§ 4.45 p.m.
§ VISCOUNT ST. DAVIDS rose to move to resolve, That this House believes that the proper protection of children of the parties in divorce cases requires that the recommendations of the Denning Committee be followed more closely. The noble Viscount said: My Lords, Parliament is a very powerful body, and in the past it has had occasion to turn its attention to the subject of divorce. If the law on divorce as it now stands is to be made wholly satisfactory there is still much to be done—and much to be undone. As it now stands, any person can go through the divorce courts and the registry office time and time again if he or she wishes. The only limit to the number of times that that can occur is the speed at which the legal machine works. People can go in for as many attempts at happy marriage as they think fit, but whatever Parliament may do, and however clever the legal advisers of Parliament may be, there is no earthly way by which a child may be given a second childhood if its first has been spoilt. It is therefore plain for all to see that in 337 any divorce cases the matter which must be looked into before any other is the protection for the child or children of the marriage.
§ If in the ordinary courts of the land a man has an interest in any matter, however small, that interest can be represented in the court, the man can have his case stated, and have it given the attention which it may deserve. And with children, in most of the courts— especially, I believe, in the Chancery Court—it is impossible for a case to proceed without the interests of the children being represented. Those are cases in which property is concerned. But far more important than any property which any child could possibly own is the happiness that that child derives from united parents and a happy home. The best thing that can happen for any child is for its parents to throw aside their divorce proceedings and come together and rebuild the home they have broken. Any other measure whatever which can be devised must be only a second best to that. However, even when the home is broken up, certain things can still be done to help the child from losing that happy childhood which is its right, and to prevent it from becoming one of those miserable problem cases which are so well known in our juvenile courts and to our schoolmasters and others.
§ I am not a lawyer; I am a mere member of the public. I feel that perhaps for that reason I am a better person than the lawyers to move a Motion of this sort, because I believe that lawyers should say what the law is and that the public should say what the law ought to be. I am not a technician enough to say what further protection can be given to children in divorce cases, but it seemed to me that the Denning Committee's proposal, which advised that an officer of the court should step in and protect the children when their parents were fighting each other in the divorce court, was a sound and reasonable one. I should not like to say that such an officer is perpetually necessary, and essential in every case, because undoubtedly there are such things as clear cases where our Judges, with their great experience of the characters of the people who appear before them, are able to decide for themselves what should be done to help the child in this dreadful situation.
338§ But the fact remains that the court is not omniscient, and the whole point of having present a representative of the child is that he may bring before the court evidence which would not be brought by either of the two parents who are busy fighting each other. In what proportion of cases such an officer of the court may be needed I do not know, but I do not feel that we can yet be satisfied that the child is getting the legal protection that it should have in these cases. Of course, the recent appointment by the Lord Chancellor of a special officer is a good start in this matter, but may I beg the noble and learned Viscount to consider the appointment of this officer as a mere start in progressing along the road which the Denning Committee pointed out? Could he remember that this child in the case, always in these divorce cases the innocent party, and often the only innocent party, is the citizen of the future, and that the child's right to be represented in these cases is far more important than that of its parents?
§ I know that to go further along this road may be to increase the expense of divorce. If expense is the hurdle that has to be jumped, if we really must haggle about cost, it would be better to have the expense of having the child represented rather than that of having the parents represented. But I do not believe anybody can be so unfeeling as to say that any child's future should even run the risk of being prejudiced on account of expense. We must work slowly, of course, because this is a mailer where we are treading new ground. No doubt the courts are getting experience with this new officer, and we must work towards the day when every child whose case may need investigation is provided with such assistance. It is for that reason that I have brought forward this Motion to-day. I beg to move.
§ Moved to resolve. That this House believes that the proper protection of children of the parties in divorce cases requires that the recommendations of the Denning Committee be followed more closely.—(Viscount St. Davids.)
§ 4.56 p.m.
§ LORD MERRIMANMy Lords, I welcome the opportunity afforded by this Motion of giving your Lordships a little information about the experiment to which the noble Viscount has just referred and which has been in existence 339 now for two terms. The Lord Chancellor has arranged that a whole-time officer shall be available to His Majesty's Judges dealing with this difficult question of custody. Admittedly, the plan is experimental. It is in its initial stage, but I wish to say at once, before I speak about it in greater detail, that I am wholeheartedly in favour of it, and I believe it will work well.
Let it not be supposed that in the past Judges have never asked for independent reports to help them in these custody cases. We have. But the great advantage of this system is that first we have a proper officer to whom we can look, and, secondly, if we find it necessary to call for his assistance, the expense is borne by the State and not, as formerly, added to the costs of the individual litigant. I know the noble Viscount elicited certain figures the other day in answer to a Question. It is a small beginning, but this is not a matter to be tested merely by figures. I have recently had the advantage of a long talk with this officer, and I should like to assure your Lordships of this, because I think it is important in view of something that the noble Viscount said. I asked him particularly whether he considered that he had been in any way ignored, whether advantage had not been taken of his services, and so forth. The officer assured me that his feelings were exactly the contrary and that he has had nothing but sympathy and help from the Judges and from all the officers of the court. He himself is anxious to proceed slowly and to build on sure foundations. For my part, I am certain that he is right in taking that view.
As the noble Viscount indicated, we are not here concerned with the problem of providing ideal homes for these children; we are dealing with the dreadful problem of broken marriages and the effect which, as every divorce Judge and every school-master knows, is felt by the children. They are the victims. Our task is to make the best of a bad job, and I am afraid it cannot be put any higher than that. Bearing that in mind, in the first instance I will deal with what I think was the main point which the noble Viscount wanted to place before the House—namely, the suggestion that there is some virtue in the separate representation of children. Like all your 340 Lordships, I have the greatest admiration for the thoroughness with which the Denning Committee did their work. Unfortunately, I regret to say that in this particular they have led to a certain amount of misapprehension. I am not going to read it, but in the passage which I think has misled the noble Viscount, the Committee speak as if, when the custody of a child comes before a Chancery Judge, the child is separately represented, and with that is contrasted the utterly inefficient machinery of the Divorce Court.
As your Lordships know perfectly well, the Chancery procedure originated with questions purely of property, and for such questions it is quite right that the children should be represented, because their interests are directly affected; they are direct parties to the suit. We have similar provisions when any question of property is in issue in connection with a divorce suit. Only to-day I fortified myself by inquiring from two noble and learned Lords with whom I happened to be sitting in another capacity, who have spent their whole lifetime in the Chancery Division, and both of whom have been Chancery Judges. They tell me that when the only question is one of custody, it is the rarest possible thing that the child is separately represented. One of my noble friends said this—I will quote his words, although I will not mention his name: "In six years as a Chancery Judge, I cannot remember a single instance when it happened." Of course, the same thing is true of the magistrates' courts. They deal with thousands of questions of custody of just as great importance as those with which we deal in the Divorce Court, but the child is never separately represented there.
However, let me make plain that there are ways in which we can ensure that the child is separately represented if it is necessary. It is precisely in this class of case that the officer who has been attached to us will be most useful. I want to make it plain that under our existing machinery, whether or not either spouse has applied for custody, it is open to any legal guardian of the children and to any person, without restriction of any kind, who can obtain leave to intervene in the suit, to apply for directions as to the custody, maintenance and welfare of the children. We have all that machinery if the occasion arises upon which to use it. 341 Secondly, let me point out that though there be a divorce suit, if there is no application for custody in the suit there is nothing to prevent any interested party from going before the magistrates, or for that matter before the Chancery Court, on a guardianship summons, when the interests of a child can be protected.
That is all I want to say upon that subject, but I really view with some apprehension the appalling increase in costs if, in the supposed attempt to follow the non-existent example of the Chancery Division, we were to insist on separate representation in every case where infant children are involved in a divorce suit. May I add that in those circumstances we could not stop at the children generically? Sometimes the interests of one child may be different from those of another, or the interests of the boy be different from those of the girl. It would follow logically that children who had separate considerations to be applied to them should be separately represented. Quite frankly, I think it is an utterly impracticable proposition.
Now I want to go to the next point which the noble Viscount mentioned— namely, the recommendation of the Denning Committee that there should be a body of welfare officers who had the right, so to speak, to intrude themselves into a divorce suit, examine the papers and take independent action. I am not going to develop that point at length. It was discussed in great detail shortly after the publication of the Report. I read the debate again last night. I took no part in it, but I heard every word, and I am bound to say that that particular proposal found very little favour indeed in your Lordships' House. It was rightly pointed out that whereas the Denning Committee had rejected, because of a certain element of compulsion which was found in it, a suggestion which had been put forward by the whole body of divorce Judges, this particular proposal which they themselves advocated suffered in even greater degree from the same defect.
I implore your Lordships to rely on the Judges to employ this officer when the circumstances so demand; but I deprecate the suggestion that merely because parents have been divorced they have, as it were, disentitled themselves to decide anything useful about the future of the children. Nobody loathes more than I do the type of case to which I will refer 342 more particularly in a moment, where the parents think of nothing but their own bitter squabbles and ignore the welfare of the children; but, I am thankful to say—and I am sure that every Judge who handles these cases regularly would agree with me—that in the vast majority of cases the parents in these unhappy circumstances really try to come to some agreement between themselves in the best interests of the children. If one is satisfied that that is whit they have been doing, I think it is a very big thing for any court to arrogate to itself the right to impose some solution of its own. If the parents are not doing their duty, or are proved to be unsatisfactory in some way or other, certainly in those circumstances let the court intervene and take the law into its own hands. But in 99 cases out of 100, when the parents with their advisers have gone into the question of what is to be done with the children, I think they may usually be taken to have arrived at the best practicable solution. Of course, there would always be great difficulty, even if you could come to some other decision, in enforcing any other point of view against the united will of the two parents themselves.
I wish to say only one other thing about another recommendation, which was not mentioned by the noble Viscount but which is to be found in the Denning Report. It is the suggestion that the Judge who actually hears the case should himself, and at the hearing, decide the question of custody. That really—things-being as they are—is a sheer impossibility. It was all very well in the days when the Judges of the Division dealt with the whole of the London work, defended and undefended cases alike, and were able to retain to themselves any case with which they had dealt. But, as your Lordships have heard this afternoon in the course of another debate, the vast bulk of the undefended work is dealt with now by county court judges, who come and go. It is their task, primarily, to dispose of the swollen lists of undefended cases. If they are to break off and hear contested issues of custody when they are sitting, the lists will get into a state of hopeless chaos in a very short time. If they are to retain the cases to themselves they will not have the machinery to deal with them. As I say, the judges come and go; they sit for perhaps a fortnight at a time, and they 343 may not sit again for many months. The best that can be done is to ensure that in Chambers the Judge to whom the case is referred keeps control of it. And we have machinery to enable that to be done.
Just a word about the real ambit of usefulness of this new officer of ours. I agree with him in putting first and foremost the class of cases to which I have already alluded. I agree wholeheartedly also with something which appears in the Denning Report about masses of affidavits all contradicting each other, which roll in, to be followed by fresh masses of affidavits contradicting them. Often they are all utterly useless. Many a time I have, metaphorically speaking, thrown them at the heads of the people who put them before me, or into the judicial wastepaper basket, and have sent for an independent report by the local parson or the probation officer, or whoever it may be. This paper-battle occurs most often in the class of case when the spouses are so embittered that they allow the welfare of the children to be submerged in the desire to wound each other. It is in this class of case above all that we can with advantage call on this officer to make independent investigation for us. Let me say, in passing, that I am very glad to know from him that, although his jurisdiction is limited, so far as we are concerned, to cases which are heard in London, he can follow a case into the country. Manifestly, as he put it, you cannot present a balanced picture in your report to the Judge unless the same investigating officer sees both spouses. It is no use one man seeing a wife in London and another man seeing a husband in the country. But the officer can follow a case himself or, if he thinks fit, can hand the whole thing over to his opposite number in some provincial town and get a report from him. And, if it is necessary, that officer can come up to London to talk to the Judge. That, in my opinion, is the foremost class of cases in which this officer can be most useful.
The other one—this is not intended to be an exhaustive list—is the class of case in which it becomes necessary at a later stage to change the custody, about the question of which there cannot have been any doubt in the first instance. Let me give the simplest possible illustration, so that your Lordships may understand what 344 I mean. There may be a wife who has committed adultery, and who has a young family. She is living with the co-respondent, and, possibly, is unable to marry him because he has not been divorced. It would be cruel to take children of tender age from her, and they are left with her. But there may come a time later on when the same régime is prevailing, but with perhaps an illegitimate family added. Then it may be a question whether adolescent girls should continue to live in that atmosphere. One of the most difficult classes of case to decide is that in which you have to consider changing an order for custody which was right in the first instance, selecting the right moment at which to change it, if you are going to change it at all. I have put that merely as another illustration of the sort of circumstances in which this officer can be of the greatest possible help to the Judges. Let me say that I wish the experiment well, and I shall do everything I possibly can to encourage it. I know that in saying what I do I am speaking for the rest of the Judges of my Division.
§ 5.17 p.m.
§ VISCOUNT SIMONMy Lords, I have taken up a considerable amount of the time of the House already this afternoon, but I should like, if I may, to have just a few minutes in which to say something on this matter. It is not that I claim to be an expert authority on the machinery of the Divorce Court. I am not. My practice never led me in that direction. But this question is one of much importance and, since hearing the noble Viscount, Lord St. Davids, raise the point, I feel that I can very readily share the motive which inspires him and the sympathy which he feels. I am also glad that he has raised the question, because we have had a most interesting and detailed explanation from the noble Lord who has just spoken. No one else can speak with so much authority as he does upon these matters, and I should think that the cases which he has put forward go a long way to show what is being done.
Perhaps I may say that, notwithstanding the Denning Report, I myself should certainly have supposed it was a mistake to treat every single case in which children are involved in the Divorce Court as a case in which they should be separately represented. There must be 345 a great many cases in which that would be wholly redundant, expensive and wasteful of time. On the other hand, I should point out that more and more in Parliament we are becoming sensitive to the fact that in many classes of dispute it is the interests of the child that come absolutely first; far in front of those of anyone else. I give an example. As your Lordships may remember, I have taken a great deal of interest in the adoption legislation. One of the first principles of the adoption legislation is that, apart altogether from the claims of the real parent or the proposed adopter or anyone else, it is the interests of the child that have to be looked after, and the magistrates, rightly, regard that as the first of their duties. They cannot do it by appointing a counsel to represent the children, but they certainly regard it as an essential part of their jurisdiction.
Again, with regard to the answer made on the position of the Chancery Court about children, I did not know it went quite so far as my noble and learned friend has said, but of course he knows. I remember the opening chapters of Dickens' Bleak House, in which the two children who are Wards in Chancery come before the Lord Chancellor—of course, a most benevolent gentleman, a predecessor of the present Lord Chancellor and myself, who talks in a most friendly way with the children about what shall be done about them, where they are going to live and that sort of thing. I had understood that that arises also in other cases.
To my mind, the value of this short debate is that the noble Viscount, Lord St. Davids, has pointed to what is a very true proposition—namely, that in exercising divorce jurisdiction we must be sure that the interests of the children are regarded as the central feature. I should have thought it was by no means always true that, because the two parties in a divorce suit had come to an agreement about who should have custody of the children, it followed as a matter of course that that was the right decision. I should have thought that in cases where "bad hats" made the destiny of the children one of the counters in a bargain, that was not necessarily in the interests of the children. But the matter is being looked into by a procedure which has been explained to us. I warmly agree 346 with my noble and learned friend Lord Merriman, that we must begin slowly and experimentally. I wonder whether a single officer is enough for the purpose. Experience will show. I am a little bothered by a matter which is purely technical. I do not understand how the investigations of the officer and his communication to the divorce Judge become evidence in what is a litigation between two parties who may have different views about what should happen to the children. I presume that the officer will make a report in writing, and that some arrangement will be made for the parties to see the report if they desire.
§ LORD MERRIMANThis matter is being worked out. Roughly speaking, the proposal is this: the report is in writing to the Judge, the officer attends at the hearing of the adjourned summons; the parties or their representatives are there, and in some form or another, if it is desired, they can put questions upon the report, the details of which have been communicated to them.
§ VISCOUNT SIMONI am not raising any technical point, but I know that in a magistrate's court, when a probation officer has been asked to inquire into home conditions and ultimately tells the magistrate what he has found out. the probation officer is in effect a witness and can be put on oath and cross-examined— but after all that is a technical point. I think this has been a useful discussion. I should imagine that the noble Viscount. Lord St. Davids, will feel that the explanation given is encouraging, and that it is better for us to go on steadily exploring this matter, finding out the best way in which the result that we all desire can be most effectively secured.
§ 5.25 p.m.
THE LORD BISHOP OF DERBYMy Lords, I do not propose to detain your Lordships for any length of time, but this is a matter touching intimately the welfare of human beings, with regard to which it is desirable that something should be said from these benches. I regret that my episcopal colleagues have been collectively occupied elsewhere, and are unavoidably absent. That is the reason why in a matter of this kind I happen to be the sole representative of the Episcopal Bench. I had hoped to be able to associate myself entirely with 347 the Motion which the noble Viscount has moved, but in the light of what has been said by the noble and learned Lord, Lord Merriman, with his profound and farreaching knowledge of these matters, I think that all that can be done is to associate oneself with the general spirit of the Motion, in so far as it is concerned with the welfare of the children.
The noble and learned Viscount, Lord Simon, has leaned strongly upon that, and in any case that was the main point I wished to bring forward. Anything that can possibly be done to mitigate the tragedy of these broken homes, especially as it affects the children of the marriage, clearly should be done. I do not think that it is possible to overestimate the tragic character of that position. When we converse with the headmasters of schools we are told, on the one hand, that where there is a particularly difficult problem child, boy or girl, it is almost invariably found on investigation that the parents have been divorced, and, on the other hand, where it is known that there has been a divorce almost invariably some psychological abnormality, in many cases tragic disability, is discovered in the offspring. I imagine that the verdict of psychiatrists will bear out that view, and the experience of children's and other courts will also confirm it.
The noble and learned Lord, Lord Merriman, has said that we are making the best of a bad job—I think that was his phrase. And in many cases the courts try to make the best of an already tragic situation. Clearly, prevention is better than cure. Sometimes in debates in this House we are allowed to stray a little from the strict terms of the Motion, as a matter of witness, and, as a matter of witness, before I sit down I may perhaps be allowed to say that whatever may be thought about the Tightness or wrongness of divorce as such, the true remedy for these tragic happenings is a revived conviction in the public mind about the proper permanence of marriage, about the lifelong obligation of the marriage tie, about the obligations of family life and parenthood, and about the duties of parents towards their children.
Your Lordships may say that that is the business of the Church, and I agree that it is the business of the Church to put these matters effectively before those who are contemplating matrimony. There 348 is need for a constructive, positive Christian teaching about marriage beforehand. In regard to all that, in so far as it is open to me to speak for the Church, I am prepared to stand in a white sheet, or at any rate in a white rochet, and admit that in the past not so much has been done as ought to have been done to put before the present generation a positive Christian teaching about marriage. There are excuses: the Church is shorthanded; our problems are enormous, especially in the towns; from the point of view of sheer numbers it is hard to deal with all the potential husbands and wives, and unfortunately not all ministers of the Church are equally well-equipped or well suited to deal with these very difficult problems as adequately as might be wished. None the less, this matter is on the conscience of the Church, and of the occupants of these Benches, and some effort is being made to give constructive Christian teaching on marriage before marriage itself is undertaken. I hope that that will be increasingly so, and that there will be, by the mercy of God, a revival in our society of the ideals of Christian matrimony.
§ 5.30 p.m.
§ THE LORD CHANCELLORMy Lords, I am sure we are all grateful to the noble Viscount who moved this Motion for the interest which he shows in this important topic and for the speeches which he has elicited in the debate. We are all grateful, too, and think it most right and proper, that a member of the Bench from which the right reverend Prelate spoke should take part in this debate. I confess that I have thought a great deal about this topic. My views are wholly unorthodox. I have arrived at the stage when I rather begin to feel that I do not mind so much whether people who have not got children get divorced or not; but I do feel that if people have taken upon themselves the responsibility of bringing children into the world, it is their bounden duty to make the lives of those children tolerable by presenting them with a united and happy home in which to live. It seems to me that the problem is a very different one in the case of parents from what it is in the case of people who have no children. As the right reverend Prelate said, he strayed from the paths of order, and he tempted me to go down and stray further.
349 So far as this Motion is concerned, While I thank the noble Viscount for bringing forward the matter—and he has had a helpful and encouraging reply from the noble and learned Lord, Lord Merriman—I shall ask him to withdraw it. I do not feel that much is to be gained— or, indeed, anything—in general cases by separate representation of children. I would suggest that the noble Viscount should ask himself this simple question: From what source does the person who is representing those children get his instructions? When you are dealing in a Court of Chancery with children who may be interested in certain contingencies in an estate, or something of that sort, it is easy enough to appoint an independent firm of solicitors, who instruct counsel; and there you have presented to the Judge the contingencies that may arise upon whether or not Aunt Jane dies before Aunt Mary, and that sort of thing. But if you are dealing with a young child, and you predicate that that child shall be separately represented, the child cannot give instructions to anybody. As Lord Merriman said, in some cases any member of the public may come in— Aunt Jane may intervene, if she is so minded. But that is very rare, and in practice in 99 cases out of 100 the instructions would come from the parents. That is what makes it so difficult—Mr. Justice Denning (as he then was) did not seem to realise this, or I think he forgot it—to propound that sort of doctrine in cases where the parents are agreed. Of course, it is true to say that the mere fact that the parents agree in no way ousts the jurisdiction of the court; and if the court saw that these people were two thoroughly discreditable persons, it could take separate action and make all the inquiries it thought proper. But in the ordinary case, where the parents have agreed, it is difficult, in practice, for the court to do anything but accept that agreement. I do not think anything will be gained by separate representation of the children, save in a most exceptional case.
So it is in the second of the cases which Mr. Justice Denning proposed, where there is no dispute as to custody—where one parent does not trouble to raise the issue. I agree that there may be some kind of a corrupt bargain in which the child is treated as something that does not matter. But it is most difficult, in practice, for the court to intervene. I will not go back to the old question we raised 350 in the last debate of having probation officers to browse at large through a vast number of cases, selecting which they like to investigate. There is nothing on the face of the case itself to show whether it should be investigated or not. Almost all of us came to the conclusion on the last occasion that that was a quite impracticable idea.
I agree with the noble Lord, Lord Merriman, that this experiment has proved itself to be a useful one. I hope and believe that slowly, but surely—and we shall build on sure foundations—more and more use will be made of these officers. I am quite prepared, so far as I am concerned, always assuming that I can get Treasury approval (which I do not always get) to see that an adequate number of these officers are available and at the disposal of the Judges, in London and elsewhere. However. I feel certain that in this difficult problem by far the better course is to trust the matter to the discretion of the Judges. They know the ropes and they fully realise, as does every lawyer, that the welfare of the child is the paramount consideration. I believe that much more will be achieved by leaving it to the Judges to work out and follow on the lines now being applied than will be achieved in any other way.
§ 5.37 p.m.
VISCOUNT ST. DAVIDSMy Lords, I must thank all the noble Lords who have taken part in this debate for what I consider to be a most interesting set of speeches. I admit that when I put the Motion on the Paper I did not imagine that it would be accepted in the letter, but I think we can say that it has been accepted in the spirit in which it was moved. In those circumstances, I do not in the least mind withdrawing the letter. I was particularly impressed with the statement of the case as it now stands by the noble and learned Viscount. I only wish I could have had a conversation with the gentleman who has been appointed to carry out this task, as it must indeed be intensely interesting to hear how this new pioneering adventure into the protection of children is proceeding. In the circumstances, the best thing we can do—and it is as much as I had hoped for in the beginning—is to give our blessing to this new development. I beg leave to withdraw my Motion.
§ Motion, by leave, withdrawn.
§ House adjourned at twenty-two minutes before six o'clock.