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The Lord Chancellor moved Amendment No. 4:


Page 4, line 19, after ("saved") insert ("and to have an opportunity to effect a reconciliation").

The noble and learned Lord said: My Lords, in Committee the noble and learned Lord, Lord Simon of Glaisdale, tabled a number of amendments which sought to change the name of the period for reflection and consideration to the period for reconciliation, reflection and consideration. I indicated at the time that I supported the spirit in which these amendments were tabled, but foresaw some problems in accepting them and said that I would consider them further.

I have reached the conclusion that it would be inadvisable to rename the period in the way suggested. As I said in debate, reconciliation is an outcome, not a process, and the period of reflection and consideration a means of reaching that outcome.

I understand, however, my noble and learned friend's concerns that, as he said at Report stage, the year period should be used for opportunities of reconciliation. It is for that reason that I have tabled this amendment, the effect of which is to place an additional statement of purpose into Clause 7(1), which provides that the period which must pass before an application for a divorce or separation order can be made is for the parties to have the opportunity to effect a reconciliation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

The Lord Chancellor: My Lords, before I call Amendment No. 6, I should point out that if that amendment is agreed to, an effect will be had on Amendment No. 7.

Lord Irvine of Lairg moved Amendment No. 6:


Page 4, line 27, at end insert ("except where subsection (10) applies").

The noble Lord said: My Lords, in moving Amendment No. 6, I should like to speak also to Amendment No. 8. These amendments are intended to be a narrower substitute for the amendments numbered 31 and 43 which my noble friend Lady David was good enough to move on my behalf on 11th March, the third day of Report stage.

I support, in principle, Amendments Nos. 7 and 9 which stand in the names of the noble Earl, Lord Russell, and the noble Baroness, Lady Elles. The reason for my preference for Amendments Nos. 6 and 8, which stand in my name and that of my noble friend Lady David, is that because they are narrower and are

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focused exclusively on the interests of the children of the marriage they are most likely to attract the support of your Lordships' House.

Amendment No. 8 is the substantive amendment, which seeks to insert a new subsection at page 5, line 11, which would read:


    "On application by a person authorised by order of the Lord Chancellor the court shall have the power to abridge the period for reflection and consideration if (but only if) the requirements of section 2(1)"--

that should read "section 3(1)"; I am grateful to the noble Lord, Lord Robertson of Oakridge, for pointing that out to me--


    "are satisfied and the court is satisfied that it is necessary in the interests of any relevant children of the marriage, having regard to section 1(2) of the Children Act 1989, to dissolve the marriage before such period has elapsed.


    (11) Where the court decides to exercise its powers under subsection (10), it shall specify when the marriage is to be dissolved".

That amendment is narrower because, if carried, the earlier Amendment No. 43 would have given the court the power to abridge the period for reflection and consideration if the court was satisfied that it was necessary either in the interests of the parties or of any relevant children to dissolve the marriage before expiry of the year.

Amendment No. 8 gives the court a discretion to dissolve a marriage before expiry of a year, if, and only if, the court is satisfied that it is in the interests of any relevant children of the marriage to do so. No such discretion is given under the amendment to dissolve a marriage before the expiry of the year in the interests of the parties.

The amendment therefore puts the interests of the children centre stage, and gives the court an exceptional jurisdiction to dissolve a marriage prior to the expiry of the year where that is necessary in the interests of the children of the marriage.

I know that the noble and learned Lord has before expressed the opinion that a year for reflection and consideration is the minimum period necessary to demonstrate that a marriage has irretrievably broken down. I accept that as a general principle, but it should be capable of exception. I agree with the noble Earl, Lord Russell, when he said on 4th March that there are limits to the extent to which one single legal principle may fit every individual case.

I agree with the noble Earl too that there are cases in which it is vital in the interests of the children for the marriage to be dissolved before the expiry of the year. I was heartened to read the qualified support that the noble Baroness, Lady Young, who sadly is not in her place for the amendment, felt able to give my noble friend Lady David on Report when she said:


    "I can just see that there may be very limited cases where that might be necessary".--[Official Report, 4/3/96; col. 15.]

I appreciate that, on that occasion, the noble Baroness expressed her concern that any exception to the requirement of one year might open what she feared might be a floodgate. It is in recognition of her concern that I have drafted the amendment so narrowly.

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First, the power to be vested in the court would not be exercised on the application of either of the parties to the marriage. An application could be made only by a person authorised by order of the Lord Chancellor. I have in mind court welfare officers or perhaps a guardian ad litem. Such a person would apply only where he or she thought that a court should be given the opportunity to decide whether an earlier dissolution was necessary in the interests of any relevant children of the marriage.

The noble and learned Lord the Lord Chancellor will, I imagine, confirm that the word "necessary" signifies a very high 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 the toughest of tests to satisfy. I know that the noble and learned Lord is of the opinion that the law should send out a clear signal that marriage is an important relationship and a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure.

I do not, however, believe that the amendment conflicts with that principle, because application may be made only by a person authorised by order of the Lord Chancellor, and not the parties, and because the discretion is so narrow. When we have regard to the paramount interest of the welfare of the children of a marriage, to which the noble Baroness, Lady Young, called attention in moving her previous amendments, I do not see why the court should be deprived of a discretion to dissolve a marriage prior to the expiry of the year where the court is satisfied that early dissolution is necessary in the interests of the children.

The amendment is designed to put children first, and it is the children who are so often the casualties of marital breakdown. I beg to move.

The Lord Chancellor: My Lords, since the noble Lord has referred to Amendment No. 8, I would draw attention not merely to the correction that he made expressly, but also point out that he read the amendment as if it said:


    "relevant children of the marriage".

There is a misprint in the amendment as printed. What the noble Lord read out is what the amendment should be. I did not mention that earlier, because Amendment No. 8 has not been called formally, but as it forms part of the argument it is right that I should do so now.

Earl Russell: My Lords, I give my support to the amendment moved by the noble Lord, Lord Irvine of Lairg. I agree with pretty well everything that he said. This is a tightly drafted pair of amendments. They deal with cases which are, truly, in anyone's view, exceptional. I would like to speak also to Amendments Nos. 7 and 9 which are in my name and that of the noble Baroness, Lady Elles.

We had a particularly good debate on these issues on Report. The two amendments to which I wish to speak arise from that debate and are designed, so far as I can, to meet it. There was a general agreement in the House

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on Report that we wanted there to be some cases where it was necessary, for reasons of physical safety, for there to be an abridgement of the one-year period. But the view was also strongly expressed--I listened to it--that that should not be drafted in any way which would open the floodgates to a much more general use of a limited period; that this was to be, it was felt, a provision simply for safety--a safety valve in the most literal sense of the phrase.

The amendments in my name and that of the noble Baroness, Lady Elles, are designed to achieve precisely that objective. First, they are confined to allowing the court to abridge the one-year period in cases of domestic violence only. Those situations are--thank God!--exceptional, but they can be very acute. But that is not the only restriction.

The second restriction in Amendment No. 9 is that the abridgement is possible only in cases involving the fear of significant physical harm to one of the parties or any relevant child. There is no loophole here for mental harm. That can be acute, but it is something which is very much harder to define than physical harm. So the restriction to physical harm is meant to meet the requirement that the amendment should be tight. I believe that it does so.

The next restriction is that it should apply only to cases where it appears to the court that the provisions of Part IV--that is what was once the Family Homes and Domestic Violence Bill--will not guarantee sufficient protection or access to safe accommodation.

The insertion of that provision is not meant in the least degree to diminish my gratitude to the noble and learned Lord the Lord Chancellor for all he has done in promoting Part IV. It is truly a valuable measure, but there are some men who are so ruthlessly determined to reclaim their property that practically none of these provisions seems to stand up against them. We have had murders committed by former partners inside women's refuges. If those are not safe, I do not know what on earth is.

In those cases usually the only way a women can achieve safety is by living in some different part of the country, changing her name, and probably changing her hairstyle as well. In those circumstances, there may be safety, but the ability to conceal completely what her whereabouts may be cannot be achieved while negotiations for divorce are still in progress. Where there are negotiations for a divorce, there must be correspondence with lawyers. It is not understood as widely as it should be, but in cases involving acute domestic violence, the withholding of information from the threatening party can be absolutely vital. I have known such information obtained in the most devious of ways from the most unsuspecting, innocent, and public spirited people. For that reason I believe that it is essential that in cases where life may be at stake it is better to allow an abridgement of the period of reflection and consideration than it is to force the noble and learned Lord, Lord Taylor of Gosforth, to further careful consideration of the law of provocation, no doubt at great expense to the Legal Aid Fund however well he would undoubtedly do it.

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I hope that the amendments will meet with the approval of the House. I am extremely happy with the amendments moved by the noble Lord, Lord Irvine of Lairg. I shall listen most carefully to the noble and learned Lord on the Woolsack to see whether there is a different way in which the objective can be achieved. I hope that one way or another some safety valve will be left.


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