§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Touhig.]12.29 am
§ Mrs. Virginia Bottomley (South-West Surrey)
I address the House on an issue that affects many families and children. Divorce is a deeply painful experience for the couple, their children, their parents, their family, their friends and the taxpayer.
The recent Economic and Social Research Council document "Family and Household Change in Britain" by Alison Wertheimer and Susan McRae says that, with more than 40 per cent. of marriages ending in divorce, the increase in marital breakdown in Britain is a major political and social concern. Britain heads the European league table. There were 145,200 divorces in the United Kingdom in 1998. It is mildly encouraging that the figure is lower than it was in 1991, but it remains an enormously important issue.
Divorce is a particularly important issue when children are involved. It scars the lives of many. Children and their families suffer alike if there are on-going resentments, arguments and distress. Through my work as the chairman of a juvenile court for many years, a researcher into child poverty and an executive member of the Children's Society, as well as my work as a Member of Parliament and a Minister, I have long witnessed first-hand the pain and suffering that divorce can cause.
I hope that the House has seen the recent document by Bryan Rodgers and Jan Pryor, "Divorce and Separation: the outcomes for children", based on an analysis of 200 research reports from the United Kingdom and overseas. The document's key argument is that it is the process rather than the event of the divorce that is so damaging. Family conflict before, during and after the process and the parental ability to recover from the distress of separation affect children's ability to adjust. Quality contact with the non-resident parent can greatly improve outcomes.
The adverse effects are well understood. They include poverty and poor housing, being poorer as adults, behavioural problems, performing less well in school, needing medical treatment, leaving home early, becoming sexually active, pregnant or a parent at an early age, depressive symptoms, high levels of smoking and drinking, and drug abuse during adolescence and adulthood.
After enormous consultation and great care, Lord Mackay of Clashfern, who was one of the great social reforming Lord Chancellors of the past century, began an ambitious process of divorce law reform. He introduced the Family Law Act 1996. His vision was that before couples take steps towards divorce, they shouldbe aware of the enormous emotional, social and economic upheaval involved in divorce and, very importantly, the services available to help and support couples.…It will communicate the facts that will help people make decisions on a basis of knowledge.
The 1996 Act is widely regarded as one of the most radical and far-reaching reforms of family justice in the past century. It became law on 4 July 1996 after a stormy passage through Parliament, not without controversy. It is one of the characteristics of the former Lord Chancellor that, in the Children Act 1989 and the Family Law Act 948 1996, he was prepared to follow through principles that would protect children and their interests and safeguard them from damage and harm.
The aim of the 1996 Act was to meet the twin objectives of saving saveable marriages and promoting a conciliatory approach to divorce if divorce is the only option. It marked a significant shift in divorce legislation, acknowledging divorce as a process rather than a concrete event. That is an important feature of the Rowntree distillation of the 200 research surveys.
A conference at Dartington last September brought together leading figures of the legal and welfare world. They debated the issues surrounding the Family Law Act 1996. Their conclusions have been summarised in an important book entitled "No Fault or Flaw: The Future of the Family Law Act", published by Jordans. I hope that the Minister and her colleagues in the Lord Chancellor's Department have studied it carefully. In the book, Lady Justice Hale elegantly identifies the key principles of the Act: the introduction of a genuinely no-fault divorce; the principle that, as far as practicable, arrangements for the future should be made before rather than after the divorce is granted; the provision of reliable, neutral information to both parties to the divorce and to their children; and the availability of good-quality mediation services.
Part I of the 1996 Act covered general principles, part III covered mediation and legal aid, and part IV covered domestic violence. They have all been implemented, but part II—which covers divorce and separation and which contains the most extensive and perhaps controversial provisions, including the provision of information—has not.
Part II contains arrangements for information meetings, on the principle that parties to a divorce should be given quality, objective and factual information at an early stage. It provided for a preliminary cooling-off period of three months after an information meeting, during which there could be no divorce proceedings. It provided for an extension to that period of six months, and required that parties' financial arrangements should be finalised in advance. Under the Act, divorce could be granted only when all the final arrangements had been finalised and were in place.
Sections 13 and 14 in part II gave the court specific power to adjourn proceedings at an interlocutory stage, to consider the opportunity of the parties to take part in mediation.
Part II carried the hopes of many for a new future for family law resolution. It would have resulted in an increase in co-working of all family law professionals, and facilitated a conciliatory approach and a greater awareness of the victims of domestic violence and of the welfare of children. In addition, it would have brought about a refocusing on saveable marriages and the exploration of those cases suitable for mediation. It would also have encouraged greater individual responsibility by the parties for the steps taken in the divorce process.
Adults needed—and still need—help rather than preaching. Children need to be considered as real people and active participants, rather than passive recipients of adults' decisions. Justice Hale has shown that there has long been consensus that those facing marital breakdown need better information. There is an even stronger belief that children need access to good-quality and 949 age-appropriate information from a neutral source. However, disagreement about the best way to achieve those objectives led the former Lord Chancellor to decide that the options should be considered and tested in a number of pilot studies.
In opposition, the Labour Party repeatedly confirmed its commitment to the Family Law Act 1996, and especially to part II. On 2 October 1998, the present Lord Chancellor reaffirmed that commitment in a speech to the closing session of the fourth European conference on family law. He said:Support for marriage and the family is at the heart of the Government's strategy for modernising Britain.He added that the key objective of the Act was toprovide for couples contemplating divorce to be encouraged to consider whether their marriage is really over and to consider whether marriage counselling might be helpful before they take the final step to divorce…The second objective underlying the…Act is that, where all attempts to save a marriage have failed and the marriage broken down irretrievably, it should be brought to an end with the minimum of distress to the parties and any children affected.He continued:Mediation is a powerful means of achieving this policy objective.He said that he waskeen to promote the use of mediation in family disputes, particularly to resolve conflicts over property, money and children, and between couples who have decided to divorce or separate. The effective use of mediation can reduce bitterness or acrimony. That is good for the individuals who are divorcing: good for their children; and good for the wider society—for the taxpayer funding those public services which have to pick up the pieces.
The Government made much of the pledge to the family unit. The document entitled "Supporting Families" also anticipated that part II of the Act would be brought into force. On 8 March 1999, the legal correspondent of The Times, Francis Gibb, said thatthe Government is to go ahead with a shake-up of the divorce laws after research has shown that compulsory information meetings for people intending to divorce could save thousands of marriages.The Lord Chancellor is expected to announce within weeks a date next year for implementing…a main aim is to encourage couples to settle disputes over children and finances amicably and outside the courts.
Only a month before the Lord Chancellor's announcement, the Lord Chancellor's advisory board on family law, set up by the previous Lord Chancellor to advise Ministers on the implementation of the 1996 Act and chaired by Sir Thomas Boyd Carpenter, appeared fully to accept that implementation of part H would go ahead.
During the year, the board considered the on-going research on pilot information meetings that was being led by Professor Janet Walker of Newcastle university. It stated that it hadcontinued to be impressed by the quality and the depth of this research.However, on 17 June last year, the Lord Chancellor declared that the Government were delaying the implementation of part H. The official reason was that time was needed for more research into information meetings. This has bemused and shocked the academic and legal worlds. The Government are not known to hesitate before rushing into legislation without any 950 preparation. The Act had received massive preparation, research and consideration. When it comes to disintegrating the United Kingdom and reforming the House of Lords, it matters not where the Government are going. When it comes to preparation in advance, think not of it but walk in and see what happens afterwards. However, on this vital issue, for some reason, with no known explanation, and misusing the research available, the Government suddenly stalled.
Describing this, David Hodson, a distinguished lawyer from my area and who is vice-chairman of the United Kingdom college of family mediators, said:It brings into mind the words said by the original patron of divorce professionals Henry VIII: "His promises, as he was, mighty; But his performance, as he is now, nothing".Since then, there has been an outcry that the research findings were misinterpreted and misused by the Lord Chancellor. The chairman of the Law Society's family law committee, Hilary Siddle, is said to have been very surprised by the Lord Chancellor's decisionwhich was clearly at least partly political.The Government's motives have been widely and seriously questioned.
In his statement in June 1999, the Lord Chancellor expressed his disappointment at the results of the pilot information meetings. I, along with many others, have studied closely the magnificent summary of the research directed by the eminent Professor Janet Walker, from the centre for family studies at the university of Newcastle, on which the Lord Chancellor claims that he based his decision. The research was overseen by an advisory body, chaired by Sir Peter Barclay.
The Lord Chancellor has appeared extraordinarily uninterested in the findings of the research carried out by Professor Walker and her team. Many are worried that this valuable research has been shelved because it does not fit in with the Lord Chancellor's view of what is comfortable. Information meetings were to be the first step for couples on the road to divorce. They were said by the Government to be the primary reason for delaying implementation. However, despite the Government's interpretation of the research, I understand from Alan Sealy, co-ordinator of the family courts consortium, with which I am associated, that the meetings were widely concluded to have been highly successful. The objectives of the pilot information meetings were to provide information about the various options and services available, and to direct attention to the issues that should be considered when contemplating steps to end the marriage.
The findings show that the attendees declared themselves to be better informed about the issues, particularly the impact of divorce on children, and about the services on offer, particularly mediation. The overwhelming majority of people valued information meetings. More than 90 per cent. attending the first 14 pilots found them useful in various ways.
This was a significant study. Some 5,522 married people attended an individual information meeting, while some 2,132 married people attended a group information meeting. Group meetings, scarcely surprisingly, were not as well received as individual meetings.
The Lord Chancellor's Department expressed disappointment in the outcomes of the findings on the use of mediation and solicitors. However, the pilots were not 951 designed to divert people into mediation and away from solicitors. The evaluation was not designed to test diversion. The goalposts were moved after the research was under way. If that is now the Lord Chancellor's intention or wish, there is no difficulty about altering the framework for information meetings.
The pilots and the research were in fact designed to examine different ways of providing information as laid down in section 8 of the 1996 Act. They were designed to find out how people responded to that information and how they used it. There was no presumption in favour of mediation, which could be expected to have a significant impact on the percentage of people using the mediation service during the pilots.
For no apparent reason, the Lord Chancellor expressed an expectation that between 40 and 60 per cent. of people might use mediation, but it is unclear where that estimate has come from. Informed researchers and mediators agree that the figure is much too high. Perhaps when the Minister responds, she could clarify where the estimate comes from. There is a general view that between 15 and 20 per cent. would be the best-case expectation of the numbers using mediation if the Act were implemented in full.
The research showed that there was some confusion about what mediation was supposed to achieve. Some found it difficult to distinguish between mediation and marriage counselling, but 57 per cent. of people said that they would consider going to mediation if they considered it appropriate in future.
The use of mediation is a key element of the 1996 Act. Over the years, I have worked closely with the Sheila Griffiths, chairman of the Surrey mediation forum that serves my constituency, and the rest of the team. I have been enormously impressed with the forum's work, but there is a degree of cynicism, and a feeling that the Government's primary interest in mediation is to reduce pressure on the legal aid fund—now the community legal services fund. As a former Minister, I have no objection to saving the taxpayer money, but most people are dissatisfied with the inadequacy of the Government's commitment to and support for mediation services. Much more could and should be done. Mediation has only recently become part of the culture of divorce.
Mediation can eliminate unnecessary and protracted legal conflict. It is in the parents' and the children's interests to avoid entering an adversarial court battle until all other options have been exhausted. However, awareness of the value of mediation and its value as a method of dispute resolution remains. We are in a transitional process in which mediation will become more familiar and commonplace. The Lord Chancellor expressed disappointment at the number of people still saying that they would be likely to consult a solicitor. That was an extraordinary remark. Information meetings rightly encourage people to consult solicitors as providers of legal advice, and mediators routinely encourage their clients to see a solicitor. The use of solicitors and mediators are not exclusive options, and consulting a solicitor is the usual and traditional way to pursue a divorce.
In short, a tremendous opportunity has been ducked and delayed. Serious concern exists about what non-implementation of part II of the Act will mean. Again I cite David Hodson, who said that there would be: no 952 shift away from fault-based divorce; no passage of time and consideration; no statutory compulsory provision of information; no provision to offer a meeting with a guidance counsellor; no provision of legal aid for marriage counselling for those eligible; no requirement that all arrangements for the future in respect of children, property and finance should be made prior to the granting of a divorce; and no power for the court to give a direction requiring each party to attend a meeting with a mediator.
It is sad that the opportunity has been missed. I hope that the Minister can convey to her Department just how appalled people in the family law community are about the irresponsible step that has been taken. The Government are only too aware of the problems of the Child Support Agency. People's refusal to co-operate over child support is closely connected to their bitterness about the divorce process. It is interesting that a former Lord Chancellor, who, like me, happens to have had the good fortune to remain married to the same person for a considerable length of time, should feel deeply and strongly about ways to make divorce more civilised. An opportunity has been delayed and avoided, and I hope that the Minister will reassure people by making it clear that a civilised, enlightened and constructive measure will be properly and responsibly implemented.
§ The Parliamentary Secretary, Lord Chancellor's Department(Jane Kennedy)
I congratulate the right hon. Member for South-West Surrey (Mrs. Bottomley) on winning an opportunity to debate divorce. Like me, she may have been a little anxious that we would be here much later in the morning, but we have now a good opportunity to debate a serious matter. I congratulate her on the way in which she presented her case. I agree with a large part of what she said, and the principles underlying the Family Law Act 1996 were, as she rightly said, supported by all parties.
I must take issue with the right hon. Lady over her interpretation of the decision taken by my noble and learned Friend the Lord Chancellor last June. However, I am grateful to her for faxing her document to my office today and for the helpful way in which she has approached the subject. I hope to reassure her on some points, but should her draw attention to two comments on information meetings in her document.
Towards the bottom of the page on which information meetings are discussed, it is recorded that during the debate it was said:The apparent simplicity of this new provision is deceptive. Most people know what information is, and most have some idea of what going to a meeting is like. Yet putting these two elements together and transforming the concept of an individual information meeting from a "good idea" into reality has not been straightforward.The document goes on to say:The Lord Chancellor's recently expressed disappointment with the research findings in respect of the pilots illustrates this problem.On rhetoric and reality, it says:The evaluation of the pilots suggests that sometimes the elements of the information meeting may clash: saving marriages is an objective distinct from securing civilised divorce.It is that part of the decision that was made last year that I want to expand on this evening.
As the right hon. Lady said, the Family Law Act 1996 requires all divorcing or separating couples to attend information meetings, the purpose of which is to inform 953 couples about the issues that they would have to face, the options open to them and the services available to help them. It will also, as the right hon. Lady rightly pointed out, make them aware of the enormity of the decision that they are contemplating.
The interim results of the research into the pilot information meetings were found to be disappointing in a range of respects. That was particularly so given the great hopes that had been attached to the provision of compulsory information meetings in part II, and the effect that it was expected to have in saving marriages or, where that was not possible, in persuading people to settle their differences through mediation rather than by resorting to lawyers and the courts.
Sadly, the numbers of people taking up the offer of a meeting with a marriage counsellor and the numbers of people who attempted mediation after attending the information meeting pilots were lower than we had expected, and that disappointment was increased by the fact that those participating in the pilot information meetings were all volunteers. Requiring unwilling conscripts to attend a compulsory meeting might perhaps produce even more disappointing results.
It is worth emphasising that it was the preliminary results that the Government found disappointing, not the research itself. We are extremely grateful to all the voluntary bodies and others who helped to provide the pilot information meetings, and to the people who volunteered to attend. We are grateful also to Professor Janet Walker and her team at Newcastle university who have been conducting the research for us. There is certainly no criticism of any of them. However, the point of piloting a new initiative such as part II is to find out whether it works as intended, and whether it achieves the results that were desired. The evidence so far is that the information meetings as piloted have not achieved what we hoped they would.
Those results are only the preliminary results of a research project that continues, however. The right hon. Lady felt that we had shelved the research, so I want to reassure her on that point. My noble and learned Friend the Lord Chancellor has not made any final decision, but has decided to wait until the final research results are available, which will be this summer, before deciding how to proceed. As he explained in a speech given to the UK Family Law Conference at the time, family law is too sensitive and important for the Government to want to rush ahead with implementing legislation on a doctrinaire or speculative basis, without the best empirical information available, coupled with informed professional advice.
The least that a responsible Government could do before making a final decision on part II is to await the final results of the very extensive piloting and research that the right hon. Lady's Government commissioned, and for which the taxpayer pays. When we have those results, the Lord Chancellor will be in a position to decide how to proceed and to consider whether, for example, further research is necessary to do justice to those difficult questions.
The focus of divorce reform should not be based on dogma concerning fault or no fault divorce. Divorce law enables people to divorce on a no-fault basis after two 954 years apart, with consent, if that is what they wish. It is true that most people who divorce prefer to do so on the basis of adultery or unreasonable behaviour, rather than waiting two years. Even so, fewer than 10 per cent. of divorce cases are fought out through the courts. The vast majority are uncontested and dealt with on paper under the special procedure. The focus should therefore not be on the dogma, but on the principles that are set out in part I of the Family Law Act.
I take the opportunity to confirm that the Government remain committed to those principles: first, the institution of marriage must be supported as the best proven method of bringing up children, within a stable family relationship, by two parents; secondly, the parties to a marriage that may have broken down are to be encouraged to take all practical steps, by marriage counselling or otherwise, to save the marriage; and thirdly, a marriage that has irretrievably broken down and is being brought to an end should be brought to an end with minimal distress to the parties and to the children affected, and with questions dealt with in a way designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances.
All the work that the Government are doing in that area is intended to support those principles.
May I reassure the right hon. Lady further? I want to identify the work that we are undertaking. It is in three main areas: the provision of information for divorcing and separating couples; increased funding for marriage and relationship support agencies; and the further development of family mediation.
I will say a little more about each of those areas in the short time that I have. The provision of information to divorcing and separating couples is obviously sound. The interim results of research into the information meeting pilots have shown that the people who attended thought that the provision of information about marriage, mediation, the divorce process, the effect of divorce on children and so on had been extremely valuable to them.
Although the meetings were not as successful as the Government wished in terms of saving saveable marriages and diverting people to mediation, there is a need to provide information to divorcing and separating couples and to the children affected. Outside part II, therefore, we are taking forward the development of a series of leaflets that were originally used in the pilots, which will be made available later this year to divorcing and separating couples through the courts and other outlets: for example, citizens advice bureaux and doctors' surgeries.
We have asked the research team to undertake some further work, following up people who attended the pilot information meetings. The purpose of that work is to tell the Government how the information influenced people's behaviour later in the process. For example, we will learn whether information about the benefits of mediation would be more useful later in the process of divorce and separation.
On saving saveable marriages, the Government support marriage politically and financially. We recognise that marriage is the surest foundation for raising children and it remains the choice of the majority of people in Britain, but we recognise also that not all children are born to parents who are married.
955 It makes sense to seek to save saveable marriages and other relationships, especially where there are children. To that end, we are significantly increasing the money that my Department spends on marriage and on relationship support in England and Wales: to £4 million in 2000–01, rising to £5 million next year.
Recently, I had the opportunity to visit the Surrey Family Mediation Service. I was impressed by the quality of its work; I commend it. We are committed to 956 supporting its development and are conscious of the expertise of people in that sector. We are listening to them carefully.
The service is one of more than 250 mediation services that have concluded contracts with the commission—
§ The motion having been made after Ten o'clock, and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at one minute to One o'clock.