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Lord Simon of Glaisdale: My Lords, before my noble and learned friend is finally allowed to settle down, he mentioned that he expected a substantial shift in resources from legal aid to counselling. Could he at least put a figure on that, and also, desirably, on the total cost of the counselling service?

The Lord Chancellor: My Lords, it is quite impossible to do that at the present moment because the precise nature of the arrangements require to be taken into account. My information is that the hourly charges in respect of counselling are very much less than the corresponding charges in respect of legal aid. I hope that there will be more take-up of counselling with the result that there will be less need for legal aid either as regards advice or representation in proceedings. The arrangement this Bill is based on is that the overall cost will remain no greater than the cost of legal aid in respect of the present services, plus the amount which is presently the amount of the grant to the marriage guidance services. Obviously, the precise costs will depend very much on the take-up of that provision. I certainly hope we can encourage that take-up so that the amount that is allocated ultimately to marriage counselling rather than to legal aid is as high a proportion as the practicalities allow.

On Question, Motion agreed to.

COMMONS AMENDMENT

2 Clause 1, page 1, line 22, at end insert '; and
(d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.

Together with this amendment I wish to speak also to Commons Amendments Nos. 30, 31, 42 and 62. Amendment No. 2 inserts in the general principles clause the principle,


    "that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished".

This principle will guide me in making regulations under the Bill, for example, as to attendance at information meetings or attendance at a mediation assessment meeting. It will also inform the actions of those conducting such meetings, mediators and anyone else exercising functions under Parts II and III of the Bill. So in a sense it is a further building on the work of the noble Lord, Lord Stallard, when the Bill was in this House.

Amendments Nos. 30, 31, 41 and 62 introduce into Schedule 1 a further exemption to the requirement of Clause 9 that financial arrangements must be decided upon before a divorce or separation order can be

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granted. Your Lordships will remember that I regard that as quite an important part of our proposals. Having regard to the considerations before the other place, the additional exemption has been inserted. It will apply where there is an occupation order or non-molestation order in force in favour of the applicant, or a child of the family, against the respondent, provided certain requirements have been fulfilled and that delay would be significantly detrimental to the welfare of any child or seriously prejudicial to the applicant.

I believe that it would be wrong for a divorce to be denied on the ground that financial arrangements had not been settled when domestic violence by the respondent is or has been present in the family, provided the applicant has made every effort to comply with the requirements as to the parties' financial arrangements for the future. It should be no part of the law regulating divorce that the victims of domestic violence should be locked into such destructive relationships because the other party to the marriage will not co-operate in making financial arrangements for the future. In my submission to your Lordships, I am anxious to preserve the general principle, but that I regard as a wise exception.

Moved, That the House do agree with the Commons in their Amendment No. 2.--(The Lord Chancellor.)

Lord Irvine of Lairg: My Lords, Part IV of the Bill is about domestic violence. It started as a separate Bill in this House and then was hijacked in the other place by certain Members of the noble and learned Lord's party there. I shall not cause him pain by saying any more. It is to his great credit that he brought back the substance of its provisions as part of this Bill. He could have lost both his Domestic Violence Bill and this Family Law Bill, but he has lost neither.

Structurally, the substantial incorporation of the old Domestic Violence Bill into this Bill has resulted in there being a division between the domestic violence provisions and the divorce and separation provisions. To my mind the real significance of the group of amendments from the other place is that they draw attention to the overlap between the two sets of provisions when domestic violence or the threat of it is a feature of the divorce process. As the noble and learned Lord said, that is the significance of Amendments Nos. 30, 31, 41 and 62.

The failure to agree financial arrangements as a bar to the making of a divorce or separation order should not apply--and I agree with the noble and learned Lord--where there is an occupation order or a non-molestation order in being against the respondent in favour of the applicant or a child. That should be the case where the applicant has genuinely tried to arrive at an agreement about the financial arrangements but without success, when no such agreement is in reasonable prospect and when the delay in the grant of divorce would seriously prejudice the applicant or be seriously detrimental to the welfare of any child. I agree, therefore, that these are beneficial amendments.

Finally, I particularly welcome Amendment No. 2, an amendment moved by my party in the other place and accepted by the Government at the Commons Report

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stage. As the noble and learned Lord said, it adds to the general principles clause the requirement that the court and any person exercising functions under Parts II and III shall have regard to this new general principle:


    "that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished".

The noble and learned Lord has been good enough to acknowledge that it was my noble friend Lord Stallard on these Benches who was the author of the idea that the Bill should include a general principles clause. From this Front Bench I supported it in principle, as did the noble and learned Lord, who was hospitable to the suggestion, as the other place proved to be.

I am sure that noble Lords will agree that as a result of the amendments in the other place, the clause has been significantly improved. Also, as we noted in our discussions on Amendment No. 1, Clause 1 has been further strengthened by the other place in another important way: a high profile has been given to marriage counselling as a distinct process designed to save a marriage. For those reasons, I welcome this group of amendments.

Earl Russell: My Lords, I too welcome the group of amendments and extend a particularly warm welcome to Amendments Nos. 2 and 42. In doing so, I pay tribute to the part played by both the other two Front Benches in bringing it about.

When I first started a debate on domestic violence in this House in 1990, I was told that it was the first time the subject had been discussed in either House of Parliament in a period of 10 years, whereas the picture has totally changed now. The prominence of the issue is much increased. For that, I give the warmest thanks to the noble and learned Lord for Part IV of the Bill and for the persistence he has shown in getting it towards the statute book. In that regard he has enjoyed the entirely involuntary assistance of the Daily Mail. It is a remarkable example of the law of unintended consequences. The practical wording of the amendments seems to me good and helpful and I am glad to see them.

Lord Mishcon: My Lords, I hope that I am not being a pedant, but when the noble and learned Lord replies perhaps he could inform the House, if there is any point in it, why there is the word "and" in the first line of the amendment, and not "or".

The Lord Chancellor: My Lords, in Clause 1 the principles are cumulative in effect. For example,


    "that the institution of marriage is to be supported"

is to be taken with the other principles. Principle (d) will be the last provision, so that principles (a), (b), (c) and (d) are all to be taken into consideration at all times.

Lord Mishcon: My Lords, I am sorry but I believe that the noble and learned Lord did not understand my point and perhaps it was unintelligible. I was looking at the first line of principle (d) in the amendment:


    "that any risk to one of the parties to a marriage,"

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I should have thought the next word should be "or",


    "to any children, of violence",

not "and".

The Lord Chancellor: My Lords, I misunderstood the noble Lord and thought he meant the "and" at the beginning of the amendment. However, the same point applies. Any risk to one of the parties to a marriage and to any children, if there is such a risk, must be minimised. In other words, all risks must be minimised. On the whole I prefer the wording of the amendment to the alternative proposed by the noble Lord. I have great authorities on grammar immediately on my left, but that is my own view. I hope that your Lordships will agree with it.


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