HC Deb 17 June 1996 vol 279 cc584-92

`.—(1) In any proceedings for a divorce order or a separation order, the court shall consider—

  1. (a) whether there are any children of the family to whom this section applies; and
  2. (b) where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.

(2) Where, in any case to which this section applies, it appears to the court that—

  1. (a) the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child,
  2. (b) it is not in a position to exercise the power or (as the case may be) those powers without giving further consideration to the case, and
  3. (c) there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,
it may direct that the divorce order or separation order is not to be made until the court orders otherwise.

(3) In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.

(4) In making that decision, the court shall also have particular regard, on the evidence before it, to—

  1. (a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;
  2. (b) the conduct of the parties in relation to the upbringing of the child;
  3. (c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—
    1. (i) his having regular contact with those who have parental responsibility for him and with other members of his family; and
    2. (ii) the maintenance of as good a continuing relationship with his parents as is possible; and
  4. (d) any risk to the child attributable to—
    1. (i) where the person with whom the child will reside is living or proposes to live;
    2. (ii) any person with whom that person is living or with whom he proposes to live; or
    3. (iii) any other arrangements for his care and upbringing.

(5) This section applies to—

  1. (a) any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and
  2. (b) any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.'.—[Mr. Llwyd.]

Brought up, and read the First time.

Mr. Llwyd

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Michael Morris)

With this, it will be convenient to discuss the following: Government amendment No. 22, in clause 4, page 2, line 42, at end insert `once the requirements of section 41 of the 1973 Act have been satisfied.'. Amendment (a) to the amendment, leave out `41 of the 1973 Act' and insert `(Welfare of children)'. Amendment No. 12, in clause 9, page 7, line 32, leave out from 'section' to 'must' in line 34 and insert `(Welfare of children)'. Government amendments Nos. 45 and 46.

Amendment No. 13, in schedule 1, page 42, line 6, leave out `41 of the 1973 Act' and insert `(Welfare of children)'. Amendment No. 14, in page 42, line 21, leave out `41 of the 1973 Act' and insert `(Welfare of children)'. Amendment No. 15, in page 42, line 39, leave out `41 of the 1973 Act' and insert `(Welfare of children)'. Government amendment No. 63, in page 42, line 42, at end insert `The fourth exemption—

'The fourth exemption

3A. The circumstances referred to in section 9(7)(d) are that—

  1. (a) the requirements of section 41 of the 1973 Act have been satisfied;
  2. (b) an occupation order or a non-molestation order is in force in favour of the applicant or a child of the family, made against the other party;
  3. (c) the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements;
  4. (d) the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and
  5. (e) a delay in making the order applied for under section 3—
    1. (i) would be significantly detrimental to the welfare of any child of the family; or
    2. (ii) would be seriously prejudicial to the applicant.'.

Amendment (a) to the amendment, in sub-paragraph (a), leave out

`41 of the 1973 Act'

and insert

'(Welfare of children)'.

Amendment No. 16, in schedule 8, page 72, leave out lines 27 to 46.

Amendment No. 17, in schedule 10, page 86, column 3, leave out lines 43 and 44 and insert—

'In section 41, in subsection (1) the words "divorce or" and "or a decree of judicial separation" and in subsection (2) the words "divorce or" and "or that the decree of judicial separation is not to be granted.".'.
Mr. Llwyd

The new clause sets out the principle that parents who are divorcing should have regard to the interests and views of their children. It enshrines in the Bill a right for children in such circumstances to be consulted about important arrangements that their parents seek to make for their future, which is of vital interest and great importance to children. The views and opinions that children hold should be taken into account when important decisions are made about their lives.

The new clause brings England and Wales into line with the situation pertaining in Scotland under section 6 of the Children (Scotland) Act 1995: the so-called Scottish duty. It is right to consider the interests of children and their views at a very early stage. Indeed, if parents fail to agree arrangements for children and the issue goes to court, the court must consider the children's ascertainable views. It is extremely important that the voice of the child is heard.

The provisions of the new clause were the subject of lengthy discussion in Committee. In effect, the present wording of the Bill draws together several important concepts, which were highlighted and discussed in Committee. We have all heard of the so-called amicable divorce. If such a thing exists, it is a description of the conduct of the divorcing parties towards each other. I do not believe that an amicable divorce exists in the minds of children.

Every year, tens of thousands of children and young persons go through the terrible trauma of divorce—frequently even blaming themselves for the father or mother's inability to make a go of it and stay together. It is therefore vital that children's voices are heard loudly—not in a peripheral manner or as an afterthought, but central to the process. New clause 12 is of such importance because it accords children and young people the right to be heard.

Mr. Rowe

The hon. Gentleman is making a very important point. Does he agree that, on many occasions, parents have very little idea of the children's views—partly because they have been frightened to ask and partly because the children are frightened to say? One of the important elements in what the hon. Gentleman is trying to achieve is that those views, once ascertained, should be relayed back to the parents. I do not know how the system would work, but it is important that at a round table or whatever, the children's views should be made available, not only to the court but to the parents.

Mr. Llwyd

I fully agree with the hon. Gentleman. If he looks at the new clause's wording, he will see that that important aspect is covered. There will be circumstances in which a child feels unable to express a view because he or she does not want to be seen to be siding with one parent or the other. Indeed, a child may be afraid to express a view. Under the new clause, a child would be asked to express a view and would be able to do so if he or she wanted. The new clause also includes references to age, experience and so on, because clearly very young children might not be able to express a view adequately. That is a step forward and I accept the hon. Gentleman's thoughtful intervention.

Sir Jim Lester (Broxtowe)

I support what the hon. Gentleman is seeking to achieve, especially in respect of talking to children about what they want. There seems to be a presumption in other legislation that the maternal case should always take priority. Many of us know from practical experience that it is better for children involved in divorce to have good contact with both parents, and with grandparents, uncles, aunts and the wider family. It is a tragedy that so many fathers lose contact with their children, possibly until they become old enough to want to seek out their fathers. That is one of the sad aspects of divorce and it is certainly harmful, especially to children under 16.

Mr. Llwyd

I agree and I shall discuss that in a moment. New clause 12 accords children and young people rights to be heard on important issues such as schooling, job prospects, where they will reside, with whom they will reside and so on. That provision is qualified in respect of age, experience and intelligence. It will protect children's well-being during and even before family break-up, especially in respect of their relationship with both parents, which the hon. Gentleman rightly mentioned.

Some 40 per cent. of children involved in family break-up lose touch with one parent altogether, which may involve 150,000 children a year. That is one of the most disastrous but routine consequences of divorce and family break-up. A relationship with both parents is a basic right for children. To lose a parent is to lose part of oneself.

The adversarial structure of the courts provides little or no incentive for parents to facilitate the child's relationship with the other parent. Notwithstanding the difficulty of obtaining information on judgments and the reasons for them in private proceedings under the Children Act 1989, it seems that the aim of the Act, which was to give both parents responsibility for the child, is still not generally put into practice by the courts; nor is it fully understood by the public. The public still think that making arrangements for children means deciding which of the parents will "own" the child. Hon. Members have often referred to one parent having custody—a notion that was supposed to have been abolished by the Children Act.

The latest edition of the "Procedural Handbook" to the Children Act, produced by Harris and Scanlan in 1991, states: It is generally accepted that it is in the child's interest to maintain his relationship with both parents and this will not be promoted by an order which may be a formality but which nevertheless appears to favour one parent over the other. Anything which will tend to assist the parties to keep separate the issues of being a spouse in conflict and being parents will better enable a child's relationship with his parents to flourish. The evidence overwhelmingly points to a lack of concern by the public and the courts about children's loss of parents. Residence orders are often understood as custody and may be in favour of only one parent. The other parent may be given a contact order to visit, or be visited by, the child at weekends, for example. That is not sufficient to exercise meaningful parental responsibility. The courts are often reluctant to enforce that minimal contact.

The new clause would encourage the courts and parents to take the preservation of the child's relationship with both parents much more seriously, by requiring it to be addressed explicitly, rather than implicitly, as seems to be the case at present. Subsection (4)(c)(ii) would ensure the maintenance of the child's relationship with each of its parents. That would encourage both parents and courts to give priority to preserving and enhancing that all-important relationship. The evidence strongly suggests that a continuing relationship with both parents is beneficial to the child, its self-esteem and future well-being.

Continuing relationships with both parents and frequent regular contact, as provided for in subsection (4)(c)(i), should, of itself, limit the sense of loss and damage to children after break-ups. Much else could follow—a more secure child who will achieve more, and who will be less likely to get into trouble and more likely to benefit from greater financial security. We must remember that it is the parents who are getting divorced, not the children.

Subsection (4)(a) adds an extra qualification in respect of the child's wishes and feelings, that they should be considered in the light of … the circumstances in which those wishes were expressed". There are well-known instances where unreliable confessions have been given by adults under pressure. When so much hangs on their wishes and feelings, children may come under severe pressure and may gain the impression that they must choose between two parents whom they love. About 25 per cent. of children may be under an injunction to denounce one parent. The additional qualification will allow welfare officers, mediators and the courts to take into account the known views of the parents in relation to their children's contact with the other parent, and the likelihood that they may be in a position to impose those views on the child, when considering how to interpret the child's wishes.

7.45 pm

I have argued consistently in Committee about every limb of this important new clause. It has the full support of the National Society for the Prevention of Cruelty to Children, to which I am grateful for its assistance, and the Children's Charities Consortium, which has been supportive. Finally, I thank Dr. Andrew Broadbent for his assistance.

I commend this all-important new clause to the House. Without it, the Bill will be deficient. This is a Family Law Bill, which means that it must cover both parents and children. If we do not cater for the children, who are often the victims of divorce, we fail in our duty. I urgently commend new clause 12.

Mr. Boateng

New clauses 12 and 14, with amendment No. 106, are an important package of improvement to the Bill. The Government's response to date gives one cause to celebrate because when we examined the substance of new clause 12 and new clause 14—which the Minister said during the debate on new clause 10 that he will accept—in Committee, the Government's response to them and to amendment No. 106, which deals with mediation, was less than satisfactory

. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made a considerable contribution in Committee to protecting and furthering the interests of children. I and my hon. Friends the Members for Hornsey and Wood Green (Mrs. Roche), for Barking (Ms Hodge), for Hampstead and Highgate (Ms Jackson) and my hon. Friend from Nottingham, Sherwood—

Mr. Peter Luff (Worcester)

Just Sherwood.

Mr. Boateng

That is in Nottinghamshire, is it not?

Mr. Paddy Tipping (Sherwood)

indicated assent.

Mr. Boateng

Quite so. I have not forgotten my Robin Hood and all that flows from that.

In Committee, hon. Members returned repeatedly to the interests of children. We recognised, as the Government have now recognised, the central role of children in the Bill. By the turn of the century 3.7 million children will have experienced at least one parental divorce. The impact on a child of its parents divorcing is considerable. The valuable research that has been carried out in this area highlights the need for effective multi-agency intervention to counter the negative impact of divorce on children. Perhaps in the past too little attention has been paid to supporting children whose parents have separated. All too often it is a neglected family justice matter and a neglected mental health issue. It is good to know that in the House there is at last developing a consensus on the need for intervention and the need for a legislative framework in which that can take place.

The Morton commission, a royal commission on marriage and divorce, concluded that it was right to accept that the breakdown of family relationships could often lead to emotional disturbance in children and could sometimes lead to anti-social behaviour. It concluded that it was essential that after a divorce everything possible should be done to mitigate the effects upon the children of the disruption to family life. It is only now, many years after the deliberations of that commission, that the House is turning its attention to how that might best be achieved.

The White Paper recognised that there was an issue but seemed uncertain, as does the unamended Bill, about how it might best be addressed. I well remember the response of the then Minister when this issue was raised in Committee. There was a willingness to listen but, as was often the case in Government responses at that time, the willingness to listen was not followed by a willingness to act. On the contrary—at that time, for reasons that are not entirely clear but which have become clearer as the hours, minutes and days of this busy week have passed, the Government were strangely unwilling to act to meet the concerns that were expressed in Committee.

There has been, albeit at a late stage, a recognition of the importance of the package that the hon. Member for Meirionnydd Nant Conwy, my hon. Friend the Member for Hornsey and Wood Green and I have constructed, with the active assistance of the Children's Charities Consortium. I, too, should like to associate my party with the words of appreciation from all parts of the House of that body. It has striven with great zeal and diligence to further the interests of children. That is no wonder, because as the National Society for the Prevention of Cruelty to Children study "Children Speak" stated in 1994, all too often what emerges from a study of the divorce system is a feeling by the child that, "Nobody listens to me." At least now, as a result of the House's consideration of the Bill, somebody will be obliged to listen. If there was nothing else—mercifully, much else has been gained from the process—the House could draw a certain degree of satisfaction from that in itself.

The Opposition feel that this issue needs to be kept under constant review. The Government have accepted that an advisory body should be established to advise the Lord Chancellor on these matters. The Opposition welcome the fact that the Government have taken up an idea that we put forward on Second Reading and have established such an advisory body.

Mr. Rowe

The hon. Gentleman says that this issue needs to be kept under constant review. What exactly does he mean? The arrangements that are made at the beginning of a divorce are often made in the shadow of the most extraordinary bitterness and hostility between the parents, and in those circumstances the court flounders. Later, however, when passions have cooled and other arrangements have been made by the parents, it is absolutely indispensable that the voice of the child should be heard again. Is that what the hon. Gentleman means when he speaks about matters being under constant review?

Mr. Boateng

I am happy to address that point. The constant review of which I spoke ought to be carried out to see exactly how the clauses and the regulations that are made under them work in practice in the interests of the child. One of the values of the advisory body that was established under the Children Act 1989 has been the way in which it has been able to examine the legislation in practice and to suggest practical ideas on how it might be improved and how the Government might, where necessary, legislate in future to improve and develop good practice in the light of experience. That is what I meant, and the advisory body ought to be given an important role in that area. We are establishing a welcome framework for regulations and we need to make sure that the content of the regulations is right and apt and that there is a subsequent process of review and monitoring when they are put into effect. I know that in Committee the hon. Member for Mid-Kent (Mr. Rowe) had a particular interest in the role that should be played in relation to children. I take his point entirely.

An important matter that we are not currently debating—I must take care not to stray out of order—is dealt with by amendment No. 106, which helps to assist in the development of how the interests of children should best be catered for within the context of mediation, an issue that considerably exercised the Committee. Much work remains to be done in developing mediation in this area.

Mediation has an enormously important role to play and it has enormous potential, and I want to give credit to the work that has been done. There is a need to build on that work to see how the interests of the child can best be brought to the fore and kept in the frame during the mediation process. Credit should be given to the important work done by National Family Mediation, with support from the Calouste Gulbenkian Foundation, in looking at the rapid development in thinking on the involvement of children in mediation. It looked at the issue of training, so that mediators are better equipped to deal appropriately with the interests of children during mediation. The matter requires attention, resources and a commitment from the Government.

The amendments are to be welcomed as part of the package that I outlined earlier, but it is important to state that they are only a beginning. There is still a long way to go before we can be satisfied that everything is being done that ought to be done for children who are the victims of parental separation. It must no longer be a neglected family justice issue, but one that is central to our concerns in this House and outside.

8 pm

Mr. Streeter

I am pleased to respond to the debate, and to pay tribute to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) for his sterling efforts in tabling an amendment that the Government are pleased to accept. I agree that there is no more important task than ensuring that children's interests are protected as fully as humanly possible. The debate was slightly ruined by the rather unfortunate personal attack on my immediate predecessor as Parliamentary Secretary by the hon. Member for Brent, South (Mr. Boateng). My hon. Friend the Member for Brecon and Radnor (Mr. Evans) has been tireless over the years in championing children's causes, and we should pay tribute to him.

Mr. Boateng

I would hate it to go on the record that I had made a "personal attack" on the hon. Member for Brecon and Radnor (Mr. Evans). It was not a personal attack—it was a political attack. There could not have been a more obdurate Minister in relation to the matter. Had he been prepared earlier to take a more conciliatory approach towards the concerns of my hon. Friend the Member for Hornsey and Wood Green (Mrs. Roche) and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), we would not have reached the present difficulties. It was not a personal attack, but a political attack—and a well deserved one.

Mr. Streeter

I am delighted to accept the hon. Gentleman's apology.

The amendments make clear in the Bill the links between divorce procedures and procedures under the Children Act 1989. New clause 12 also extends the list of factors currently in section 41 of the Matrimonial Causes Act 1973 that a court should take into account when deciding whether to exercise its powers under the Children Act. These now include: requirements to regard children's welfare as paramount; that the court should have regard to the wishes and feelings of the child concerned; the principle that, in addition to the child's welfare being best served by having regular contact with those with parental responsibility, there should also be regular contact with other members of the family; and the requirement for the court to have particular regard to any risk to the child that may be caused by the actual or proposed arrangements for the child's future.

I understand that the amendments have the full support of the children's organisations. They clarify the court's position and that of children in the divorce process. They provide for even greater protection of children's interests—and children are, of course, the innocent victims of divorce. I am pleased to support these worthwhile amendments.

The Government tabled amendment No. 22 simply to clarify that the requirements of section 41 of the Matrimonial Causes Act 1973—the duty of the court to consider whether there are children of the family and, if there are, the arrangements to be made for them—must have been satisfied before a separation order can be converted into a divorce order under clause 4. The amendment ensures that any children born after a separation order has been made are taken into account by the court when considering the application for a divorce order under clause 4.

Amendments Nos. 45, 46 and 63 introduce into schedule 1 a further exemption to the requirement of clause 9 that financial arrangements must be decided upon before a divorce or separation order can be granted. It will apply where there is an occupation order or a non-molestation order in force and in favour of the applicant for ancillary relief, or a child of the family, against the respondent. For this exemption to apply, the requirements of section 41 of the Matrimonial Causes Act 1973 must have been satisfied, the applicant must have tried to reach agreement relating to the parties' financial affairs but been unable to do so and be unlikely to do so in the foreseeable future, and it must be the case that delay would be significantly detrimental to the welfare of any child or seriously prejudicial to the applicant.

The Government believe that it would be wrong for a divorce to be denied on the ground that financial arrangements had not been settled when domestic violence or other harmful conduct by the respondent is, or has been, present in the family, provided that the applicant has made every effort to comply with the requirements as to the parties' financial arrangements for the future. The applicant for ancillary relief should not have to wait until the molestation causes ill health, disability or injury before he or she can apply for an exemption, as would be the case without the amendments, which I am happy to support.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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