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Earl Russell: My Lords, I shall speak to Amendment No. 15A when it comes to be called in its place. Meanwhile, I should like to respond briefly to the noble and learned Lord's comments on free votes.

I am entirely in agreement with the general framework of what he has said. My noble friend Lady Seear remarked that it was spoken like a true rebel. There is no higher praise. Like the noble and learned Lord, I cannot understand how there can be said to be such a thing as a government defeat on a free vote. We are discussing these matters in a non-party spirit. I do not believe that any party can gain credit or discredit.

It has always been my understanding that on a free vote Bill the two Houses count equal. That is the principle which this House adopted in the War Crimes Bill. The basic argument for the primacy of another place is that the Government should be able to get their business through. If the Government have agreed that there is a free vote, then we may vote freely regardless of the fact that another place may not agree.

In regard to representing the people, if one looks at the opinions of the Houses it is by no means self-evident that on a non-party issue the opinions of another place

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automatically represent the people in a way that we do not. We may vote according to our consciences and as we are, or are not, persuaded by the arguments.

Lord Simon of Glaisdale: My Lords, in my view the amendments have substantially improved the Bill. I am convinced that the provisions are now in a form that will enable the court to do justice and promote welfare generally in all the circumstances that have been envisaged. It is on that ground, rather than attaching any magic significance to a free vote in the other place, that I venture to support the Commons amendments.

7.15 p.m.

Baroness Young: My Lords, these are clearly very important amendments and I am very glad to support Amendment No. 15 which extends the period of reflection and consideration up to 18 months. That is an issue upon which I moved in this House. It is a matter of regret, and I think I wrote down my noble and learned friend's exact words when he said that the Government expressed no view in another place. It is sad that they expressed a view here. We will not debate the relative merits of free votes in another place and free votes here. That is a subject also on which I would have a great deal to say.

I am glad about the 18 months and I accept the qualifications. I am glad about the ending of the quickie divorce. I never thought that it was a good thing and I am pleased that we shall see an end of it. It is unbelievable that throughout the stages of this extraordinary Bill the quickie divorce, which came in by statutory instrument in 1977 under the Labour Government, now presumably being reversed by the Bill, could not be dealt with without all of these complicated measures.

I am glad about the extension because I have always felt that it was quite wrong that one party should be divorced against the wishes of the other at the end of a year without any reason needing to be given.

I realise that there is not a majority in this House or in another place on the issue of fault, but I believe that the institution of marriage has been weakened by removing the moral basis of it and by removing the concept of fault. It has also weakened the legal basis. That is something we shall come to regret very much in the future. If American experience is anything to go by, it will ultimately increase, and not decrease, the number of divorces. I wish to place that view on the record.

This is a Bill about which I have very grave doubts, but I think that Amendment No. 15 is an improvement. I am very glad that it came through on a free vote in the Commons and I am pleased to accept its provisions.

Lord Habgood: My Lords, perhaps I may take guidance as to whether it would be helpful for me to speak to my amendment now or wait until we reach the relevant clause.

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The Lord Chancellor: My Lords, in so far as guidance from me may be useful, there is no harm in speaking to the subject matter now. However, I have the impression that because of the form of the amendments of the noble Earl, Lord Russell, and that in the name of the noble Lord, Lord Habgood, it may be convenient to discuss the detail when I call the amendment in the form in which it appears as an amendment to the amendment. There is a grouping which makes it possible to take the amendment now, but the narrow substance of the issue may be better dealt with at that time. My noble friend is going to give us further advice.

Baroness Trumpington: My Lords, further to what my noble and learned friend said, in the chronological order only Amendment No. 3 is moved at this time. All the other amendments are open to being spoken to as they arise.

On Question, Motion agreed to.

COMMONS AMENDMENTS

4 Clause 4, page 2, line 35, after 'while' insert '--
(a)''.
5 Page 2, line 36, at end insert '; or
(b) subsection (3A) applies.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5 en bloc. I spoke to these amendments with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendments Nos. 4 and 5.--(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

6 Clause 4, page 2, line 42, at end insert 'once the requirements of section (Welfare of children) have been satisfied.'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6.

In moving this amendment I should like also to speak to Amendments Nos. 29, 34, 53, 59, 60, 61, 103 and 128. This group of amendments is concerned, first, with the links between the divorce procedures to be established under this Bill and procedures under the Children Act 1989 and, secondly, with the representation of children in family proceedings.

Section 41 of the Matrimonial Clauses Act 1973 provides a procedure which acts as a bridge between divorce proceedings and procedures under the Children Act. Your Lordships will remember that considerable reference was made to this when the Bill was before the House at an earlier stage. It provides a mechanism which enables the court to decide whether, in the light of the arrangements made or proposed, it should exercise its powers under the Children Act in order to protect a child. These amendments re-enact the substance of Section 41 of the 1973 Act as it relates to divorce and separation on the face of this Bill and extend the list of factors which a court should take into account when deciding whether the circumstances are

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such as to require it to exercise its powers under the Children Act. These now include: a requirement to regard the child's welfare as paramount; a requirement to have regard to the wishes and feelings of the child concerned in the light of his age and understanding and the circumstances in which those wishes were expressed; a requirement to have regard to the conduct of the parties in relation to the upbringing of the child; the principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by the child having regular contact with those who have parental responsibility for him and with other members of the family; and a requirement for the court to have regard to any risk to the child which may be caused by the actual or proposed arrangements for the child's future.

The main thrust of this amendment remains as it was following an amendment tabled by my noble friend Lady Elles and supported by many other noble Lords. The current amendment adds to the factors included in my noble friend's amendment, to which the court shall have particular regard on the evidence before it when making a decision as to whether the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989. The amendment also re-enacts what was Section 41 of the Matrimonial Causes Act procedure and so brings that procedure on to the face of this Bill in relation to separation and divorce cases. At the time Section 41 was amended during the Bill's passage through this House, the procedure remained part of the Matrimonial Causes Act and so was amended by paragraph 23 of Schedule 8.

In consultation with the children's organisations during the passage of this Bill in another place, it was decided that it would be helpful to have the full text of this procedure on the face of the Bill and also to enhance its provision. Essentially, however, the function of the court under this procedure remains the same as under the current law; namely, consideration of whether there are children of the family to whom the section should apply and, where there are any such children, whether it should exercise any of its powers under the Children Act 1989. The court has no jurisdiction, therefore, to make a residence or a contact order under this provision. Such orders, if they are to be made, must continue to be made under the Children Act itself. In exercising its jurisdiction under that Act, the court will apply the welfare criteria set out in Section 1(3) of that Act.

In order to clarify the status of the various factors set out in this amendment, I should point out that their purpose is to guide the court when it is deciding whether or not it should exercise its Children Act powers. These factors are not intended to change any of the provisions of the Children Act itself. In particular I would point out that the reference to conduct in subsection (4)(b) is intended to mean conduct towards the child by its parents and not conduct between the parents towards each other. I believe that there has been some misunderstanding about that.

Turning to Amendment No. 53, the Government believe that the voice of the child should be heard in proceedings regarding his or her welfare. The existing law already makes provision for the representation of

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children in a number of ways: by a panel guardian ad litem and/or a solicitor in public law proceedings under the Children Act 1989; via the report of a welfare officer, again under the Children Act 1989; through the offices of the Official Solicitor in private law proceedings in the High Court and county court; and under Section 10(8) of the Children Act 1989 a child may bring his or her own application and be represented. In addition, Commons Amendment No. 46 (to Clause 24) which we shall be discussing later would require the proposed code of practice for publicly funded mediators to require mediators to have mechanisms in place to take account of the interests and wishes of children during mediation between spouses. It is important that, in relation to a child's residence and contact, those matters are taken into account. I have no wish--and when we discussed this matter before I understood your Lordships to have no wish--to embroil children unnecessarily in conflict with their parents. However, this issue relates to the welfare of the children themselves and the arrangements being made for them.

Amendment No. 53 empowers the Lord Chancellor to make regulations across a wide range of family matters, including domestic violence cases. It will be important to ensure that any such arrangements complement existing arrangements, do not duplicate them and so far as practicable, do not place children at risk or exacerbate conflict between spouses by unnecessarily dragging children into disputes between their parents. That will be a difficult and sensitive task and I shall wish to consult widely with both the children's organisations and with those who currently represent the interests of children in court proceedings before attempting to devise an effective system and to make any regulations under this provision.

As I said, we have time to do that, particularly in relation to the divorce and mediation part of this Bill. I shall, therefore, wish to consult widely on that aspect.


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