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Lord Harmsworth: My Lords, my name is down to Amendments Nos. 7A and 15C. As the noble Lord, Lord Habgood, said, Amendment No. 15C is a substantive amendment and Amendment No. 7A is a consequential one. I speak to these amendments with a measure of humility because I did not speak at earlier stages of the Bill. I know that the subject matter of the Bill is deeply felt, and quite rightly so, by your Lordships. All the more so perhaps because we are considering amendments from another place. We have already heard some of the constitutional points that we should be bearing in mind. I hope that my noble friend Lord Renton will contribute further points if he has any to make.

Although the amendments are fundamental, in effect they are gentle. What is important is that they strengthen the Bill--one of the major roles of your Lordships' House and one for which it is rightly famous.

The noble Lord, Lord Habgood, said that the amendments in no way undermine the Bill's main provisions, and will not weaken the power to extend to 18 months the period for reflection and consideration.

I am certain that if the Bill becomes law, as I hope it will, it will not be long before all possible routes to short-cut the system will be tested. If there is a short cut, before long it will be well-trodden.

As drafted, there are two categories of marriage: couples with no children under 16, and couples with children under 16. One thing I do not like about it is the automaticity of the extra six months that is triggered by the fact that a child under 16 is involved. That presents scope for harm to the children. The two amendments neatly and easily remove that danger. I do not like the two-tier system. The provisions are unnecessary in so far as there are many safeguards already built in for the protection of the children.

My fear is that the Bill, as currently drafted, will result in couples wanting a quicker divorce, using the children to achieve their end. That is something that your Lordships and Members of another place have, throughout the Bill, wished to avoid.

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Parents have a card to play: the significant detriment to the child's welfare. The children would, as the noble Lord, Lord Habgood, said, become the focus of litigation. That is an avoidable danger. The faster and more flexible resolution of the situation which the amendments provide will bring the Bill into line with the central tenets of the Children Act and with Clause 1(c)(ii) in which there is the positive requirement that


    "a marriage which has irretrievably broken down and is being brought to an end should be brought to an end ... with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances".

That is a positive approach to the problem.

I am not a lawyer, but I suspect that the amendments make the work of the courts easier. The noble and learned Lord, Lord Simon of Glaisdale, has already said words to that effect. The amendments would clarify and strengthen their position.

On the constitutional points, the noble Lord, Lord Habgood, said that my honourable friend Mr. Bottomley in another place has asked Members of this House to move the amendments. He pointed out the lateness of the hour at which they were considered, and the circumstances.

I support the amendments. They are innocuous in so far as they do not change anything fundamentally but improve and clarify the Bill. I hope that noble Lords will support the amendments.

Earl Russell: My Lords, I, too, support the amendments to which I have put my name. When the Bill was last before us, we had lengthy arguments about whether it was in the best interests of children for the parents to stay together for the sake of the children or to release the children from a marriage which was on the rocks. The noble and learned Lord, Lord Simon of Glaisdale, has just given your Lordships an echo of those arguments. I shall resist the temptation to respond.

The noble Lord, Lord Habgood, has brought to this--I would hesitate to describe an amendment concerned with the welfare of children as a judgment of Solomon--at least a judgment of great wisdom. The noble Lord said that one case is not exactly like another, and for that reason the decision as to whether it is in the interests of the child is best taken by the court. I agree with him. I am delighted that he put down the amendment, and I warmly support it.

Lord Irvine of Lairg: My Lords, I can see the point of the amendment tabled by the noble and right reverend Lord, Lord Habgood. However, I am not persuaded that the point is important enough in practice to differ from the Commons. I am not persuaded for the reasons which he acknowledged in moving the amendments most persuasively. I do not believe that in practice it will make much difference if the court has to decide whether it is in the best interests of the children for the 12 months to be extended to 18, or for the court to have to decide whether to abbreviate the 18 months to 12, if satisfied that the making of the divorce would be significantly detrimental to any child of the family. I am

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not satisfied that in practice there will be any material difference between the operation of the two approaches and therefore I am not persuaded that we should differ from the Commons in line with the noble and right reverend Lord's two amendments.

Finally, I wish to comment on the noble Lord's two tier marriage point. My view is that a year for reflection and consideration is adequate both where there are children and where there are not. However, another view has prevailed in the other place and it must be accepted that when contemplating breaking a marriage there is more to think about when there are children than when there are not. I find the two tier marriage point a little too abstract and I do not support the amendments.

Earl Russell: My Lords, before the noble Lord sits down, do I understand that in putting the argument that this is not important enough to persist with he attempts to impale the House upon a fork? Either an amendment from the other place is not important enough to be worth changing or it is too important to take the risk. Would he agree that it is not in the interests of this House to allow itself to be impaled upon that fork?

Lord Irvine of Lairg: My Lords, I do not recognise the fork. I simply see no difference in substance between the two approaches and therefore I oppose making a change which I regard as unnecessary.

Baroness Young: My Lords, I hope very much that the House will not agree with the amendment tabled by the noble and right reverend Lord, Lord Habgood. I do not accept for one moment his argument about two tier marriages. The view that I and a great many of my colleagues have taken consistently on this Bill is the need to buttress marriage. I should have preferred to have a two year period for reflection. Under the 1969 Act, if one party did not consent the period was up to five years.

However, I accepted that in life one must consider all the arguments and must frequently compromise. I accepted that in the case of a couple who have no children and both agree to the divorce one year is long enough. That is not in any way to undervalue marriage. A divorce is a tragedy in any event. In the case where there are children I wish to see the period extended to 18 months and I completely accept the qualifications to that which were made in another place on a free vote and which I am glad to see.

As I read the amendments tabled by the noble and right reverend Lord he is saying that in the Commons amendment the period is kept to 12 months where the court believes that it would be significantly detrimental for the period to be longer. Commons Amendment No. 7 makes consequential amendments to the arrangements for the conversion of a separation order into a divorce order. It has been agreed to extend the period by another six months if there is a child of the family under the age of 16 but the noble and right reverend Lord's Amendments Nos. 7A and 15C tack on the phrase:


    "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".

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It seems to me that the amendments would require the party who objects to the divorce to prove that a six months' extension is in the best interests of the children. That would put children at the very centre of the dispute as to whether the period should be 18 months or one year. I should have thought that that was not in the best interests of children or of achieving the least acrimonious settlement following the divorce. I do not follow the advantages of the amendment and I hope that it will not be agreed to.

8.15 p.m.

Lord Renton: My Lords, perhaps I should try to reassure the noble and right reverend Lord, Lord Habgood, about the effect of Clause 4 upon the two amendments. The provision in Amendment No.6,


    "once the requirements of section (Welfare of children) have been satisfied",

invokes Amendment No. 34. We must bear in mind the opening words of that amendment, which are:


    "In any proceedings for a divorce order or a separation order, the court shall consider",

and there appears a list.

As the issue has been brought into Clause 4 I do not see how the court could fail to consider the matters under Amendment No. 34, which are set out and which invoke the Children Act 1989, the opening words of which provide that when deciding any case under this Act the welfare of the children shall be paramount.


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