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Baroness Elles: My Lords, I support the amendment tabled by the noble Earl, Lord Russell, as a consequence of a debate during the Report stage. I appreciate the rigidity with which my noble and learned friend sticks to a minimum of a year. However, there must be a slight dent in that as regards exceptional cases. The noble Earl convinced me that there may be a case in which the court, without the amendment, will be deprived of taking action where a child or the other party to the marriage could be seriously harmed or murdered.
Reference has been made to such cases. My noble and learned friend will remember the debates that we had in relation to the Child Support Act. Many noble Lords from all sides were concerned that the party to the marriage who was due to pay maintenance would seek out and threaten violence to the other party or to the child. Therefore, the phenomenon is well-known and has not been fished out of the minds of noble Lords. I hope that my noble and learned friend will take seriously Amendment No. 9. It is most tightly drafted and can be used only in a limited number of cases.
Lord Robertson of Oakridge: My Lords, I appreciate the objectives behind the amendments, but I would caution your Lordships about agreeing to any exceptions to the basic rule. If we do so, we may see defences that are holed before they start. We should view the amendments with great caution.
The Lord Chancellor: My Lords, I appreciate the spirit behind these amendments and the fact that they have been tightly drawn. I agree that the word "necessary" used in Amendment No. 8 is a strong requirement. Indeed, it is difficult to imagine what stronger requirement could be placed upon it. I also understand that the application is to be made by a person authorised by order of the Lord Chancellor. However, I urge your Lordships to be careful about reducing the period of one year. That is the period required between the date on which the statement becomes effective and the date on which an order of divorce can first be granted.
As your Lordships will know--I and one or two others have said so often enough--the purpose of that is to provide convincing proof that the breakdown of the marriage is irretrievable. The period is intended to provide a realistic time for the parties to decide whether they can be reconciled and their marriage saved and, if not, to resolve the practical problems relating to marital breakdown.
However, the other provisions of the Bill, in particular those in Part IV, are designed to deal with such a situation. I feel strongly that if one has a period required to demonstrate the irretrievable breakdown of the marriage, in principle that period should not be capable of abridgement. Unless and until the marriage has irretrievably broken down, it cannot be right to grant a decree of divorce, whatever else one may do by way of protective orders and so forth.
I shall be happy to see whether we can make improvements to the protective orders. However, as was pointed out by my noble friend Lady Elles, even after divorce there may well be obligations of maintenance. Merely granting a decree of divorce does not necessarily end the need for some kind of correspondence or exchange between, say, the father and someone representing the mother. Even divorce does not undercut that completely in every case. Therefore, while I appreciate the reason behind the proposal, I do not see that it is an effective way of providing a particular type of relief. To overcome the difficulty of, for example, the inadvertent disclosure of addresses and so forth, we have to take steps to prevent that happening and to tighten up the arrangements and so forth.
Earl Russell: My Lords, before relying on measures to discourage the disclosure of addresses, would the noble and learned Lord take the advice of his honourable friends Mr. Burt and Mr. Mitchell who have done their level best to achieve this?
The Lord Chancellor: My Lords, I am happy to receive advice on this matter from whatever quarter, especially if it happens to be helpful. I understand the difficulty, but the noble Earl is saying that granting a decree of divorce early is not likely to effect what has eluded Mr. Burt and Mr. Mitchell. The noble Earl is, in effect, claiming for this order that the labours of Mr. Burt and Mr. Mitchell are suddenly to come to a good end because we have discovered that a way of handling the whole situation is to grant a divorce early. The problem is that these matters do and can subsist after the granting of a divorce. I am anxious to provide in law as good a protection for the parties and the children as is possible but, for the reasons that I have explained, I am not at all keen to do that to the damage of the effective need for a period of a year to demonstrate that the marriage has irretrievably broken down. All the protection of Part IV is available whether or not a divorce proceeding is in place. Of course, it continues to be available when a divorce proceeding is in place and after a divorce order is granted. There is nothing in the present Bill which will prevent courts making any of these orders in respect of children under the Children Act during the period for reflection. As your Lordships know, the Bill gives an extra power in that respect in the removal of the abuser from the home in some circumstances.
I submit that a power to abridge is inconsistent with the principal aim of the one-year period, which is to establish beyond doubt that the breakdown of the marriage is irretrievable. In my submission, it is an unabridgeable period, making a clear and absolute statement about the importance of marriage and its obligations and of parenthood. It is on that basis that I sought to deal with the earlier amendments.
I believe that introducing extensions of any kind to that rule will weaken the way in which the period is perceived. After all, where one party is anxious for a quick divorce, such a provision could well lead to allegations being made against the other party in order to show that a quick divorce would be fair and just and there may be a consequent increase in hostility, bitterness and trauma for the children.
Baroness Elles: My Lords, my noble and learned friend spoke about the protection of children. Will he assure me that, for example, a mother who wishes to take her child out of the jurisdiction will be free to do so in order to escape the activities of her partner?
The Lord Chancellor: My Lords, it would be within the power of the court in some circumstances to allow that to happen. It would be a matter for the court to decide. I have the provisions of the Children Act reasonably well in mind and my impression is that where it is necessary and the court is prepared to grant such an order, then that will be possible. Of course, very strong undertakings are required in relation to the jurisdiction of the court because, as my noble friend knows only too well, once the child is out of the jurisdiction of the court in some situations the court loses all control. That may not always be for the benefit of the child. Therefore, it would have to be a very extreme case, but it would be possible.
I mentioned previously--and it was referred to again--that hard cases make bad law. I stand by that remark and remain firmly of the opinion that we need a principle which emphasises the importance of a year as a test of whether a ground for dissolution exists. I remain unconvinced that the existence of particularly difficult circumstances should alter our adherence to that principle. I do not wish to make any exceptions to the requirement that parties may apply for a divorce only after a 12-month period for reflection and consideration and, indeed, when the parties have been married for at least two years.
The Government wish to have a definite period which is clear and unequivocal for everyone, without any exceptions. If it were impossible to meet the problems raised except in this way, I should think the matter worthy of consideration. But the explanations of the noble Lord and the intervention of the noble Earl, Lord Russell, show that such problems may well subsist even where an order of divorce has been granted. I am anxious to protect children but I do not feel that this is the wisest way in which to do so in the context of this Bill.
With respect to the noble and learned Lord on the Woolsack, his last argument, that the amendments could lead to abuse by the parties, ignores the fact that the amendments provide that only an independent person authorised by him may apply to the court in the interests of the children. Therefore, I desire to test the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.