HL Deb 21 February 1995 vol 561 cc1097-110

7.6 p.m.

Baroness Carnegy of Lour

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Carnegy of Lour.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTLES (Lord Murton of Lindisfarne) in the Chair.]

Clause 1 [Inadmissibility in civil proceedings of information as to what occurred during family mediation]:

Baroness Carnegy of Lour moved Amendment No. 1:

Page 2, line 4, at end insert: ("(4) A certificate by the Lord President approving an organisation under subsection (2) above shall be—

  1. (a) in such form as may be prescribed by Act of Sederunt; and
  2. (b) admissible as evidence in any civil proceedings and sufficient evidence of the matters contained therein.").

The noble Baroness said: In moving this amendment, and if the Committee agrees, I shall speak at the same time to Amendment No. 4 which is consequential. Clause 1(2) establishes that family mediation which is protected by this Bill must be conducted by the accredited mediator and accreditation may only be to an approved organisation. That is clearly an important principle, given that the Bill's purpose is to render information about what occurs in family mediation inadmissible as evidence in civil cases.

Because this rule of admissibility applies to civil proceedings in all Scottish courts, it is the Lord President of the Court of Session who will grant approval to accrediting organisations. In the course of consideration of how the accreditation procedure will work in practice, it has become clear that the Lord President will need a certain amount of flexibility in the form of approval of organisations. It is also important that the means by which he conveys his approval shall not be called into question. Amendment No. 1 seeks to provide that.

The first part of the amendment states that the form of the certificate of approval shall be by Act of Sederunt, a common enough proceeding, I understand, in such circumstances. It is suggested as the right way to proceed in the Law Commission report.

The second part of the amendment establishes that the certificate of approval will be admissible in evidence and be sufficient proof in itself that the organisation named on it has been approved by the Lord President for the purposes of the Bill; that is to say, if a certificate of approval from the Lord President is presented in evidence to a civil court, the organisation to which the certificate refers is indeed an approved organisation. I hope that the Committee can accept Amendment No. 1.

I now turn to Amendment No. 4. This amendment becomes necessary because Amendment No. 1 includes the word "prescribed". The Lord President's power to prescribe by Act of Sederunt as proposed in Amendment No. 1, unlike the Secretary of State's powers of prescription elsewhere in the Bill, does not involve regulations, nor the approval of this House or another place. Amendment No. 4 therefore ensures that Clause 3(2) is not applied to an Act of Sederunt. I hope that the Committee will feel able to accept the amendment. I beg to move Amendment No. 1.

The Earl of Mar and Kellie

The two amendments expand further on the power of the Lord President to approve organisations involved in family mediation. Clause 1(2) refers to organisations concerned with family mediation which are approved by the Lord President for inclusion in the inadmissibility of evidence scheme. Clause 1(3) allows the Lord President to place a time limit on the approval and to withdraw approval at any time if unsatisfactory circumstances arise.

Amendment No. 1 would create subsection (4), explaining that approval for the organisation will be expressed in a legally backed certificate issued by the Lord President. That certificate will be the only proof required in civil proceedings that the organisation is approved; hence evidence generated during its family mediations is inadmissible. I support the amendment and believe it will establish beyond doubt the status of evidence from family mediation.

Lord Macaulay of Bragar

We have always made it clear that we shall give the Bill a fair wind through your Lordships' House, but I have not yet had an opportunity to discuss with the noble Baroness, Lady Carnegy, the question of consultation before the Lord President approves a particular organisation. The Bill does not seem to cover that. Unlike most Bills, it does not contain a provision stating, "The Lord President, having consulted with interested parties or with any parties designated by the Secretary of State, shall approve" an organisation.

I am not trying to be awkward, but it seems that the Lord President will have an absolute right to say yes or no to a particular organisation without any representation from that organisation. That may be a matter to return to on Report, after consultation with the Scottish Law Commission and the Government.

The Lord Advocate (Lord Rodger of Earlsferry)

I am grateful to my noble friend Lady Carnegy for her explanation of the reasons for the amendments. I understand that they derive from representations made by the Lord President as to the arrangements which should be made in connection with his functions under Clause 1. I am sure that the amendments will achieve the effects which my noble friend explained and I am pleased to confirm that the Government are willing to see them incorporated in the Bill.

Baroness Carnegy of Lour

Before my noble and learned friend sits down, does he have a view on the question of consultation, about which the noble Lord, Lord Macaulay, asked?

Lord Rodger of Earlsferry

Before approving any particular organisation, obviously the Lord President will have received an approach from it and will have made such inquiries as he thinks appropriate before taking a decision. It is precisely to allow him to obtain the necessary information that the power is given in the amendments.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, it is not so much a question of consultation as of allowing others to say, "This is not an appropriate body to he involved in such matters". I think that the field should be opened and that this matter should not be left to the Lord President absolutely. Nothing in the Bill states that the Lord President "shall consult" with anybody before approving an organisation.

Lord Rodger of Earlsferry

It is certainly the case that there is nothing on the face of the Bill to deal with that.

Baroness Carnegy of Lour

I thank my noble and learned friend for his comments, and am grateful also to the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Macaulay. On the question of how the Lord President will proceed, I take it that it will be a matter for him unless something is set down in the Bill which compels him to take some action.

I shall go a little further into this and let the noble Lord, Lord Macaulay, know of any helpful information that I discover. I hope that that will satisfy him and that it will not be necessary to amend the Bill further. In the meantime, I commend the amendment to the Committee.

On Question, amendment agreed to.

7.15 p.m.

Baroness Carnegy of Lour moved Amendment No. 2:

Page 2, line 4, at end insert: ("(5) The Lord President may, in connection with the performance of any of his functions under this Act, require an organisation which is seeking, or has been granted, approval under subsection (2) above to provide him with such information as he thinks fit.").

The noble Baroness said: This amendment allows the Lord President either when he is considering approval of an organisation or, having previously approved an organisation, to require it to submit such information as he finds necessary. As with Amendment No. 1, the need for this amendment has come to light in the course of discussion about the detailed working of the Bill. I take it from what my noble and learned friend said that that includes discussion with the Lord President.

Clearly, for the Lord President to make a judgment as to whether to approve an organisation for the purposes of the Act he must have the information that he needs. In addition, at Clause 1(3) the Lord President can approve an organisation for a fixed period of time and has the power to withdraw approval at any time. He must therefore be able to require an organisation being considered for approval (or one which is already approved) to submit whatever information he needs for proper consideration or review. I am advised that it would not be a tenable position for the Lord President to have to rely on organisations supplying information voluntarily. As the Bill stands, should necessary information not be forthcoming, his only sanction would be to refuse approval or to withdraw approval. That might well be seen as heavy-handed—and perhaps controversial. I hope that this amendment will strike the Committee as necessary. I beg to move.

The Earl of Mar and Kellie

This amendment to Clause 1 seeks to add subsection (5), which would spell out the powers of the Lord President to determine which agencies in family mediation are acceptable to the Court of Session. The process of approval should lead to the achievement and maintenance of high standards of performance. The Lord President will decide if an organisation can be approved, based on his investigation of the organisation, its aims, methods, training practices and arrangements.

I visited Family Mediation Central last week at its Stirling accommodation. I learnt that it speaks with many new referrals, some of which become mediations lasting between three and eight sessions. Family Mediation Central also runs an access centre in Alloa. The training programme for mediators requires attendance at a basic training course for 11 days, followed by supervised mediation practice of at least 50 hours. To be accepted as an experienced mediator, a probationary mediator will have to gain considerable experience in mediation. Mediation is, of course, different from counselling, advice, guidance and education. Family mediation is the management of other people's negotiations.

The Lord President will also be able to scrutinise and reassess currently approved organisations should there be grounds for concern. In the worst case, he will be able to determine disapproval and subsequently to withdraw the certificate which was mentioned in Amendment No. 1. I support the amendment, which will keep approved organisations on their mettle.

Lord Macaulay of Bragar

I make the same point. There is nothing in the Bill as drafted to allow people to make representations against a particular organisation being approved as mediator. I hope that it will be a matter for discussion. I shall not take up the Committee's time discussing the whys and wherefores of that; I am just making the point. I hope that it will be taken on board by the Government.

Lord Rodger of Earlsferry

As my noble friend has made clear, the amendment provides the Lord President with the power to require from organisations which are seeking approval for the purposes of the Bill any information which he thinks fit. It would also allow him to require that information when he is monitoring the performance of the approved mediation organisation.

The amendment is desirable. One has to be a little cautious in that all that the Lord President is doing is approving these organisations for the purposes of the Bill—that is to say, so that they attract the particular evidential status. One could not expect the Lord President to act as some sort of guardian of the whole standard of mediation organisations. That is not something that he would be able to do.

Baroness Carnegy of Lour

I listened to what my noble and learned friend said. When we are discussing the Bill, we must keep reminding ourselves that it has a limited purpose. The approval of mediation organisations has to be seen in that light. Again, if anything further comes to hand, I shall let the noble Lord, Lord Macaulay, know. The noble Earl, Lord Mar and Kellie, said that the arrangement will keep the organisations on their mettle. I am sure that he is right. It has to do with standards, and that is a very good thing. I am glad that he said that.

On Question, amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord McCluskey

I want to say one thing that I would have said had I been here on Second Reading—that is, I am entirely in favour of the principle, and congratulate the noble Baroness on introducing the Bill. A technical matter arises in relation to Clause 1 as it stands amended. It is that subsection (4) refers to: A certificate by the Lord President". It might be wise to consider putting in a provision to the effect that a document purporting to be such a certificate under the clause shall be accepted as such unless the contrary is proved. So if a document emerges signed by the Lord President, in whatever signature he may be sporting at that time, it will be deemed to be a certificate under the Bill unless the contrary is proved. That might avoid some awkwardness which one might occasionally have with a particular kind of case.

There is one other thing I would like to say. The principle embodied in the Bill is one which I should like to see extended, if it works here, to other forms of litigation.

Baroness Carnegy of Lour

I thank the noble and learned Lord for his remarks. I do not know whether it is a coincidence but it is a happy fact that we have such a distinguished judge to help us with the Bill. I am sure that my noble and learned friend on the Front Bench will note what he has said. I shall consult him to see whether the Government agree that this approach should be extended. I do not believe that I can be expected to know the merits of the case at the moment. It is quite beyond me, as I am sure the Committee will appreciate.

Lord Macaulay of Bragar

Before the noble Baroness sits down, it may be my ignorance but a definition of a "purported marriage" is not included in the Bill. Is it proposed to define a "purported marriage"? It may be in the Law Commission's report, which I have not yet had a chance to look at in detail. Perhaps we might look at that between now and Report stage. "Purported marriage" is a contradiction in terms. I do not know what it means. As it is part of the Bill, perhaps we may have it defined in a definition clause. I know what purported marriages are, but I should like to have them defined.

Baroness Carnegy of Lour

I asked the same question. I was told that it was a supposed or apparent marriage. It may, for example, be a bigamous marriage which is not a marriage in law. I do not want to get into all that. I was told that it was not necessary to define the words. Again, I shall find out and ensure that the Bill is right.

Lord Macaulay of Bragar

I appreciate the noble Baroness's difficulty. We are dealing in precise terms with questions of mediation, and with whom the mediator has to deal. If two people come in and the mediator says, "Who are you?", and they say, "We are a purported marriage", what is the mediator supposed to do? It may be unnecessary to put such a phrase into a modern Bill. Perhaps we should just forget about it and say that the mediator shall mediate between parties involving the child, as was said on Second Reading. It may be a matter for consideration. I am not trying to be facetious in any way; but I can see the problems that might occur when people come before the mediator and say, "We are a purported marriage. This is a product of a purported marriage". The product of a purported marriage could be a purported child.

Baroness Carnegy of Lour

The phrase was in the Law Commission's draft Bill, as the noble Lord will know. Obviously the Law Commission thought that it was all right. One departs from the Law Commission's phraseology with reluctance. I do not know whether my noble and learned friend wants to say anything about it. I shall have a look at it.

Clause 1, as amended, agreed to.

Clause 2 [Exceptions to general rule of inadmissibility]:

Baroness Carnegy of Lour moved Amendment No. 3:

Page 2, line 46, leave out ("the child of any such person") and insert ("a child who is the subject of such a family mediation").

The noble Baroness said: The amendment makes it clear that it is the child who is the subject of mediation, and not any other child, who is to be regarded as a participant in family mediation. The amendment responds to a point which I raised with the Minister. My noble and learned friend Lord Fraser of Carmyllie was on the Front Bench at the time, and he acknowledged the point on Second Reading.

The amendment seeks to remove an ambiguity in Clause 2(2) as to precisely when, for the purposes of that clause, a child shall be regarded as a participant. As subsection (2) is currently worded, the child participant could be any child of any adult participant even if that child was not the subject of family mediation. Of course that is not the intention of the Bill.

Likewise, as the subsection stands, it excludes the possibility that the child might be the subject of mediation between adults who included, say, a grandparent, uncle or aunt. The child to be regarded as a participant is the child who is the subject of family mediation which deals with the matters affecting him or her listed in Clause 1 (2) (a). This clarification is important, because in Clause 2(1) (c) one of the exceptions to the general rule of inadmissibility is that if all the participants, including the child participant, agree. I hope that the Committee will accept the amendment and the clarification it brings. I beg to move.

The Earl of Mar and Kellie

The amendment broadens the range of children referred to in Clause 2(2) (b). It is most appropriate in view of changing social trends, in particular, the increased frequency of step-families and single parent arrangements. We are beginning to come across families where there are "his" children, "her" children, and "their" children. We must try to legislate for all foreseeable eventualities. For example, I am fortunate that my marriage continues to thrive, but, had it broken down before my step-children became adults, I should have wanted to seek legal access arrangements on the grounds that I had been a de facto parent and also because I like them.

There is an increased need for a mediation service for grandparents who seek access to their grandchildren on the break-up of their children's marriage. The amendment would clear the way for a wider range of parenting arrangements to come within the scope of the inadmissible evidence scheme.

7.30 p.m.

Lord McCluskey

The noble Baroness drew the Committee's attention to Clause 2(1)(c). If the idea is that every participant might agree, the Bill, whether as drafted or as it is proposed to be amended, involves the possible agreement by a child. Let us suppose that the child is not of an age when he can grant or withhold agreement. That might make it difficult for Clause 2(1) to operate.

I may have misunderstood the Bill but, if not, it may be that an additional provision is required in order to avoid the need to seek agreement by a participant who is not of an age to grant agreement.

Lord Macaulay of Bragar

The noble and learned Lord may find a response to his observation at Clause 2(3), which deals with the age of legal capacity. It states: any child who is regarded as a participant in family mediation by virtue of subsection (2) above shall have legal capacity to agree that information should be admitted as evidence if at the time when the mediation took place he was capable of understanding the nature and significance of the matters to which the information relates". The noble and learned Lord raised his eyebrows—or his noble and learned brow. I had intended to raise the matter on the Question of Clause 2 standing part of the Bill because certain matters in relation to the child must be looked at closely between now and the Report stage.

Lord McCluskey

I am obliged to the noble Lord for pointing that out, but it does not deal with the matter which I raised. Subsection (3) gives the child the legal capacity to agree but it does not deal with the situation in which the child is not of an age to agree.

Lord Rodger of Earlsferry

Notwithstanding what was said by the noble and learned Lord, the provision is intended to deal with that matter. Only when the child is of such an age is his consent relevant. I do not understand the intention of the provision to relate to the case in which the child is so young that he cannot agree. However, perhaps the matter should be investigated further.

As regards the matter raised by the noble Lord, Lord Macaulay, one must remember that here we are not concerned with the question of children in relation to mediation in general but only in relation to whether what occurs in mediation should be admissible in evidence. While there may be other questions which relate to children in relation to mediation, we are now concerned only with the question of admissibility of evidence in relation to that matter.

As regards the point raised by the noble and learned Lord, Lord McCluskey, we shall look at it again to see whether anything needs to be done.

Baroness Carnegy of Lour

I am grateful to the noble and learned Lord, Lord McCluskey, for drawing attention to the issue. It is a matter of the changing practice of family mediation. The Law Commission report suggested that any child present at the mediation would be a participant. The Bill has slightly shifted the focus because the practice is changing. Children are not generally present at family mediation. Some 80 per cent. of children who are the subject of mediation are under the age of 12. It would not be in the best interest of most of those children to be present at mediation sessions involving adults with responsibility for them. That is because it is important that young children are not burdened more than is necessary with the differences which their parents or other adults concerned are seeking to resolve. Equally, they should not be put in the position where strange and divided loyalties are imposed on them. Family mediation is about parents and others with custody exercising their parental responsibilities properly.

That means that when the agreement of the child is required for information to be admitted as evidence, it will be necessary for the situation to be explained to him or her and the child's view obtained by someone specially trained in talking with and relating to children who can determine how far that child is capable of understanding the nature and significance of the matters to which this information relates.

I have not discussed the subject with my noble and learned friend the Lord Advocate. The mediation procedure—and not the legal procedure—means that a child of any age who can understand what is happening may be asked whether he or she agrees, even though they have not been at the mediation at all. That is how I understand the Bill to fit in with current practice and that is my information from Family Mediation.

It may be that we need to have further discussions about the issue and decide whether this is the correct way to express the provision in law. Certainly it is the practice at the present time as regards Family Mediation Scotland. I hope that, given that explanation, the Committee will accept the amendment. If necessary, we can go into the matter further at a later stage.

On Question, amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord Macaulay of Bragar

The Bill began as a simple Bill but it now raises larger issues. In speaking to the Question, I speak in general terms. I believe that there are matters which require sober thought. All parties involved, looking in particular at the interests of the children, should get round the table to see whether they can hammer out a solution to problems which are beginning to emerge as the debate proceeds.

On Second Reading I raised the issue of the representation of the child. The noble Baroness's last comments focus on that issue. She shakes her head, but perhaps I may ask, if the child is to be the subject of mediation—and the child is included in Clause 1—who represents the child? It is not enough for the mediator to represent the child; that is not his function. Presumably the function of the mediator is to hold the balance between the parties and the child. I wonder whether we should be looking more closely at the role and function of the mediator and the consequences that will fall upon the person acting as the mediator as regards later court proceedings.

I notice that the Bill is entitled: An Act to make provision for the inadmissibility as evidence in civil proceedings in Scotland". I believe that a better phrase might be "the admissibility", but that is another matter. If people are being asked to come forward as mediators in those fraught situations, they must know where they stand. Are they to be called as witnesses in subsequent proceedings? Clause 2(1) states: Nothing in section I of this Act shall prevent the admissibility as evidence in civil proceedings … of information as to what occurred during family mediation if every participant (other than the mediator) in that mediation agrees that the information should be admitted as evidence". Therefore, the mediator may very well be caught in a no-win situation.

I am not trying in any way to obstruct the passage of the Bill. I am merely trying to foresee problems that might arise. If there is to be family mediation, notes must be taken of the evidence given in the mediation because they may be used at a later stage. It is not sufficient to call in the mediator to ask him what he has written in his notes, because we all know how defective notes may be.

I am rather concerned about the mediator's role. This afternoon on my way to your Lordships' House from the frozen north (as it was when I left), I was wondering, what would happen if, in the course of the civil proceedings—the Bill relates to civil proceedings—an admission were made by a husband that he threatened to kill his wife, or vice versa, as happens in these days of equality. If the husband then murders his wife, is the admission made before the mediator to be relied upon during the course of criminal proceedings?

I raise that question quite seriously. The O.J. Simpson trial starts with his threats to kill his wife and the call to the emergency services some years before the incident. Obviously, whoever killed her is not a matter for this Committee. But one can see the difficulties. If a man makes an admission before the mediator, and then goes on to kill his spouse, is the mediator to be called to say, "Yes, he did admit that he threatened to kill her on 23rd August 1992"? I do not know.

I raise those difficulties because I hope that we can discuss them. I do not wish to impede the progress of the Bill; but I wish to ensure that the interests of all the people that may be affected are protected. I hope that the noble Baroness will accept that I shall try not to be obstructive. I hope that we can sit around the table and sort out any problems which might arise.

Lord Rodger of Earlsferry

The noble Lord will be aware that the Title of the Bill refers to provision for the inadmissibility of certain matters. That is because, at present, all those matters are admissible. Therefore, the Bill seeks to introduce an area in which evidence will not be admissible. That is to assist the process of mediation, and so on. As the noble Lord has perceived, that does not apply to criminal proceedings. Therefore, the short answer to the noble Lord's question is that nothing in the Bill would render that inadmissible.

There must always be a balance in relation to these matters; but there are certain exceptions to the inroads that are being made in relation to admissibility of evidence. Those exceptions are set out in Clause 2(1). That is the general thrust of the Bill.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, is he saying as a matter of law that if, within the context of mediation, a person admits that he threatened to kill his wife with a knife and later does just that, what he said to the mediator in the course of the civil evidence family mediation procedure is admissible in criminal proceedings?

Lord Rodger of Earlsferry

I said that if it were otherwise admissible, then nothing in this Bill would render it inadmissible because Clause 2(1) deals with the exceptions.

7.45 p.m.

Baroness Carnegy of Lour

I believe that if the noble Lord, Lord Macaulay, studies the Law Commission's report, he will see that several of the points which he has raised are dealt with there. That report indicates why it has followed that approach in the Bill. That has not been changed since it left the Law Commission. I believe that that covers the point about somebody who talks about a criminal offence. I may be wrong. As the noble Lord knows, I am not a lawyer; but, speaking from memory, I believe that those points are covered in that report.

I shall read with great interest what the noble Lord has said. It may be that a meeting will be necessary. Certainly, we shall need to be clear about this matter. It is very important that we know how the child is to be approached in relation to that one issue which arises; namely, consent as a participant and whether what has occurred in the mediation is to be admissible or inadmissible.

Lord Macaulay of Bragar

I am grateful to the noble Baroness for her guidance, and of course I shall look again at the Law Commission's report. However, the courts are not concerned with interpreting Law Commission reports but with interpreting the Bill, or the Act as it will become in due course. I hope that the noble Baroness, myself and all those concerned with this matter will get together to discuss it.

Clause 2, as amended, agreed to.

Clause 3 [Short title, construction, commencement and extent]:

Baroness Carnegy of Lour moved Amendment No. 4:

Page 3, line 12, after (" "prescribe" ") insert (", except in relation to an Act of Sederunt,").

On Question, amendment agreed to.

Baroness Carnegy of Lour moved Amendment No. 5:

Page 3, leave out lines 15 to 17 and insert: (" (3) This Act shall come into force on such day as the Lord Advocate may by order made by statutory instrument appoint; and such order may include such transitional or incidental provisions as appear to him to be necessary or expedient.").

The noble Baroness said: This amendment relates to two important points raised on Second Reading. First, it responds, at any rate in part, to the request made by the noble Lord, Lord Macaulay, to the Minister that he should look again at the question of the status of the child. The Minister's reply made the link with the Children (Scotland) Bill which is making its way through another place.

The amendment allows the Lord Advocate flexibility in bringing the Bill into force. Rather than the Bill coming into force two months after Royal Assent and then having to amend it subsequently to reflect provisions in the Children (Scotland) Bill, the amendment would make it possible to delay implementation of this Bill until the Children (Scotland) Bill has received Royal Assent.

That seems to be a sensible approach. I do not wish to hold up the progress of this Bill; but with regard to the status of the child and in a number of other respects, there may well need to be cross-referencing. That can best be done later—probably while the Children (Scotland) Bill is under consideration in this Chamber.

My noble and learned friend may wish to say more about that. For my part, I hope that the noble Lord, Lord Macaulay, and the noble Earl, Lord Mar and Kellie, who have a particular interest in this matter, will welcome that aspect of the amendment.

I also hope that the flexibility introduced by the amendment will, to some extent, meet another concern which I expressed on Second Reading and one about which Family Mediation Scotland is particularly anxious. Whenever the provisions of the Bill come into force, there will be a family mediation in progress. Clearly the legislation cannot be retrospective; but it is surely desirable that, once it is in force, mediation should be covered as soon as possible.

As the Bill stands, the legislation will apply to proceedings commenced on or after the day upon which it comes into force. The nature of proceedings varies and much time may elapse before proof begins—time during which mediation may take place. Can my noble and learned friend the Lord Advocate give me an assurance that the transitional provisions allowed for in the amendment will in fact be used to apply the protection of the Bill to mediation relating to cases where proof has not yet begun by the date of implementation? That was the approach suggested by my noble and learned friend Lord Fraser of Carmyllie on Second Reading.

I had hoped that I would be advised that that could, with advantage, be placed on the face of the Bill. However, my advice now is that the amendment would be more workable. I accept that fact. However, I should like to be sure that some arrangement can be made to meet the anxieties on that point raised by Family Mediation Scotland. I look forward to hearing any further explanation that my noble and learned friend can give Members of the Committee. I should especially like to receive the assurance that I have just requested. I beg to move.

The Earl of Mar and Kellie

The amendment alters the timing of the implementation of the Bill after enactment. It obviously relates to the passage of the important Children (Scotland) Bill through another place and, subsequently, through this Chamber. I should prefer a firmer commitment to the implementation of the Bill with a more precise date. I appreciate that the Bill may need to be modified in the light of the somewhat superior legislation contained in the potential Children (Scotland) Act.

We shall have to learn new terminology for failed relationships. Out will go the words "custody" and "access" and in will come residence and contact orders. That will reflect the changes in parental responsibilities and parental rights proposed in the Children (Scotland) Bill. A significant change will be the responsibility and right to regulate the residence of a child who is no longer living with the parent and also that parent's opportunity to participate in the estranged child's health, development and welfare.

I do not believe that a child has the right to decide the style of his upbringing. That must be the responsibility of the parents. I shall not oppose the amendment in Committee, in the hope that a more precise date of commencement will be forthcoming.

Lord Rodger of Earlsferry

The intention of the amendment is not to delay unnecessarily the commencement of the Bill, but rather to provide a certain measure of flexibility. It is a little difficult to foresee how far it will be necessary to have that flexibility in relation to the children Bill because it depends on whether or not it contains provisions which substantially affect the Bill now before us. Obviously it would be rather foolish if, for example, the legislation commenced and very shortly thereafter it needed to be amended. In those circumstances, it might be sensible to wait until the legislation had been amended before it was allowed to commence. However, I do not believe that that issue should cause any undue delay. It is certainly not intended that it should.

As regards the other matter, I understand the concerns of members of Family Mediation Scotland, who desire that the provisions of the Bill should come into force as soon as possible and should, therefore, affect their work as soon as possible.

I hope that I can respond to the invitation from my noble friend by indicating that it would be my intention in framing the terms of the commencement order to consider whether it should contain a transitional provision whereby the Bill's provisions will apply to cases in which proof has not yet taken place—that is, in cases where the evidence has not yet been led—at the commencement date. We want to look at that aspect of the matter with a little more care. However, as my noble and learned friend Lord Fraser said on Second Reading, that is certainly our intention.

Baroness Carnegy of Lour

I thank my noble and learned friend for that response. I believe that Family Mediation Scotland and I perhaps cannot expect much more. I do not think that any Minister has ever given a cast-iron assurance as to what he will put in an order long before it is made. However, the fact that my noble and learned friend's response will be recorded in Hansard is most comforting to us. I shall read the report of the proceedings to ensure that that is indeed as far as we can go.

I am sorry that we cannot accommodate the noble Earl by including a more fixed date. I do not believe that that would be possible. After all, the children Bill might not reach the statute book and, if the fixed date were linked to that legislation, it would not be very helpful. On that score, I believe that we should leave the Bill as it stands.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

House resumed: Bill reported with amendments.

House adjourned at three minutes before eight o'clock.