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Noble Lords: Hear, hear!

On Question, Motion agreed to.

27 Jun 1996 : Column 1080

COMMONS AMENDMENT

7 Clause 4, page 2, line 42, at end insert--
'(3A) Subject to subsection (3B), this subsection applies if--
(a) there is a child of the family who is under the age of sixteen when the application under this section is made; or
(b) the application under this section is made by one party and the other party applies to the court, before the end of such period as may be prescribed by rules of court, for time for further reflection.
(3B) Subsection (3A)--
(a) does not apply if, at the time when the application under this section is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party;
(b) does not apply if the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family;
(c) ceases to apply--
(i) at the end of the period of six months beginning with the end of the period of reflection and consideration by reference to which the separation order was made; or
(ii) if earlier, on there ceasing to be any children of the family to whom subsection (3A)(a) applied.'.

The Lord Chancellor: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 7. I spoke to this amendment with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 7.--(The Lord Chancellor.)

AMENDMENT TO COMMONS AMENDMENT No. 7

7A Clause 4, in subsection (3A)(a), after ("made") insert ("and the court considers, on the evidence before it, that it will be in the best interests of the child for this subsection to apply").

Lord Habgood: My Lords, I beg to move Amendment No. 7A as an amendment to Commons Amendment No. 7.

Amendment No. 7A is consequential upon my other amendment, Amendment No. 15C. I should like to speak to both, with the emphasis on Amendment No. 15C. The purpose of Amendment No. 15C is to modify the impact of the Commons amendment, which extends the period of reflection by six months when there are children under the age of 16 in the family, by making the extension discretionary rather than mandatory. Amendment No. 7A simply brings the provision for separation into line with this. It provides that a separation order may not automatically be converted into a divorce order when one or both of the parties apply to the court for extension of the period of reflection on the grounds that there are children under 16. The main point of both amendments is that any extension of the period of reflection relating to children should not be automatic but should be considered by the courts when there appears to be a need for it.

The noble Lord, Lord Renton, has already said that Amendment No. 34 makes my amendments redundant. I do not believe that this is so. Amendment No. 34

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relates to Clause 10 which deals with exceptional circumstances, to which the noble and learned Lord on the Woolsack has already referred, whereas my amendments refer to what may be called the ordinary process under Clause 11. These amendments in no way undermine the main provisions of the Bill as it has now been returned to us. They would not weaken the power to extend the process to 18 months when one party did not consent to the divorce. When there is a clearly established need to devote more time to the process in the interests of the children, it is right that that time should be given.

My amendments make provision for that. But they place the onus on the court to impose this rather than dispense with it, as the Bill now stands. Dispensation is possible only when there is an occupation or non-molestation order in force, which may be a very tight restriction, or when the court decides that there may be significant detriment to the interests of the children. Much will depend on how the courts use the power to dispense.

I acknowledge that the difference which my amendments make may be small in practice if the courts adopt a proactive role. Whether the courts will adopt that role is another matter; whether they will be able to do so in reasonable time is another matter still. Whether they will become clogged up with more business than they can manage by having the power of dispensation is a very serious consideration. I accept that this may work in different ways, some of which may be significant and some not. Nevertheless, I believe that there are important principles at stake here which this House ought to have another chance to consider. I am encouraged in this by a speech by Mr. Peter Bottomley in another place. In the light of what has already been said about the debate in the other place, I believe it is worth reading part of his speech. Referring to this particular argument about children, he said:


    "That argument did not take place in Committee of the whole House, but I do not think that, after 9 p.m., after a fairly full day on Report, it is right to think that, in two or three minutes, probably under pressure from the business managers even though there might be a free vote, we can rehearse all the arguments.


    I simply ask that we put this idea to the other place when it considers the amendment we have made".--[Official Report, Commons, 17/6/96; col. 612.]

Therefore, the question to be asked is whether, if these amendments are passed, this House will be going against something which the other place has debated thoroughly. It certainly thoroughly debated the question of when one party did not consent to the divorce. I have no objection to the extension of the period of reflection to 18 months in that case. But I submit that it did not adequately discuss the particular issue which arises when there are children.

I recognise that politically there may be a risk in taking this Bill back to another place with an amendment. But, given Mr. Bottomley's invitation, I do not believe that this house can be accused of seeking, as it were, to reverse a carefully considered decision against that other place. The motives for making this change and adding an extra six months when there are children in the family are entirely admirable. But all

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noble Lords recognised in the lengthy debate on this point that divorce was bad for children, that it should be discouraged whenever possible and that children should be given every possible protection. It does not follow logically from such admirable intentions that automatic extension of the divorce process when there are children in the family is good for them. The argument is a non sequitur.

As my amendment recognises, extension of the period may be necessary; in other cases it may not. As we were reminded by the noble and learned Lord on the Woolsack in our debate, the main voluntary agencies concerned with the welfare of children urged against an automatic extension. I have a list of 18 such agencies. That list includes all of the most famous organisations which deal with children. They support these amendments and have urged me to propose them. We also have to consider Section 1(2) of the Children Act, which states:


    "In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child".

Therefore, my first reason for moving these amendments is that the automatic six-month extension confuses proper concern for the welfare of children with what in many cases may turn out to be a largely symbolic and possibly harmful gesture in lengthening the process. My second reason follows closely on the first. By making the presence of children in a family the basis of automatic extension the Bill will place them at the focus of the divorce process in a manner which may lead to subsequent recrimination. "But for you", says an aggrieved parent, "all this could have been settled months ago". This is not as unlikely a scenario as one may think. We should not underestimate the potential for divorce to create feelings of guilt, not least in the children of the marriage themselves.

The Bill is deeply concerned with the well being of children, but I believe that it would be wise to place the emphasis on extending the time for making a settlement on their behalf as and when it is needed rather than on making some children feel unnecessarily that they are a further complication in what otherwise might have been a straightforward process.

My third and final reason for wanting to see these clauses amended is that, as they stand, they subtly change the public perception of a marriage by drawing a legal distinction between a marriage with children and a marriage without children. Of course, having children brings additional responsibilities, but those are the responsibilities within the state of marriage--a state which I believe should carry the same implications for everyone. It is a state which is based on mutual consent. It is taken on for life, whether or not there are children, and it is a serious business to break it.

If we create a category difference, implying that it is, in legal terms, a more serious business to break a marriage with children--I am not saying that it is not more serious emotionally, but I am saying that in legal terms it is a more serious business to break a marriage with children--then I believe we have taken a step

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towards a different concept of marriage--a more utilitarian one in which the focus is not on the state of marriage itself, but on estimates of possible harm.

It is because I believe deeply in the holy estate of matrimony that I want to preserve the law whereby all marriages are legally equivalent, and let the issue of possible harm be treated as a separate matter for decision by the courts. I hope that latter point carries some resonances with Members of your Lordships' House so that, even if in the end we decide this matter pragmatically, it remains clear that we want to safeguard marriage as it has been traditionally understood. Although my amendments may seem to lower the hurdles on the road to divorce, I believe that they strengthen our understanding of marriage as well as safeguarding the interests of children. I beg to move.

Moved, That Amendment No. 7A, as an amendment to Commons Amendment No. 7, be agreed to.--(Lord Habgood.)


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