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Lord Habgood: My Lords, I am a little puzzled. Perhaps the noble and learned Lord the Lord Chancellor can help me. Amendment No. 7 seems clear-cut. I could not support it. Yes, I could support the spirit of it, but not the letter. It is stopping the divorce.
To my mind, the amendment does not in any way necessarily stop the divorce. It means that the children's wishes, thoughts and situation is brought into the picture for consideration. That seems to me perfectly straightforward and reasonable, if I understand it correctly. If I do so correctly understand it, I should want to support it. I should like to know whether the noble and learned Lord accepts that that is the right way to interpret the amendment,
Earl Russell: My Lords, I believe that we can stipulate that children in divorced families are usually unhappier than children with two loving parents living together. We need not go on arguing about that. But if we were to legislate for that, we might be accused of legislating in favour of Father Christmas. What we need to consider is whether children in divorced families are better or worse off than children with two unhappily married parents.
In Committee I said that there was no research available on that point. The noble Baroness, Lady Elles, rightly pulled me up and drew my attention to the Exeter Family Study, which I read with very great profit. It is an excellent piece of research and I shall rely on it in many contexts in social security debates. The sentence to which she drew my attention was technically incorrect. The study attempts the task of comparing
Perhaps I may mention one point. There is no way of eliminating the possibility that the couples who divorced were unhappier than the couples in a state of conflict who continued to live together. So the fact that their children suffered more disturbance may simply be because their parents were unhappier. It may not be the consequence of the divorce.
It remains my position that we simply do not know, as a general rule, whether children are more unhappy with unhappily married parents living together or with divorced parents. I suspect that there is no general rule on that at all. In the total absence of information on which I feel that I can rely I am not prepared to put very much weight on the point. That is why I am afraid that, grateful though I am to the noble Baroness for drawing my attention to the study, I still cannot support the amendment.
Lord Simon of Glaisdale: My Lords, I support the general thrust of these amendments. Any defects in drafting or wording can perfectly well be cleared up at Third Reading. Two of my amendments are grouped with this amendment. Amendment No. 25 falls right outside the area. It is concerned with representation of the child and it revives the suggestion that I made in Committee that the best person to represent the child's interests is the Official Solicitor. Other suggestions were made, such as court welfare officers. My amendment is better considered in this context. I say "represent the child's interests" and agree very strongly with the noble Earl, Lord Onslow, that it is far more important that the child's interests should be considered than the child's views canvassed. I believe that that answers a great many of the points made in this debate.
My other amendment is Amendment No. 8. That amendment vindicates the principle that children come first. It takes children right out of the divorce process. Their views will not be canvassed and they will not be asked because there will be no divorce when there is a young child. The noble Earl says that we lack information. So we do. But we know that children suffer from divorce. We do not know how it occurs or where it occurs particularly acutely. My own feeling is that one of the greatest sources of damage is the presentation of a surrogate parent and the indoctrination of a child. My heart sank on being told, "I have done what I can but the child has an invincible repugnance to seeing his father"--or mother. One knew that consciously or unconsciously--it was generally a little of both--the child had been influenced. So it is important to canvass the interests of the child.
The evidence is conclusive that children suffer from divorce in many ways. Twice during the course of the Bill I have quoted what was said by my noble and learned friend about that. My noble friend Lord Moran quoted some alarming figures but in fact they minimise the extent of the danger. I believe he said that over 160,000 children were involved in 1993; but that is only the children whose parents were divorced in that year.
I therefore commend to your Lordships the idea--even if we do not accept it this time we can perhaps accept it next time--that there should be no divorce where there are children of the family under the age of 16. Not only would that dramatically reduce the rate of divorce; not only would it spare thousands of children from untold misery and detriment; but it would also at a stroke deal with the problem in relation to the mounting divorce rate.
I guarantee firmly that if such a provision were introduced there would be only a small number of divorces that would require adjudication or relief. What is more, it may well be--it would probably be--in the interests of the parents themselves. The light and flame of youth would be extinguished, but the parents would be still united in a common interest in the child for whom they have--and this is enduring--made a sacrifice. The light and flame of youth may well turn into a glow of the remaining coals of their marriage.
I agree so much with what was said by the noble Lord, Lord Stoddart of Swindon, my noble friend Lord Moran and the noble Baroness, Lady Young. We turn our back on such evidence at our peril. Why should children come first? Because they are the future of our society. They should come first and the way to make them come first is to say that there shall be no divorce if the children are under 16. It is for that reason that I support the amendment of the noble Baroness, though I would prefer to go further and see my own enacted.
Lord Renton: My Lords, the difficulty with Amendment No. 8 is that, although children nearly always suffer when their parents are divorced, many children will suffer even more if their parents do not divorce.
Lord Archer of Sandwell: My Lords, what struck me in the course of the debate is the amount of common ground between all noble Lords who participated. The noble Baroness, Lady Elles, reminded us, and rightly, that where there has been an irretrievable breakdown of a marriage, we must ensure that in arranging the divorce and resolving the disputes of home and property, the court should not lose sight of the interests of the children.
The noble and learned Lord, Lord Simon, in his Amendment No. 8, proposes that if there is a child under 16 there can be no divorce at all, even if the court were to consider that it was in the interests of the child and that those interests would be better served by their being divorced. I agree with those noble Lords who said that it does not follow automatically that the interests of a child are necessarily, in all circumstances, better served by keeping the marriage in existence. Something may turn on the alternatives: whether the parents would continue to stay together; if they continue to stay together, what the situation in the home would be; what may happen if they did not stay together and entered into other relationships. Those are all matters to be considered. With the greatest respect to the noble and learned Lord, Lord Simon--again, it is an unusual situation for me to find myself differing from him--he would preclude the courts from entering into any of those inquiries in the case of a child under 16 and considering the situation at all.
The noble Baroness, Lady Elles, does not go quite so far. She would invite the court to consider whether the interests of the child would be adversely affected by a divorce. But she offered the court no discrimination if it came to the conclusion that those interests were adversely affected. If the court finds that a divorce would be contrary to the interests of a child, it would have no discretion; it would have to refuse a divorce.
I respectfully agree with those noble Lords who believe that that is putting it too high. When the court is considering an order directly affecting a child--something about wardship or care and control--then the interests of the child should be paramount. My noble friend Lord Irvine reminded me a few moments ago (in fact he told me because I do not believe I ever knew it) that the word "paramount" was judicially defined in the case of Thane in 1925. That definition was used by the noble and learned Lord the Lord Chancellor in an earlier debate. Those interests are more important than the other interests, but they are not exclusive; they do not "trump"--the court used that word--all the other interests.
Before I interrupted myself I was saying that where it is a question of an order directed specifically to a child, then it would be right to say that the interests of the child should be paramount. But where what is in question is whether there shall be a divorce, then the interests, the future and the happiness of other people are involved. The court should be empowered at least to give them consideration. It may decide that in all the circumstances the interests of the child outweigh those of the parents and that the interests of the child are that
We have all encountered children carrying a feeling of guilt because, perhaps unwittingly, they have prevented their parents from obtaining what they believe their parents desire. It would be wrong to place children in the position of being the necessary occasion of their parents' frustration without a court being able even to take that into account.
The noble Baroness rather exacerbates the problem when she says that the court must have regard to the wishes and feelings of the children. I do not dissent from that--no one in their right mind would--although at Committee stage the feeling was expressed by more than one of your Lordships that the interests of the child may be of greater importance than the expressed wishes of the child. But I would not quarrel with giving a child of suitable age the opportunity to express a view. Indeed, I think we are under an obligation as a country to do so because it is in the convention on the rights of the child, to which this country has subscribed. I have sometimes wondered how it operates always in practice. I have tried with children and grandchildren to listen to their arguments. There has usually come a time, I am bound to say, when I have lost my temper and terminated the argument. Quite how far the convention requires us to go, I am not sure; but of course we would not seek to dissuade a court from listening to the wishes of the child.
I share the anxieties of the noble Lord, Lord Habgood, in asking how the court is to go about ascertaining those wishes. I suspect that if a judge were simply to ask a child, "Do you want your parents to divorce?", none of us would have any hesitation in predicting what the answer would be. There are ways of ascertaining a child's wishes; but it is not an easy problem. I confess that I am one of those who takes the view that courts ought not to be encouraged to involve children in the emotional crises of their parents. There may be occasions when it has to be done but normally I should have thought that it could not bode well for a child to feel that he had to take sides between his parents and lose the friendship and love of one parent or the other. But what is proposed is that the wishes of the child will have to be expressed in the context of what would be virtually a veto on the divorce--I see that the noble Baroness, Lady Elles, shakes her head, but she does not give the court any discretion if it finds that the interests of the child are adversely affected. I confess to an anxiety over whether placing a child in that position would be good for the child.
I have a great deal of sympathy, as no doubt do all noble Lords, with what the noble Baroness is seeking to achieve; but I hope that she might be persuaded that the court should be given some discretion in applying that to the infinitely variable
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