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43 Clause 24, page 15, line 13, leave out from beginning to 'the' in line 17 and insert--
'(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice.
(6A) The code must require'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With that amendment, I should also like to speak to Amendments Nos. 44 to 47 inclusive.

Amendments Nos. 43 to 46 amend Clause 24 and provide a number of important safeguards and a strengthening of the provisions in relation to the provision of publicly funded mediation. In particular they stress: the voluntary nature of mediation; that where parties are influenced by fear of violence or harm, the mediator should be in a position to identify this at

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an early stage and mediation should not continue; that mediators should encourage the parties to consider whether their children should have an opportunity to express their views during mediation regarding their own wishes and feelings.

These are in addition to the requirements that mediators must have arrangements in place to ensure that the possibility of reconciliation is kept alive throughout mediation and to keep the parties informed about the availability of independent legal advice.

Amendment No. 47 provides for the removal of the presumption in favour of mediation. The Government still believe that it is vital to the successful introduction of mediation into the divorce process that parties are required to attend a meeting with a mediator before they can receive legally aided representation in order to be in a better position to make an informed choice. Amendment No. 54 provides for this. This meeting will allow the mediator to help the client decide whether the case and they are suitable for mediation. This will take into account the willingness of the parties to participate in the process by virtue of the provisions of Clause 24. It is also so that the mediator may ensure so far as possible that mediation does not take place if the parties are fearful of violence or harm. Experience indicates that where parties are offered a choice between an old established service and a new service, the old service will generally be favoured, and that is because of the view, "better the devil you know". Meetings with mediators will allow parties to make an informed decision on the basis of the facts, and in the process learn of the considerable benefits of mediation for the parties and the children.

During the Bill's earlier stages a number of your Lordships expressed concern that appropriate protection be afforded to victims of domestic violence in the mediation process. Concern was also expressed that Clause 26 would result in parties being forced into mediation. In particular I recall concerns expressed by the noble Lord, Lord Irvine of Lairg, the noble and learned Lord, Lord Archer of Sandwell, the noble Earl, Lord Russell and the noble Baroness, Lady Hamwee. I believe that the amendments address these concerns by providing the necessary protection for vulnerable parties and those for whom mediation is not suitable while also safeguarding public funds from the expense of unnecessary litigation, and demonstrating the Government's commitment to the development of mediation in family matters in this country.

Moved, That the House do agree with the Commons in their Amendment No. 43.--(The Lord Chancellor.)

Lord Irvine of Lairg: My Lords, I am grateful to the noble and learned Lord for recalling that in our consideration of the Bill in your Lordships' House I, along with other noble Lords, expressed serious concern that the effect of Clause 26 might be to force parties into mediation so that mediation would not be truly voluntary. I therefore welcome these amendments because they emphasise the voluntary nature of mediation. Thus, Amendment No. 47 substitutes a new Clause 26 with the effect of removing the former presumption in favour of mediation.

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I should make plain that my concern did not arise out of any hostility to mediation. Quite the contrary. It was born out of a concern that for mediation to be fair and to succeed it should be truly voluntary. I have no objection to Amendment No. 54 which provides that attendance at a meeting with a mediator is in effect a precondition of the grant of legally-aided representation. As the noble and learned Lord said, the parties should be free to make an informed choice between mediation and the courts; that requires such a meeting. I hope that in a large number of cases they will prefer mediation. But what is important is that where mediation has been found to be unsuitable in a particular case, the Legal Aid Board is not entitled to take account of the existence of mediation in deciding whether to grant applications for court representation.

I also welcome the amendments which are designed to ensure greater professionalisation in mediation, just as I have welcomed the amendments which we have already discussed which should lead to greater professionalism in the information meetings.

In pinning so much faith on mediation, we must appreciate that we are entering substantially uncharted seas. Amendments Nos. 43 to 46, which provide that contracts made between the Legal Aid Board with mediators must require mediators to comply with a code of practice, are particularly welcome. They enhance the quality of publicly funded mediation. For those reasons, we support the amendments.

On Question, Motion agreed to.


44 Clause 24, page 15, line 18, at end insert--
'( ) that parties participate in mediation only if willing and not influenced by fear of violence or other harm;
( ) that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;'.
45 Page 15, line 21, leave out from beginning to 'and' in line 23.
46 Page 15, line 25, leave out 'and' and insert--
'(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider--
(a) the welfare, wishes and feelings of each child; and
(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.
(6C) A contract entered into by the Board for the provision of mediation under this Part must also include'.
47 Clause 26, page 17, leave out lines 21 to 28 and insert--
'"(3F) A person shall not be granted representation for the purposes of proceedings relating to family matters, unless he has attended a meeting with a mediator--

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(a) to determine--
(i) whether mediation appears suitable to the dispute and the parties and all the circumstances, and
(ii) in particular, whether mediation could take place without either party being influenced by fear of violence or other harm; and
(b) if mediation does appear suitable, to help the person applying for representation to decide whether instead to apply for mediation.
(3G) Subsection (3F) does not apply--
(a) in relation to proceedings under--
(i) Part IV of the Family Law Act 1996;
(ii) section 37 of the Matrimonial Causes Act 1973;
(iii) Part IV or V of the Children Act 1989;
(b) in relation to proceedings of any other description that may be prescribed; or
(c) in such circumstances as may be prescribed.
(3H) So far as proceedings relate to family matters, the Board, in determining under subsection (3)(a) whether, in relation to the proceedings, it is reasonable that a person should be granted representation under this Part--
(a) must have regard to whether and to what extent recourse to mediation would be a suitable alternative to taking the proceedings; and
(b) must for that purpose have regard to the outcome of the meeting held under subsection (3F) and to any assessment made for the purposes of section 13B(3)."'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 44 to 47. I spoke to these amendments with Amendment No. 43.

Moved, That the House do agree with the Commons in their Amendments Nos. 44 to 47.--(The Lord Chancellor.)

On Question, Motion agreed to.


48 Clause 33, page 25, line 38, leave out '(e)' and insert '(d)'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48. With this amendment I should also like to speak to Amendments Nos. 49 to 52.

This group of amendments relates to Part IV of the Bill which deals with occupation of the family home and protection against domestic violence. The practical situation which Clause 38 was intended to address was the kind of case where a cohabitant without any right to occupy the home of his or her partner or former partner seeks to obtain an occupation order against the partner with the right to occupy. A graphic example of this would be where a girlfriend of a few months sought to obtain the right to occupy her boyfriend's home, over which she had no pre-existing right to occupy.

This situation is covered by Clause 33. In Clause 33(6) the court is required, in considering whether to make such an order, to consider all the circumstances, and nine specific circumstances are then mentioned. One of these--Clause 33(6)(e)is,

    "the nature of the parties' relationship",

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and it is at this point in particular that the court should be required to take into account the fact that cohabitants or former cohabitants have not seen fit to make the same degree of commitment involved in marriage. Amendments Nos. 49 and 50 seek to focus the impact of Clause 38 on this element of the court's deliberations--in other words, making clear that Clause 38 is somewhat of an elaboration on what is already provided for in Clause 33(6)(e).

The Government hope that, where an applicant who is a cohabitant or former cohabitant without pre-existing property rights seeks an occupation order against his or her partner, the courts in practice will have regard to the fact that cohabitants have not made the same commitment as the parties to a marriage as directed by Clause 38 as amended. However, the courts will also wish to distinguish between a short-lived relationship between cohabitants and a stable and long-term relationship where a couple have lived as man and wife for a number of years. These amendments are intended to clarify this by focusing the impact of Clause 38 on the court's consideration of the nature of the parties' relationship under Clause 33(6)(e). The length of time the couple lived as man and wife is a separate consideration for the courts to which they must have regard at Clause 33(6)(f).

Amendments Nos. 48 and 51 are drafting amendments.

Turning to Amendment No. 52, the proposal to grant the police powers to obtain civil remedies on behalf of those suffering under the threat of domestic violence has its origin in the Law Commission report of 1992. However, the Home Affairs Select Committee's inquiry into domestic violence in 1993 rejected the proposal, as did the Special Public Bill Committee of your Lordships' House on the Family Homes and Domestic Violence Bill.

There was, and remains, concern that the police have neither the resources nor the expertise to take on this role. Interest groups were also divided on the issue, some fearing the further disempowerment of women already trapped in situations over which they had little control.

In the light of these considerations, I decided not to include such a provision in the Bill. Whatever the pros and cons of the third party approach to tackling domestic violence, it is clear that we are not yet in a position where it would be wise to embark immediately on this course.

The Government readily accept, however, that knowledge and experience in this area is growing all the time and that, for example, police domestic violence units are now much more developed and expert in this field than they once were. At this point it would be appropriate for me to pay tribute to their efforts. This is a very important matter, and it has developed well over the years. The co-ordination of local services is also improving.

There is still some way to go, all will admit. And the Government remain of the view that there may need to be a good deal more thought, discussion and research before any rules are made under this new clause.

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However, the new clause is purely permissive and is drawn widely. For example, it does not prescribe that it is the police who shall act as the representatives; there may be others who could more appropriately do so in consultation with the police. It also makes provision in a very special and appropriate way for the piloting of any rules made. The provision enabling piloting to take place is a quite unusual but very useful one.

It may well be that a measure of agreement will emerge amongst those concerned with the prevention of domestic violence as to the need for the provision of third party action in the way envisaged by the new clause, and for suitable pilot schemes to be devised. It would not seem sensible then to have to await a further legislative opportunity in order to provide for this rule-making power. I am grateful for the suggestion of this particular clause. As I have said, it has many advantages. It came from the Opposition Front Bench in the other place. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 48.--(The Lord Chancellor.)

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