases where one year is too long.

I repeat the telling example given by my noble friend Lord Irvine in Committee on 23rd January:


    "A man who was separated from his wife more than 10 years ago was diagnosed in February of last year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with a new partner.


    The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and of course the co-operation of the courts. The divorce was finalised in June of that year; he died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit of not only herself, but also of their child. Happily, the child was born last summer".--[Official Report, 23/1/96; col. 961.]
I think that is a really telling example. No doubt it could be said that the couple should have divorced earlier, and in a sense therefore they were the authors of their own misfortune. I suppose that is true, but they did not. It would be extraordinarily harsh to say that they have only themselves to blame. I believe that no court should be prevented from doing justice in such an exceptional situation.

Presumably, the noble and learned Lord will argue, as he did in Committee, that a year for reflection and consideration is the minimum period necessary to demonstrate that the marriage has irreparably broken down. I accept that in the generality of cases. The question is whether that is necessary in every case. I suggest that the example I gave illustrates that it is not necessary.

Noble Lords will observe how narrow is the exception proposed under Amendment No. 43. The court has to be satisfied that it is necessary in the interests of the parties or any relevant children to dissolve the marriage before the year has elapsed. The word "necessary" signifies the highest conceivable threshold that would have to be surmounted before the subsection could be invoked. Necessary means that which is indispensable; that which cannot be done without. It is in sharp contradistinction to the word "reasonable", which would signify much broader discretion in the courts.

The noble and learned Lord also argued in Committee that there should be no circumstances in which the one-year period should be shortened--I quote him--


    "because it is necessary to send out a clear signal that marriage is an important relationship and that a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure".
I do not believe that the clear signal is diminished by so narrow an exception as proposed by the amendment.

I observed from my reading of the discussions at Committee stage that the noble and learned Lord did not respond directly to the example given in Committee by my noble friend Lord Irvine. I invite him to do so. Does not he agree that justice obviously requires that a divorce be granted in less than a year in that case, and that the Bill should not be so rigid as to deny it?

4 Mar 1996 : Column 13

As I said, Amendment No. 35 has the same aim but the application would be made by,


    "a person authorised by order of the Lord Chancellor".
That I hope will make the amendment more acceptable to him. Originally, the idea was that the application would be made by local authority social services; but, arguably, it might be more appropriate to empower court welfare officers or perhaps a guardian ad litem.

The point of having an authorised person rather than enabling the parties to make such an application is that we understand that the noble and learned Lord is determined not to permit a breach of the compulsory year because his main argument against the current fault-based divorce and his main defence of the Bill's reforms are that the new legislation prevents a "quickie" divorce. If he allows the parties to apply for the year to be abridged, he loses that line of defence.

The amendment is, therefore, framed to allow for the extreme circumstance, when neutral third parties are concerned that children are suffering because of the delay in obtaining a divorce. For example, social services might become involved because of concerns raised by the child's school or doctor. Alternatively, the court welfare officer might become aware of the situation because of Children Act private hearings during the year.

What kind of cases would be likely to trigger such an application? First, it must be accepted that the cases would not be about children needing to be protected from one of the parents. Children Act Section 8 contact orders (access), residence orders (custody) and prohibited steps or specific issue orders (about schooling or religion) can all be obtained during or before the compulsory year of reflection. Similarly, occupation orders under the Bill can be obtained during the year in cases of domestic violence.

So the kind of cases where a social worker or court welfare officer might want to apply for the final divorce to be speeded up would be relatively rare and would be about issues not directly about the child's upbringing or protection. For example, a speedy divorce might be needed for reasons of terminal illness, as in the case mentioned earlier by my noble friend; or where there were questions of nationality or immigration which would crucially affect the children--for example, where the children have British nationality but the mother does not and will be deported if she does not remarry, or where a new partner has a job opportunity in Britain but cannot enter without the citizenship obtained through remarriage. Some states will not allow cohabiting couples to enter and that can cause particular problems where an individual wishes to enter one of those states to fulfil an employment contract, and so on, and the couple wish to go abroad with the children of the family, as a family. A speedy divorce may be needed where the children are in poverty, which is affecting their welfare because the financial arrangements cannot be finalised until after the divorce; or where the children are suffering extreme psychological and emotional distress from the delay in finalising the proceedings--for example, if one of their parents has committed a grave offence, perhaps killed one of their siblings, but is still

4 Mar 1996 : Column 14

lawfully married to the other parent and is damaging the family through delaying tactics in the divorce proceedings; or in order to clarify the child's paternity, for example, where the new partner is in fact the child's father.

This amendment was not discussed at Committee stage. It has the support of a very wide range of organisations. Although sympathetic to the noble and learned Lord's determination to hold firm, everyone believes that there must be some machinery to allow the 12-month period to be shortened, albeit with great difficulty and in very exceptional circumstances, if the welfare of children is threatened. As my noble friend said in Committee, why may the year be lengthened under Clause 9 but, if these amendments are to be opposed, never abridged in special and unusual cases? There should be flexibility both ways. Judges should be trusted to identify those unusual and special cases in which one year is either too long or too short. I beg to move.

3.15 p.m.

Earl Russell: My Lords, I support the amendments and in particular Amendment No. 43, to which I put my name. This is a "free vote" Bill but I trust that I shall not infringe that principle if I observe that Procrustes was not a great liberal. I understand very well the pressures that the noble and learned Lord is under to keep down any exemptions to the one-year period. Nevertheless, in terms of realism and common humanity, we must allow that there are limits to the extent to which one single legal principle may fit every individual case.

These amendments are only concerned with exceptional cases. They are concerned with cases where significant physical or mental harm is likely to result to the parents or to the children from a delay in the divorce. They cover a number of possible situations--for example, cases of mental health. I personally have known cases in which it was essential to the mental health of one of the parties that the marriage should be dissolved; that the parties should feel free of it and be able within their own minds to start again. In the cases that I have known, happily, recovery was in the end complete.

That is not the only case. There are cases in which it is vitally in the interests of the children for the marriage to be dissolved and they should know that they will not need to deal with the person again. The case in my mind was referred to the local women's refuge. I apologise to the House for mentioning the details but we must deal with reality. The father was in the habit of buggering the children with a carefully sharpened pencil. In a case like that, divorce within less than a year was very much in the interests of the children, the mother and everybody else, including social services, which would otherwise have had to pick up the pieces.

That is the kind of case that I have in mind when I speak of Procrustes. We do not want to be precluded from showing mercy in such a case for the sake of a formula or an abstract principle, however good that principle may be. There are also straightforward cases

4 Mar 1996 : Column 15

of domestic violence. One can very easily underrate the determination and indeed the cunning of a man of property who approaches his wife in that spirit after divorce.

I appreciate that the recent tragic events in Birmingham and Bristol are sub judice. Nevertheless, I hope I may say that I have received representations in relation to these particular amendments from a close neighbour of the dead woman in that case. I believe that the relevance is clear enough.

There is also a case which was reported in the Independent on 1st February concerning a woman who refused to allow a contact order with her children and is facing the threat of gaol. The man had raped her and threatened her with guns. He appeared to have no willingness to cease to do so. In those circumstances she believed that contact was not in the interests of the children. I am inclined to take her point.

As long as there are dealings through lawyers it is perfectly easy to discover addresses. I have known cases of men of this type impersonating police officers in order to get information. As I said, determination cannot be underrated. Not everybody involved in this type of case, especially if they are accidentally involved, appreciates the risks involved. The risk of unauthorised disclosure of an address is considerable, when every such unauthorised disclosure may risk a life. These risks are not to be multiplied beyond necessity. So I believe that there are cases where it is conducive to the safety, and possibly even the life, of some of the parties that it should be possible to conclude a divorce quickly and to put the whole issue behind us. I am happy to support these amendments.


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