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Baroness Hollis of Heigham moved Amendment No. 86A:


After Clause 13, insert the following new clause--

Divison of pension assets

(".--(1) Section 25B of the Matrimonial Causes Act 1973 (benefits under a pension scheme on divorce, etc.) is amended as follows--
(a) in subsection (2), after paragraph (b), there is inserted ", and
(c) in particular, where the court determines to make such an order, whether the order should provide for the assets in respect of which the rights of the party with pension rights have accrued ("the pension assets") to be divided between the party with pension rights and the other party in such a way as to reduce the pension rights of the party with pension rights and to create pension rights for the other party;";
(b) in subsection (4), after "pension rights", there is inserted "or if the court makes an order that the pension assets should be divided"; and
(c) at the end of subsection (4), there is inserted "save that, in the case of an unfunded pension scheme, no order may be made which would allow assets to be removed from the scheme earlier than would otherwise have been the case".
(2) Section 10 of the Family Law (Scotland) Act 1985 (sharing of value of matrimonial property), is amended as follows--
(a) in subsection (5) at the end of paragraph (b), there is inserted ", and
(c) in the assets in respect of which either party has accrued rights to benefits under a pension scheme"; and.

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(b) after subsection (5) there is inserted--
"(5A) In the case of an unfunded pension scheme, the court may not make an order which would allow assets to be removed from the scheme earlier than would otherwise have been the case.".").

The noble Baroness said: My Lords, Amendment No. 86A is consequential upon Amendment No. 10, which the House has debated and accepted. I beg to move.

Lord Clifford of Chudleigh: My Lords, share and share alike is an ideal which is fostered at the beginning of a marriage, through a marriage, and with children. However, because of the very presence of the children--

Baroness Hollis of Heigham: My Lords, I hope that the noble Lord will forgive my intervention. I defer to the noble Baroness, Lady Trumpington.

Baroness Trumpington: My Lords, may I ask whether the noble Lord is speaking to the amendment? He must do so.

Baroness Hollis of Heigham: My Lords, if noble Lords will forgive me, the amendment has already been spoken to in the debate on Amendment No. 10. Therefore I assumed that the consent of the House was in that sense a formal consent.

Baroness Trumpington: My Lords, I apologise to the noble Baroness. She is perfectly correct. The noble Lord will now have heard what she said. He cannot continue.

On Question, amendment agreed to.

[Amendment No. 87 had been withdrawn from the Marshalled List.]

Baroness Elles moved Amendment No. 88:


Before Clause 15, insert the following new clause--

Duties of Court Welfare Officer

(" . Where any proceedings under this Part are before the court and there are children of the marriage, it shall be an obligation on the Court Welfare Officer in compiling any reports in relation to the residence of the children or contact with the children to use his best endeavours to interview the children in the presence of each of the parents and, where this is not done, in coming to any decision based upon such a report the court shall adjust the weight that it shall give to that report accordingly.").

The noble Baroness said: My Lords, Amendment No. 88 provides for the duties of the court welfare officer in regard to reporting the feelings and interests of the child. Having had considerable debate about children being asked to give their views, particularly in front of the parents, in this amendment, I should be happy for the principle of the duty of the court welfare officer to be considered, but not necessarily to provide that he interviews the children in the presence of each of the parents.

Amendment No. 25, introduced extremely ably by the noble and learned Lord, Lord Simon of Glaisdale, provides that the interests of the children are represented by the Official Solicitor in certain cases. Amendment No. 62, introduced by the noble Lord, Lord Northbourne, as regards the person who should be allocated the task of speaking on behalf of the children in the court, suggests a children's officer, a guardian ad litem or a welfare officer.

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I have never been quite satisfied or clear as to who my noble and learned friend considered the appropriate person to speak to the court at the appropriate time on behalf of the children. As I understand it, under the present divorce law it is for the court welfare officer to write a report on behalf of the children to represent their views, feelings and interests to the court. I also understand that because of the pace at which things move through the courts--many undefended divorces do not come before the court; the process is in writing--the interests of the children, if I may so say, are shoved under the carpet and not fully considered.

I put forward the amendment in order to find out from my noble and learned friend, or from those who practise in the divorce courts, how the interests of the child are represented to the court before divorce is granted. What is considered? What weight is given to the report of the welfare officer? Is that officer the right person to undertake that duty at the different stages at which the question of representation has been raised?

Amendment No. 137 is grouped with Amendment No. 88. I have no doubt that my noble and learned friend will speak to that himself. Perhaps I may say how grateful I am to him for having put the provisions of my Amendment No. 87 into the amended Section 41 of the 1973 Act.

Lord Moran: My Lords, like the noble Baroness, I, too, would like clarification as to what the noble and learned Lord considers most appropriate for the representation of the children's interests in court.

Like the noble Baroness, perhaps I may again express my gratitude to the noble and learned Lord for Amendment No. 137 as regards reintroducing the factor of fault in the part of the Bill where the noble and learned Lord considers it belongs.

Lord Mishcon: My Lords, I am quite sure that it is good that the noble and learned Lord will tell us about the conduct of the welfare officer as regards the welfare of the children. However, unless I have misunderstood the wording of the amendment, I am a little worried. It seems as though the welfare officer would be prevented by this wording from seeing the child on his or her own. I should have thought that it was fundamental that the welfare officer should see the child on his own. I entirely agree that, if the welfare officer is to prepare a proper report, it would be advisable for the welfare officer to see the child in the presence of each of the parents separately. I am quite aware of that fact. But I would hate the idea that the welfare officer is told, "You are expected to interview in the presence of a parent but not to interview the child on his own".

Baroness Elles: My Lords, with the permission of the House, perhaps I may explain the position to the noble Lord. In introducing the amendment, I suggested that I should delete the words:


    "in the presence of each of the parents",

or of the parents together. I hope that that answers the noble Lord's point.

Lord Simon of Glaisdale: My Lords, as I ventured to suggest last week, I do not believe that we have

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achieved a consensus on two separate questions: how the children's views should be ascertained, and how the children's interests should be represented. I respectfully agree with the noble Baroness that the welfare officer has an important part to play. He is a probation officer seconded from the probation service for specialist duties: family mediation and conciliation, particularly as regards the children. I do not believe that he is the proper person to represent the children's interests when they are required to be presented to the court, although he may well be the best person to represent the children's views.

I suggested last week that the Official Solicitor was the proper person to represent the interests of the children. I was convinced by my noble and learned friend that the Official Solicitor would not be an appropriate person to carry out that task in all circumstances and in respect of every child whose interests came before the court. However, he has a supervisory role, particularly to instruct counsel in the odd cases where the interests of the child should be represented by counsel.

I suggest that, since the Bill must go to another place, my noble and learned friend may canvass opinion more widely on the basis of the several views that have been expressed in your Lordships' House as to how the two separate functions are best performed and in what degree and what number in each case.

Lord Meston: My Lords, as I understand Amendment No. 88, it presupposes that there is before the court the question of either the residence of the children or contact with them. That would normally arise under the Children Act rather than under the provisions of the Bill. In any event, it is dangerous to think of the court welfare officer as somehow expected to represent the interests of the child in any formal sense. There are cases in which a child is represented in a formal sense either by the Official Solicitor--although resources of the Official Solicitor's office would not allow that to happen in many cases--or by a guardian ad litem from the panel of guardians ad litem.

In such situations, the court welfare officer does not formally represent the child but performs the functions of the eyes and ears of the court, to report back to the court the various material considerations under Section 1 of the Children Act. I can see that there may be cases in which a welfare officer's assistance would be valuable under the provisions of the hardship bar, as it has now been amended this afternoon.

As to the provisions of the rest of the amendment, I bear in mind the qualification as to the noble Baroness's wording, but it is normally good practice for a welfare officer in an appropriate case to speak to the child or children in the presence of each parent, if that is possible. It is normal practice that if, for some reason, the welfare officer has been unable to speak to the child in the presence of one or other parent or has somehow failed to do so, the court would give that defect weight in reaching its decision. Equally, it must be within the discretion of a welfare officer whether he or she should interview the child in the presence of a parent or alone, or whether the child should be interviewed in the

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presence of siblings or a combination of those possibilities. Therefore, with respect to the noble Baroness, I question the circumstances in which she sees the amendment as being useful. Perhaps it is simply designed to add emphasis to existing good practice.

5.15 p.m.

Lord Northbourne: My Lords, I wish to ask a question for information in relation to this amendment and some earlier ones which have referred to the real need for someone to befriend and support the child. My recollection is that Section 17 of the Children Act provides for local authorities to consider the problem of children in need in their area and to make provision for them. I should have thought that children whose parents are undergoing divorce would fall into the category of children in need and that the local authority should make provision for befriending and supporting them.


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