Family Law Bill [H.L.]

HL Deb 23 January 1996 vol 568 cc982-1026

House again in Committee on Clause 7.

[Amendments Nos.48 to 58 not moved.]

The Lord Chancellor moved Amendment No. 59: Page 4, line 31, leave out ("made") and insert ("received by the court").

The noble and learned Lord said: This amendment makes a drafting improvement. The word "made" should be amplified to say "received by the court". I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 60 and 61 not moved.]

Lord Meston moved Amendment No. 62: After Clause 7, insert the following new clause—

ORDERS EXTENDING THE PERIOD OF REFLECTION

(".—( ) If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the period of reflection is to be extended for a specified time, or until a specified event has occurred.

(2) Such an order (an "order extending the period of reflection") may be made only if the court is satisfied that it would be equitable and just, in all the circumstances, for the period of reflection to be extended.").

The noble Lord said: Amendment No. 62 suggests that the court should be empowered in appropriate cases to extend the usual one year period for reflection. This power could be an added inducement to the parties to resolve matters which otherwise might be possible grounds for an application for an order under Clause 10 to prevent the divorce, in particular if the powers in Clause 10 are to be enlarged as some Members of the Committee propose. The delay which Amendment No. 62 allows could be for either a specific period or until the occurrence of a specific event; for example, the conclusion of a religious divorce. However, again I do not wish to anticipate the arguments which will follow in connection with Clause 10. I suggest that the power proposed in the amendment gives the court more flexibility and control than the Bill at present allows. I beg to move.

The Lord Chancellor

I indicated earlier the possibility of an extension in some cases but I should think it wise to make the instances very specific. Therefore, I believe that it would be best to take that into account in connection with the hardship bar. It appears to me to distort somewhat the period of reflection to extend it in that way on the application for the divorce order.

I regard it as important to keep the whole structure as simple and as clear as possible. Therefore, with the extension powers that exist in relation to Section 41, and the possibility of the hardship bar being used for extension, it is a sufficiently complicated structure for us not to complicate it further. I hope that the noble Lord will feel able to agree with that view.

Lord Meston

I am not entirely convinced that the proposal would unduly complicate the provisions in the Bill. It was intended in certain cases to avoid the necessity of invoking the hardship bar. However, I wish Ito consider the matter further and at this stage beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor

Perhaps at this stage we should take the question that Clause 7 stand part of the Bill.

Clause 7, as amended, agreed to.

8.45 p.m.

Clause 8 [Attendance at information sessions]:

[Amendment No. 63 not moved.]

Lord Simon of Glaisdale moved Amendment No. 64: Page 4, line 34, leave out ("(except in prescribed circumstances)").

The noble and learned Lord said: This amendment is grouped with a number of others of which Amendments Nos. 66 and 68 are in my name. They can be discussed. conveniently with Amendment No. 64. The rest are in the names of other noble Lords, except for Amendment No. 72 which could more conveniently be taken separately.

The amendments are purely probing. Amendments Nos. 64 and 66 omit the words: "except in prescribed circumstances". In Amendment No. 68 the words omitted are "of a prescribed description". The Committee will wish to know why my noble and learned friend needs the powers and what kind of circumstances or description he proposes to prescribe. I imagine that the provision is not inserted just in case it might come in useful if needed at some time. I believe that Members of the Committee are willing to grant the powers but Parliament is entitled to know why they are required and what is envisaged. I beg to move.

The Lord Chancellor

The principles that I sought to follow in relation to the information sessions are ones which we discussed in relation to an earlier amendment. I have in mind that there should be meetings to which people would go who contemplated starting proceedings. It is fairly clear that some people would be unable to do so; for example, if a person were housebound, disabled or if going to a particular place might put them at risk of violence. There are other possibilities in which alternative arrangements for the giving of information might be suitable rather than requiring someone to attend a session. For example, it might apply if someone were in custody. There may be other circumstances. I cannot envisage everything possible but situations might exist in which it would not be right to require a person to attend such a session. That is the reason for the power.

Lord Simon of Glaisdale

My noble and learned friend has not dealt with Amendment No. 68 and the words "of a prescribed description".

The Lord Chancellor

The precise nature of the situations requires to be considered in the light of the various possibilities that might arise. The description on page 4 at line 41 applies to the type of document that might be raised. The Bill states: Where one party has made a statement, the other party must (except in prescribed circumstances) attend an information session before … making any application to the court … with respect to a child of the family; or … of a prescribed description relating to property or financial matters". It might not be everyone who would require an information session. For example, it might be a matter of answering a request from the court which required a statement to be lodged in answer. In that situation it might not be necessary for an information session to be attended. That is the purpose of allowing for a prescribed description of a document to be the foundation for such a requirement.

Baroness Hamwee

Together with the right reverend Prelate, I have my name to this group, to Amendments Nos. 69 and 73 and also to Amendment No. 78.

I need not detain the Committee long with Amendment No. 69, the essence of which we debated yesterday. I tabled the amendment, as I made clear in my speech yesterday, not because the information session should be by way of a meeting but in order to ask the noble and learned Lord whether he had in mind that sessions might be in private. That is the second limb of Amendment No. 69. An information session may he a group session or a private session where the parties did not consent to a group session.

Secondly, I mentioned "an accredited provider" in Amendment No. 69 and Amendment No. 78 deals with that. I seek to suggest that there should be regulations providing, for the identification, qualification and responsibilities of the information providers who will undertake the work. Perhaps such accreditation could be considered in more detail after the pilots which the noble and learned Lord proposes.

Thirdly, Amendment No. 73 proposes that in subsection (5) of the clause, rather than the regulations "may" make provision, that the regulations "shall" make provision. I do not know what the right reverend Prelate had in mind, but I wished to ask why it was necessary to provide for matters which could be included in the regulations on the face of the Bill, and why those particular ones had been chosen. If there are to be regulations that deal with information sessions in general, it appears that there is quite a long list of items that will need to go into those regulations, and can go into those regulations without subsection (5) being there at all. Perhaps the noble and learned Lord can assist as to why those aspects are singled out.

The Lord Bishop of Oxford

A number of amendments are down in my name in this grouping: Amendments Nos. 71, 71A, 79 and 80. I hope that it will facilitate the business of the Committee if I associate with them some amendments down in my name in what I presume is a following grouping; namely, Amendments Nos. 71B, 154, 163, 163A and 163B. All nine amendments have to do with making marriage counselling available and supporting those agencies and organisations which in one way or another support marriage.

Clause 8 concerns attendance at information sessions. Amendment No. 71 seeks to ensure that those who attend are offered counselling sessions with an approved marriage counsellor. Whether the couple accept this is entirely voluntary, but if this Bill is to strengthen marriage, as all of us here hope, and to facilitate divorce where that seems to be inevitable, the availability of professional marriage counselling needs to be made known from the outset. Amendment No. 71A is similar. It is designed simply to ensure that the counselling that is offered is free. This relates to the new clause proposed by the noble and learned Lord in Amendment No. 162, which I along with other noble Lords very much welcome, and my amendment to that, Amendment No. 163. Amendment No. 71A seeks to ensure that the. couple are not only told that counselling is available but that it will be available without cost to them.

Amendment No. 71B is concerned simply with the definition of an approved marriage counsellor. We do not want just anybody coming in who believes that he or she is qualified to advise and counsel in this very sensitive and difficult area. Amendment No. 79 spells out the kind of information that needs to be given to a couple who are contemplating a divorce, both the benefits of marriage counselling and the effects of divorce on the parties and the children.

Amendment No. 80 seeks to ensure that when regulations are drawn up under this clause the Lord Chancellor will consult the qualifying organisations. (I apologise for the fact that this aspect involves a huge range of amendments, but I assure you that all of them concern marriage counselling in one way or another). Amendment No. 154 is related to the amendment of the noble and learned Lord, the Lord Chancellor, Amendment No. 162. That enables him to make grants to organisations which support marriage in various ways. In the light of his amendment, my amendment may not be as relevant as it was when it was put down.

Amendment No. 163 seeks to make the point, which has already been referred to, that the marriage counselling that is offered at the information session is free. Amendments Nos. 163A and 163B are concerned with definitions; the former with the definition of marriage support services, and the latter with marriage counselling.

The nub of these amendments is the belief that this Bill, properly amended, can support marriage. We are not pessimistic about the Bill and do not believe that it will necessarily lead to an increase in the number of divorces. However, if the Bill is to buttress marriage, it must be made quite clear that marriage counselling is available at any time during the year of reflection and consideration, and that if people wish to avail themselves of it such counselling will be free. We also wish to ensure that those who offer counselling are well trained and supervised. The corollary to that is that the marriage support agencies from whom such people will be drawn are in a financial position to train and supervise, as well as do the other valuable work of research into marriage and marriage education.

I hope that I am not over optimistic when I say that, among all the very divisive amendments on this Bill, the House will be able to unite around supporting these amendments. We believe that if these amendments are accepted it will be possible through the Bill to buttress marriage in a significant way.

Lord Irvine of Lairg

I desire to offer general support to the spirit of these amendments. In a sense, this Bill is a kind of prolegomenon for a new philosophy, but the amendments go to the question whether the detail has been thoroughly worked out. In principle, the Bill reposes a great deal of confidence in mediation as a substitute for litigation, and marriage counselling as a sensible substitute for conflict leading to break down.

I understand the spirit of these amendments to give detail to what may be thought of as mere warm words—that is, mediation and marriage counselling. I can ask the same questions as are implicit in these amendments of mediation as of marriage counselling. Who are the mediators? Who accredits them? What professional standards do they apply? When public money is involved, we need to know the answers to these questions. I suggest that precisely the same important questions may be asked of the marriage counsellors as are asked of the mediators. The cost of it all is critical. Therefore, I lend general support to the spirit of these amendments.

9 p.m.

Baroness Seear

I should like to make a very brief point. I strongly support these amendments. I should like confirmation from the noble and learned Lord the Lord Chancellor that the physical setting in which these information sessions, the meetings, will have to take place will be as informal, unthreatening, friendly and unbureaucratic as possible. The people will be in a disturbed state of mind and the physical setting in which those activities will take place can make a great deal of difference to the way in which people receive what is said to them. I should very much welcome the comments of the noble and learned Lord the Lord Chancellor on that point.

Lord Jakobovits

Reference has once again been made to marriage counselling and to the opportunities for information sessions. I associate myself with so distinguished a friend as the right reverend Prelate the Bishop of Oxford and rise to add a few comments. The debate has now lasted virtually three days and I have attended most of it with enormous eagerness. If so far I have not contributed to the debate it is not because I have nothing to say. It is more that what I would have said on the specific issues that have been raised has been said so much more effectively by other speakers, notably the noble Baroness, Lady Young, the noble and learned Lord, Lord Simon, in part, and in great measure by the noble and learned Lord the Lord Chancellor. They were words which gladdened my heart and I am fully content to look upon them as representing my own Thoughts also.

I greet with enormous relief and enthusiasm what one might almost call the revelation that there is unanimity on the importance of preserving and strengthening marriage, which should not be taken for granted. There are today powerful advocates of the denigration of marriage by alternative life styles, as is the term used. En this Chamber there is still represented a respect and reverence for tradition and for the assumption that marriage is the basic unit of any civilised society and that is profoundly gratifying. What has been said in favour of that position commands my great admiration and enthusiasm.

Yet if there is something that I can contribute, it is to say that I miss two specific dimensions from this debate, which is now well into its third day. First of all, I miss a sense of alarm. The discussion has been conducted as though we have to accept the present utterly unacceptable figures for divorce. I suspect that we are not communicating to the public at large the profound unease that should stir the nation over a catastrophe in our social fabric which has no precedent and few parallels. That now gives us the questionable distinction of being the country, at any rate in Europe, with the highest divorce rate.

There must be something radically wrong in the whole structure of our society and in its education and commitment to certain moral levels, if we can witness a disaster on a scale that involves something like 600,000 individuals every year. I say 600,000 because in a divorce there are usually at least four people involved—husband, wife and, say, two children, on average—and that easily gives the figure that I mentioned. If anything on that scale were to happen by way of physical illness—a plague that were to strike us—how stirred we would be and how enormous would be the efforts of the leaders of the nation, spiritual as well as temporal and at every level, to create a profound sense of uneasiness and therefore to lay the foundations of a meaningful response.

We are dealing here with tens of thousands of children who might be crippled for the rest of their life through suffering from such a plague. They are the innocent victims of it. Therefore I feel that, in the first place, something has lo go out from us—we were speaking of messages—whereby we alert and mobilise our schools, our clubs, the media and perhaps even our Churches. We must realise that we are facing a catastrophe of enormous proportions, to which the first reaction must be one of alarm, so that it seizes us with a feeling of profound unease and anxiety for the future.

Let me turn to the more positive angle. I believe that the key to the entire problem of the virtual dissolution of the marriage bond today and the cheapness with which it is treated on such a wide scale does not lie principally in making divorce more difficult or taking a longer or shorter time for reflection. It is already too late when a marriage has reached the stage at which either one or both parties seek an exit and actively think of breaking their marriage vows and the marriage bond. By then, the principal damage has already been done.

The first line of defence against marriage breakdown is the way in which we train our children, our students, our brides and grooms before they enter marriage to realise that there are mutual obligations; that marriage is not only there for what one can take out of it, but for what one can give to someone else. We must therefore indicate to them the commitment and earnestness of marriage, if necessary, compulsorily.

If we had a traffic accident rate of anything like the scale of the casualties from which we suffer through divorce, we would do anything to ensure that before anyone is given a licence to drive a car, proper and adequate training are given and tests taken to ensure that the training has taken effect. We would not allow such an enormous rate of slaughter to take place on our roads without taking some precaution to ensure that we do not hand the wheel to someone who is not adequately trained to take care of others who may be affected, whether they be fellow passengers, pedestrians or indeed the drivers themselves.

The principal line of defence therefore should be to ensure, by proper legislation, that no one enters into what is now a minefield of marriage without some form of adequate preparation, with warning signals and perhaps even a little guide as to how to choose a partner. Today it is all done so haphazardly. Today they fall in love; tomorrow they fall out of it. There is no sense of realism in relation to the earnestness required in making the biggest decision of one's life; that is, the choice of a life partner. It needs some form of regularised government control and state-supported activity whereby no one is allowed to enter into this most sacred contract on which the stability of our whole society depends without some form of realisation of what is at stake.

Some Members of the Committee gave us extremely valuable accounts of their personal experiences. My wife often reminds me that when we got married, immediately after the marriage, her mother took her aside and said: "Now, daughter, you are linked, bonded to your husband. It is your duty to ensure that you make a success of it. If you do not, you cannot come back to my home".

A mother should give some form of realistic advice to children. Thankfully, the advice was heeded, and not only by me and my wife. We are blessed with six children, all of them happily married. The word "divorce" or any thought that there may be a termination of, or that the bonds of any of the six may be breached, never crossed their minds. It is a cheerful family. When we come home, we are not burdened, in addition to our other cares and anxieties in a difficult and brutal world, with facing the agonies of serious strife within the family.

I perhaps do not need to remind Members of the Committee of the high degree of conscience demonstrated in this debate and of the training which we all share through the moral heritage which is ours in common. In the Ten Commandments, side by side with each other, we have the law, thou shalt not kill", with, thou shalt not commit adultery". We believe that there is no difference between killing a human being and killing a marriage. Therefore, in the basic set of laws that have governed the progress of our civilisation to the present day and will, I am confident, continue to do so, an association is made that should be realistically appreciated; that is, that the worst offence that can occur against the stability of the whole of society is to allow offences to be committed against oneself and one's partner that are tantamount to murder.

If we try not only to instruct our children but set an example by creating here in this Chamber the reverberation that will eventually distribute echoes into every home in this country, we may succeed ultimately in reducing the enormous weight of casualties and have homes out of which will come a new generation of youngsters proud to be part of a society which is, creative, loving and whose promises and pledges are enduring for life.

9.15 p.m.

Lord Hylton

I agree wholeheartedly with my noble friend Lord Jakobovits. He was absolutely right to emphasise the importance of preparation for marriage. He put it so well, that it is a duty which is incumbent not only on the parents in the first place, but also on the Churches as regards their own faiths and congregations.

I would like to go one small step further. We need to work out a secular equivalent of the work of believing parents and Churches which have an active and faithful membership. We need to find some method of preparing young couples who have no particular beliefs and who do not belong to any existing faith or religion. I speak with just a little experience although it is now of some years ago. In the late 1960s and early 1970s, I was involved in London in preparing engaged couples to face the rigours of the housing market as it presented itself, with all its problems, in those days. Very often we had to convince young couples who had not given the matter much thought, that it was more important to secure a lasting and potentially permanent roof over their heads rather than to buy the very latest thing in furniture or household gadgetry.

Perhaps I may move on from that to thank and welcome what the right reverend Prelate the Bishop of Oxford is proposing in Amendments Nos. 163A and 163B. The definitions of marriage support services and marriage counselling are essential to be had on the face of the Bill. It may perhaps be that the particular definitions put forward in these two amendments are not absolutely perfect and are capable of improvement, but I strongly urge the importance of having adequate and satisfactory definitions of those two matters somewhere in the Bill.

I turn to Amendments Nos. 154, 162, 162A and 163 in various names. I do so because I spoke briefly last night when we were discussing reconciliation. I tried then to draw attention to the resources that undoubtedly will be required if comprehensive and national marriage support and advisory services are to exist and which will be available to all those who need them. I strongly suspect that that is not the case at the present time.

I invite the noble and learned Lord the Lord Chancellor, when he replies, to say something either on this group of amendments or possibly at a later stage, about what he considers is likely to be available in the way of resources for this very important work. In Amendment No. 163 the right reverend Prelate proposes that counselling sessions should be freely available. That is something on which perhaps there is scope for a variety of opinions. It may be that the relatively rich or reasonably affluent can afford to pay something towards the cost of the services that they will be receiving, but there can be little doubt that both the training of the personnel providing the services and their supervision while in post will be very costly exercises. Money for them will have to be found from somewhere. This is a most important group of amendments.

Lord Elton

As the noble Lord, Lord Hylton, specifically mentioned my amendment, Amendment No. 162A, which, like many other amendments which have now been discussed, falls within the next grouping, I hope that I too may graze in those pastures. It may be that my noble and learned friend will move his amendment, Amendment No. 162, and I hope that he will forgive me if I anticipate that by speaking to my amendment, which is an amendment to his. I address only the principle, not the mechanics—that is my excuse.

The noble Lord, Lord Jakobovits, made a most stirring speech in which he pointed out that the answer to the ill to be addressed lies largely outside the Bill. However, I tried in my amendment to point to an area which is relevant to this Bill and where the sense of the alarm that ought to be felt can to some extent be answered.

A year or two ago I chaired a committee of inquiry into discipline in schools, which ranged rather wide. Our attention was drawn to the apparent increase over the years in violence and disorder among pupils arriving in schools, and to research which attributed that to the children's upbringing and to the quality of the marriages in which they had been brought up. It is self-evident—is it not?—that some aspects of parenting are instinctive, but that most are learned. We observed an increasing and worrying number of children in our schools with single teenage mothers, some of whom were themselves the children of single teenage mothers. It seemed to us that there must be some way of breaking the cycle which is otherwise self-perpetuating.

In chapter 5 we made a couple of recommendations about what might be done. Recommendation No. 69 was that the Secretaries of State should ensure that education for parenthood was fully covered as a cross-curricular theme in the national curriculum and that governors and head teachers should ensure that education for parenthood was fully covered in a school's personal and social education programmes.

We then went beyond our brief and in Recommendation No. 70 suggested that the Government should develop a post-school education strategy aimed at promoting socially responsible parenthood. I do not think that that recommendation was ever acted on. The situation is now more urgent than it was and given that the report was well received by the Government at the time I hope that they will revisit this matter in the near future.

Although this is the Family Law Bill, the Bill is concerned primarily with proceedings for divorce. Therefore, I suppose that I should discuss first the question of preparation for marriage. Again, I entirely agree with the noble Lord, Lord Jakobovits, that it is no good rushing to the fire with a bucket when the house has burned down; you have to take away the matches or provide a fire extinguisher in the house to start with. The first thing that we have to do is to teach people what marriage is about. Even that has an element of the classroom in it because marriage is about human relationships, one with another. In the same chapter of our report we discussed the fact that children were entering reception and nursery classes insufficiently educated within the family to be able to have. conversations or to play with their contemporaries. That is a disaster and it must be tackled. Those children will eventually become young married couples, so the problem has to be tackled in the school.

As this matter is largely still not understood or appreciated, the focus of my amendment is to ask my noble and learned friend, when he moves Amendment No. 162, to say that he will use some of the resources which he will be acquiring thereby not only for, research into ways of preventing marital breakdown", but also for research into, preparation for marriage and preparation for parenting". We must research how that education can be properly and effectively given. It is, as the noble Lord said, an emergency.

Baroness Faithfull

I wish to make three brief comments. First, I support the recommendations made by the right reverend Prelate the Bishop of Oxford. To take up a point made by the noble Lord, Lord Hylton, I am worried about finance. I am sure that my noble and learned friend must be also. I understand that Relate, for instance, charges people for its services. Will it continue charging them? I agree with the noble Lord, Lord Hylton, that those who cannot afford the service are not always receiving it at the moment.

My second point relates to accountability. I shall be moving Amendments Nos. 164 and 171 regarding the mediation service, and the whole issue of accountability; that is, supervising the training and running of the organisation.

The third point relates specifically to my Church. There should be somewhere, such as Leeds Castle, so that everyone who is to get married in church can spend a week on a course. That is what would probably put it on the map.

Baroness Young

I support the amendments in principle. I am sure that they are in line with what we wish to see, which is the buttressing of marriage. If public money is to go to any of these organisation we want to ensure that they are organisations which believe that marriage is what people should be in, and not one of a series of alternative lifestyles. I find the name Relate an unfortunate one because it suggests that marriage is just one of a series of alternative lifestyles. If public money is to be used we want to be sure about where it is going.

Secondly, in the discussion about schools if we are asking teachers to do this work we must bear in mind that it is a tricky business. In a school one-third of the pupils will be from broken homes. I should not like to comment about the number of staff who are divorcing. It is difficult to ask people to conduct a great many lessons in marriage. It is not an easy proposition. We must be very careful what we are saying before we leap into doing that.

Baroness Hamwee

We seem to have to have moved on to the content of Amendment No. 162 tabled by the noble and learned Lord the Lord Chancellor. I wish to ask him one point which he may care to answer in response to this debate or when he moves that amendment. In proposing grants in connection with marriage support services, did he consider "family support services" as an alternative to that description? I ask that in the light of the debates the Committee has had about the importance of taking into account the position of the children of a marriage. I suspect that my concerns will be catered for by the description "marriage support services", but I should be interested to hear the noble and learned Lord's comments on support for families as well as marriage.

Lord Stoddart of Swindon

We seemed to have strayed on to the next group of amendments. To save the time of the Committee I want to make a few comments about Amendment No. 71B. I agree with the principle of marriage counselling provided that the counselling is designed to save the marriage. I agree with what the noble Baroness, Lady Young, just said. It is important that that should be the objective.

I also believe it is absolutely essential that the people who undertake the counselling are not qualified simply by examination. I wish to be assured that the people who undertake it will be qualified by experience too. Experience of life is necessary in order to counsel people on keeping their marriage together. I hope that those two aspects will be borne in mind; that is, not only a professional qualification but a qualification of experience and common sense.

Finally, I greatly welcomed the speech of the noble Lord, Lord Jakobovits. I am sorry that he has been unable to speak in previous debates. I never thought that I should find the message coming from the Synagogue more acceptable in many respects than that coming from the Christian Church.

9.30 p.m.

The Lord Chancellor

I too welcome the speech of the noble Lord, Lord Jakobovits, in which he associated himself with the speeches that have been made in these matters by others, including those from the Bench of Bishops.

We have before us an extensive group of amendments. I shall try to deal with them as best I can in the way in which they were raised. Perhaps I may first try to deal with the group at which we are formally looking; that which begins with Amendment No. 64. I have already dealt with some of them—

Lord Simon of Glaisdale

So far as I am concerned, my noble and learned friend has dealt with that group entirely satisfactorily.

The Lord Chancellor

I am glad to know that I am giving satisfaction in some quarter as regards at least part of what I have to do. I am grateful for that. However, I have not yet had an opportunity to deal with some amendments within the group which were spoken to by the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Oxford. One or two others have not been mentioned particularly but I shall try to skate over them.

As regards Amendment No. 69 and the point made by the noble Baroness, Lady Seear, I should like to. provide a system in which the information sessions are conducted in circumstances as congenial as possible. I take account of the fact that the way in which the sessions are provided is extremely important. If the sole source of information is a provider, in my view the person needs to be extremely balanced. That is why, on the whole, I am moving towards a situation in which the various providers of services are allowed to give their own information. I believe that a video presentation may be the most effective way of doing that because they can then say what they believe they are able to provide.

As regards Amendment No. 71, the right reverend Prelate said that those attending information sessions should be offered a counselling session with an approved marriage counsellor. I intend the information sessions to include information about the marriage counselling services that are available. The word "approved" is slightly difficult for me. I anticipate that grants will be given to organisations offering such services with some system of monitoring. I wish to ensure—and I believe that I am echoing the various anxieties expressed, for example, by my noble friend Lady Young—that if public money is involved what is given is reasonably effective for the purpose for which it is given. Therefore, I would not be inclined to approve individuals in that way, or indeed organisations, except in so far as they might be awarded grants. On an award of a grant I would wish to test that they had arrangements in place to monitor the success of the operation because I would be accounting for public money.

The next one goes one step further and suggests that the counselling offered should be free. Obviously, I am very anxious that any resources I get are used to the best effect. Your Lordships will know this is a competition which one has to engage in yearly and quite a difficult matter it is, because the Government are faced with so many priorities. Many people who would wish t6 have counselling are quite able to pay for it; therefore I do not think that it should be a condition written into the Bill that the counselling session should be free.

There is another consideration. The noble Lord, Lord Jakobovits, mentioned most effectively the need to take action early. If it was the case that the counselling session before a divorce process—the one which I am able, as it were, to have some control over—was to be free, whereas the counselling sessions one was able to get earlier had to be paid for, that would put rather an unpleasant emphasis on the later ones. On the whole, if I had enough money, which is always a big question, I would prefer to encourage people to go early by making the earlier sessions free and the later ones perhaps not so free, because if the people did not come until awfully late it becomes more difficult and so perhaps the counselling should be made more costly. However, the point is that it would be an undue restraint on the need to use the money effectively.

The next amendment that I need to deal with is Amendment No. 73. It is associated with one or two other matters. Regarding the requirement to make regulations which shall deal with various matters, that I think is a matter of form. What one puts into it—and my noble and learned friend Lord Simon of Glaisdale has from time to time commented on that type of power—are the two essentials really. These are the need to prescribe time and place and so on, and also the need to give information in writing. I think that information packs, as well as direct personal information, are wise things to have because experience shows that a combination of these is often the most effective step.

The identification, qualification and responsibilities of an accredited information provider might well arise. If I am able to have the actual attendant more or less a formal person, obviously that would not be necessary with a video and some formal attendance. But I would certainly think it most important to ensure that the arrangements for the provision of information is effective and responsible.

Turning to Amendment No. 79, in this section "relevant information" means information about the benefits of marriage counselling, about the emotional, psychological, financial and legal aspects of separation and divorce and their effect on the parties and any children of the family. Obviously, these subjects would require to be covered and also, for example, the availability and nature of legal services, advice, representation and so on, together with various other possible services as well as marriage counselling that might be relevant.

I have no quarrel at all with the need to consult. I would not make regulations in this kind of area without wide consultation and I think it would be right for me here, since the consultation point is mentioned, to acknowledge the terrific help I have received personally from a great range of organisations, not least from all the Churches in addition to many other organisations. The noble Lord, Lord Jakobovits, has been very kind to me in giving me the benefit of his advice at various stages. I have had from many sources almost more advice than I could cope with, but I value it all. Of course it is not all to the same effect, I might say, and there is no unanimity of advice. There is a degree of variety, and indeed great variety, and I should like to acknowledge the help I have had from that.

I do not believe that we have had particular reference to Amendment No. 140, which is tabled in the name of the noble and learned Lord, Lord Archer of Sandwell. However, we did take account of it in our earlier discussion on the form of the information sessions. Obviously, I would want to take account of the substance of that amendment and the way that I would try to handle such a matter.

I now turn to the second group of amendments. I do so because I believe that practically all of them have now been referred to in some way or another and it may save a little time—which is obviously at a premium—if I were to speak to them. I have already said in principle what I have to say about Amendment No. 71B, which is tabled in the name of the right reverend Prelate.

I am anxious to keep open as far as possible the nature of the organisations to which grant might be payable. Referral agencies are sometimes useful. Indeed, some of them provide help lines which can provide people with information about the various services that might be available. The ChildLine is an example of that in relation to children and there are other types of helpline available. Indeed, I might find it useful to give grants to such an organisation which might not specifically fall within the type of service under discussion. I see that the noble Baroness wishes to intervene. I give way.

Baroness Seear

As regards what the noble and learned Lord said about charging and free services, did I understand him to say that it would really in a sense be—and I do not use the words—pejoratively "means tested", and that those who could pay would pay? Alternatively, is the noble and learned Lord really saying that everyone will have to pay something? If that is the case, especially at the stage at which the divorce is pending when people are thinking very hard about how much money they will have, I believe that a great many people will decide not to have counselling if they have to pay for it. While I quite agree that earlier on in the process is a better time to take counselling, sometimes those concerned have not done so at that time and the success or otherwise of saving the marriage may depend upon such counselling. Will that facility not be available free to anyone?

The Lord Chancellor

At present, some of the organisations provide such assistance free to some people. They then have a sliding scale of charges which depends to some extent, rather in a rough way, on the financial situation of their clients. I certainly would wish to take such matters into account when considering whether grants should be made.

The last thing that I would want to do in the area is to have too detailed a system of regulation. I do not believe that the Government would be in a position—and, indeed, it would not be wise—to try to do so. After all, the Churches of many religious organisations which undertake marriage preparation have such a system. I would leave the responsibility for what they do to the people who have been assigned the task and take account of the nature of the arrangements that they make. For example, some organisations invite a donation. That is another way of dealing with the matter. I should like to keep the system as flexible as possible.

Baroness Elles

I have two points that I should like to raise with my noble and learned friend. They concern the information officer, so to speak, who will run the session. First, I presume that that person would merely be an administrative officer who would provide information but not give specific advice? Can my noble and learned friend give me either confirmation or denial on that point?

Secondly, such an administrator—or whoever it is—will give the information to an individual, whether it be in a group session or whatever. However, someone may come along and say: "I want to get a divorce. Can you please give me the information regarding who I should see?" After he or she has been to the information officer, presumably there is no obligation to do anything else but to make the statement? That is how I read Clause 8(2). I absolutely agree with the noble and learned Lord, and others who have spoken, about the need for marriage counselling; and, indeed, albeit at an early stage where there is property involved, about the need for legal advice as regards the children. Is it obligatory to see any of those people before making the statement? Further, how does that fall within Clause 8(2)?

If I have raised this matter at the wrong time, I apologise to my noble and learned friend—and he may like to answer later—but I think that it is very important, while we are discussing this clause, to define what the role of the information provider will be and the relationship between that provider and the person who will give the genuine advice or counselling that the party might need.

9.45 p.m.

The Lord Chancellor

My noble friend is right about the information provider that I have as my model, as it were. Even with that, one has to be quite careful because one can provide information with different emphases. That is why I have been rather keen, if I can, to at least have as one of the models for the trials that we will have on this aspect of the Bill a system under which the people providing the various services—the lawyers, the marriage counsellors and all the other people who may feel that they have an input to offer—are able to make their own presentation so that the emphasis, as it were, will come from the people explaining what they have. Then we will try to put it together in, perhaps, a video, or something of that kind, which contains these messages. One could have in more input personally to the editing of that than one could have a whole lot of individual sessions, conducted by individuals, where you are very much in the hands of the individual as regards emphasis.

The second point is that the best that I can do is to ensure that people get all the information available about the services on offer. You cannot compel them to take any particular service—that must be a matter for them—just as you cannot compel them to do other things that you might think was in their interest. They have to see to that themselves. After all, they are people who have been married, who have gone through a marriage service in church or at a registry office. The emphasis should be that we provide them with all the information that they need, as effectively as we can, and then leave them to use it, and use it to the best advantage that they see from their point of view.

I do not think that compulsion is likely to be useful at that stage. Of course, there is power in the court to direct that people should attend and be told about mediation if, for example, in the course of the process the court feels that they are trying to litigate things before they have had a proper opportunity of considering, or have not considered fully, the advantages of doing it by mediation. That will be a power in the Bill, but, otherwise, it will be a matter best dealt with in the way I have just described.

I was just going on to mention my own amendment, Amendment No. 162, which says: The Lord Chancellor may, with the approval of the Treasury, make grants in connection with "(a) the provision of marriage support services. The noble Baroness, Lady Hamwee, asked me whether I meant to include children in that. Yes, marriage support services include where there are children; they take account of that. I am inclined to use marriage support services rather than family support services for reasons which may already have appeared.

Paragraph (b) reads: research into the causes of marital breakdown. I think this is quite important because if we are going to tackle the problem which the noble Lord, Lord Jakobovits, so forcefully drew to our attention a few moments ago, we need to look to see what is the cause of marital breakdown.

Paragraph (c) is related to research into ways of preventing marital breakdown. Many services are already in the field and dealing with these matters, and the working party, to which I have referred more than once, is looking at the extent of coverage by voluntary means of these services.

The voluntary services have a very distinguished record in this area. Many of them have raised money in difficult circumstances by their own efforts in order that they may help people who would not be able to afford the services if they had to pay the full cost. It is right for me to say also that many judges who are concerned with family cases have given of their time and effort, and I have no doubt also out of their own private pockets, to support services of that kind. That is one of the most eloquent tributes to the effectiveness of those services.

My noble friend Lord Elton has tabled Amendment No. 162A. There are problems about just how far that goes. I do not wish to duplicate efforts on education. The Department of Education and schools have responsibilities in that connection, and as my noble friend Lady Young said, that is a delicate area. Depending on the situation, it may be difficult to become too deeply involved.

Lord Elton

Will my noble and learned friend allow me to point out that I am merely asking for a commitment to undertake research? If my noble and learned friend's department is taking into its hands the whole issue of divorce, it seems appropriate that it should also take into its hands the question of how divorce might be prevented. Clearly, it would then fall to other departments to implement the results of the research.

The Lord Chancellor

Paragraph (c) of Amendment No. 162 refers to research into ways of preventing marital breakdown. If my noble friend is content to leave it at that, the coverage which I have been able to agree is fairly comprehensive. In so far as it may impinge on areas which should be left to others to implement, all well and good. I believe that that phrase is general in character and fairly comprehensive.

Amendment No. 163 in the name of the right reverend Prelate, which is an amendment to Amendment No. 162, returns to the question of free counselling, which I have already dealt with.

I am not keen to use the specific phrase "marriage support services" as suggested in Amendment No. I 63A because, as I mentioned, there may be aspects which would not fall strictly under any of the headings and yet would be useful in connection with supporting marriage.

In addition, we have to hope that the Bill will last for some time and that other possible services may be developed in the future arising out of the research referred to in paragraphs (b) and (c) of Amendment No. 162. I have no doubt that marriage counselling requires training and supervision. Those aspects would be covered in relation to any grants that would be payable to a particular organisation.

I hope that I have dealt, albeit briefly, with all the matters that have been raised in these two groupings. Subject to what I have tried to say, I certainly wish to take account of them as we go forward.

Lord Stoddart of Swindon

Before the noble and learned Lord sits down, perhaps I may ask him one short question to save him making another speech. In Amendment No. 162 he refers to research into the causes of marital breakdown and research into ways of preventing marital breakdown. Will those items take into account a wide range of influences, including, for example, the taxation and social security systems in so far as they may militate against marriage?

The Lord Chancellor

The heading of research into the causes of marital breakdown is a very general one. It would certainly be right to take account of any factor which appears to contribute to marital breakdown. One would have to take account of what action was available to try to cope with the matter.

I do not wish to extend this discussion too much. However, one of the practical questions is: at what times, at what stages in the marriage, are these crises most apt to occur? One seeks to develop services and to make clear the availability of services at those critical points—I have no doubt the earlier the better. That is why I am anxious that the work of our interdepartmental group which has produced the work so far is encouraged.

Lord Simon of Glaisdale

We have again had a most important debate on a most important aspect of the Bill. There have been a number of remarkably fine speeches in the course of the debate. I hope that it is not invidious if I mention in particular the speech of my noble friend Lord Jakobovits. I presume to say that I entirely agree with everything he said. Subject to one very small reservation, I also agree with what was said by the right reverend Prelate. I might as well get that reservation off my chest. He proposed an amendment enjoining the Lord Chancellor to consult the agencies before making regulations. I am sorry to say that my noble and learned friend was altogether too indulgent to that suggestion. I am very much against cluttering up the statute book with injunctions to Ministers to do what they would do anyway. I know that the Opposition naturally regard all Ministers as morons. We do not take so jaundiced a view on the Cross-Benches. I think it is a pity when the statute book is already too prolix and expensive to put. in quite unnecessary injunctions.

We had a most helpful reply by my noble and learned friend. On the three amendments that I proposed his reply was entirely satisfactory. He told us the sort of circumstances where he had considered liberty to prescribe necessary. Having declared them, all his actions under that head would be construed in the light of what he told the Committee. In the technical language of draftsmanship, they would be construed ejusdem generis; and I thought that that was entirely satisfactory.

The major subject on which I wished to comment on the subsequent amendment related to the charging for services. I assume that there would be no charge for the interview. I hope that I shall be corrected if I am wrong.

So far as concerns counselling, when I invoked the assistance of the National Marriage Guidance Council and its Roman Catholic and Jewish equivalents to supplement the work of the welfare officers of the court, whose function was mainly mediatory and mainly relating to children, my impression was that they did not charge although they were grateful for contributions from those whom they had helped.

Naturally, I tend to take a pro-Treasury view, but we are concerned with a fundamental institution of society. It seems to me entirely worth while devoting funds—even at the expense of other worth-while projects—to assisting people who have got into the trouble which the Committee has been contemplating. I therefore hope that, whatever happens about mediation, everything covered by counselling is not charged for. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

[Amendments Nos. 65 to 80 not moved.]

Clause 8 agreed to.

[Amendment No. 81 not moved.]

Clause 9 [Arrangements for the future]:

Lord Archer of Sandwell moved Amendment No. 82: Page 5, line 15, leave out ("One of').

The noble and learned Lord said: There always comes an end to progress of the kind we have just made. Yesterday, in introducing Amendment No. 10, I listed the other amendments which it was suggested the Committee might find convenient to debate in the group. I said that I had spared the noble Baroness, Lady Trumpington, an unnecessary intervention. She subsequently took me to task, pointing out that she never made unnecessary interventions. I fully accept that rebuke. I meant, of course, that I had spared her the necessity of an intervention. However, I may possibly welcome her guidance at this stage, if only by an approving nod. With Amendment No. 82, the Committee may find it convenient to debate Amendments Nos. 83 and 86. The next group on the Marshalled List is Amendments Nos. 84 and 89 which relate to precisely the same matter. If I am in order, I suggest that the Committee may care to debate the two groups together. I am grateful to the noble Baroness, Lady Trumpington, for the approving nod.

Clause 9 seeks to ensure that before a divorce is granted the court is satisfied that proper financial arrangements have been negotiated between the parties or that the court has adjudicated on them. As was pointed out to the Committee yesterday, that provision appears to fly in the face of the Law Commission's original proposals. It was said that it might lead to hasty and ill-considered arrangements designed simply to facilitate the obtaining of a divorce order; alternatively, that it may lead to unnecessary subsequent applications to the court. I heard what the noble and learned Lord the Lord Chancellor said about that and I do not believe that this is the occasion to debate the issue.

The amendments go to a rather different matter. In the present state of the Bill the court may be presented with negotiated arrangements obtained simply, without a vulnerable partner or, indeed, without either partner having the benefit of legal advice. Normally, in matrimonial matters the proper way to approach it is for full disclosure to be made by both parties of their financial positions and any other relevant information, the taking of advice as to the various options for achieving a just division and a formal agreement that takes account of the various provisions and future eventualities.

Of course, the parties will have the benefit of mediation. With a competent mediator that may he sufficient in many cases, but it is not difficult to envisage a situation where their property and financial affairs are complicated, or one party is not disposed to reach a reasonable settlement or attempts to foreclose the options by disposing of the assets. In that situation negotiations may take place, if at all, very much at arms length. There may be a need not just for a single mediator but for legal advice to be provided separately to each of the parties.

In such a case, if a fair result is to be achieved—one that both parties will accept and neither party will afterwards regret—any attempt at settlement will require access to legal advice. That assumes that legal aid is available to both parties in order that they can take advice. As I understood what the noble and learned Lord said yesterday and also today, legal advice would be available to both parties and the mediator would know when it was necessary for either party to be referred for legal advice. I assume it must entail that when necessary legal aid will be available. The noble and learned Lord appears to assent to that proposition. If so, I can spare your Lordships a great deal of time.

The Lord Chancellor

That is so, as long as the parties qualify in financial terms for legal aid. Where legal advice is necessary the Legal Aid Fund at present has the opportunity to provide it, and that will continue.

Lord Archer of Sandwell

I am grateful to the noble and learned Lord. Of course, I accept the condition that they otherwise qualify for legal aid. If that is so, I can probably spare your Lordships a great deal of time. What has occasioned some hesitation on this side of the Committee is Clause 24. Clearly, that envisages that there will be regulations. The noble and learned Lord must have some idea of what he proposes to put into those regulations, but if the effect of them is that those who otherwise qualify for and require legal aid for this purpose have it, the difficulties are assuaged and I do not need specifically to move this amendment. I am most grateful to leave it there.

The Lord Chancellor

Before the noble and learned Lord sits down, perhaps I may answer the point. The purpose of the later clauses which deal with mediation is to extend the remit of the Legal Aid Board to permit it to finance mediation. We have a clause that gives a degree of emphasis to mediation. However, the general principles of the Legal Aid Act, and the references in that Act to legal advice and representation, are not affected. It is an extension of the scope of legal aid. As everyone knows, I have proposals for a more radical reform of legal aid, but so far as this Bill is concerned the present Legal Aid Act applies. What I seek to do is to extend the scope of it to include the funding of mediation, with a principle in favour of mediation where that is appropriate.

Lord Archer of Sandwell

I am grateful to the noble and learned Lord for his intervention. If Clause 24 is not intended to do more than that and to emphasise that in the first instance mediation must be the sensible option, I for one am content. However, for the purposes of this debate I beg to move.

Baroness Faithfull

As a patron of the mediation service, I should like to make just one short point. Questions have been asked about the legal position on advice given by mediators. A husband and wife who seek the services of the mediation service work out between them the legal position with regard to property, money and so on. All the cases that the mediation service work out with the family are advised to go to a solicitor to find out whether the arrangement is satisfactory. Some research was done and it was found that out of 100 cases that went to a solicitor, in only four cases did the solicitor say that it was not quite right. The other 96 cases were quite correct. The mediation service advises everybody to go to a solicitor after they have been to the mediation service to ensure that the legal position is correct.

Lord Archer of Sandwell

I am most grateful to the noble Baroness, Lady Faithfull. That reinforces the rather cheerful frame of mind in which I found myself at the end of the intervention of the noble and learned Lord the Lord Chancellor. In that situation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83 to 86 not moved.]

Lord Simon of Glaisdale moved Amendment No. 88: Page 5, line 22, at end insert ("and").

The noble and learned Lord said: I am not sure whether Amendment No. 85 was moved. There is a group of my amendments which is grouped with that one. I do not know why, except that they might all be drafting amendments. The amendments to which I want to speak are Amendments Nos. 88, 94, 156, 157 and 168.

Lord Elton

Will the noble and learned Lord tell us whether he is speaking to Amendment No. 85, which I thought had been dealt with together with Amendment No. 11 yesterday, or is he speaking to another amendment whose number I did not catch?

Lord Meston

I can clarify the position. I spoke to Amendment No. 85 yesterday.

Lord Simon of Glaisdale

Amendment No. 85 was called and a series of my amendments are grouped with it. I wish to speak to my amendment and I have indicated those which I consider ought to be grouped with it. I am generally in the hands of the noble Baroness when it comes to grouping but I hope that on this occasion she will not stop me from speaking.

My point is a very small drafting point that I can put quite shortly and without troubling the Committee to look at the Bill. This is a well drafted Bill and therefore I feel confident in asking for this point to be considered. It arises in those circumstances where one has, say, paragraph (a), paragraph (b) and paragraph (c). The style of draftmanship at the moment is strictly grammatical. The wording is: (a) … (b) … or (c)". or: (a) … (b) … and (c)". One has to look back from the last to see what is intended at the beginning. That is particularly inconvenient when the last paragraph is over the page. In each case I have put in "or" after "(a)" where it is disjunctive and "and" after "(a)" wherever it is conjunctive. All I ask is that if my noble and learned friend considers that there is anything in the point he will ask the draftsman to discuss it with his colleagues. I beg to move.

10.15 p.m.

The Lord Chancellor

The answer is yes. We have not yet reached Amendment No. 88 and Amendment No. 85 has not been moved. But the answer is yes and I hope that that may satisfy my noble and learned friend.

Lord Simon of Glaisdale

I suppose I am entitled to say thank you and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 87: Page 5, line 21, leave out from ("parties") to ("and") in line 25 and insert ("(to which no objection has been notified to the court by the other party) that—

1. (i) he has no significant assets and does not intend to make an application for financial provision;
2. (ii) he believes that the other party has no significant assets and does not intend to make an application for financial provision;").

The noble and learned Lord said: I spoke to Amendment No. 87 earlier and will consider the point made by the noble Lord, Lord Meston, in relation to it. However, I felt it right to include it as it was intimated to be a government amendment. That does not preclude further consideration of the point made by the noble Lord, Lord Meston, yesterday. I beg to move.

Lord Meston

I am grateful to the noble and learned Lord for that indication. It occurred to me also that some provision should be made for those declarations to be in some way scrutinised by the courts. I am concerned about the provision and the possibility that it may be misused. The bare declaration of one or indeed both parties that there are no significant assets and the statement that it is not believed that the other party intends to apply to the court is something which the court should look at with some care.

The Lord Chancellor

Those documents are before the court as a prerequisite of making a divorce order. The court will therefore have a chance to look at them. I do not know whether the noble Lord has any other specific point in mind. The intention is that the court will have the documents as part of the fundamental jurisdiction to grant the divorce order. If there is anything sinister about the documents or something appears to be wrong, I shall expect the court to take account of that.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Baroness Cox)

Amendment No. 88 was pre-empted by Amendment No. 87.

[Amendments Nos. 89 to 95 not moved.]

On Question, Clause 9, as amended, agreed to.

[Amendment No. 96 not moved.]

Clause 10 [Hardship: orders preventing divorce.]

[Amendment No. 97 not moved.]

Lord Meston moved Amendment No. 98: Page 5, line 41, leave out ("the other") and insert ("either").

The noble Lord said: In moving Amendment No. 98 I shall speak also to Amendments Nos. 103, 110, 111 and 117. These amendments are the first which take us into Clause 10.

Earlier today the noble and learned Lord the Lord Chancellor pointed to the potential use of Clause 10 to protect those who do not consent to divorce in special circumstances. Amendments Nos. 98, 103, 110, 111 and 117 are drafted to deal with the problem of those for whom a secular divorce does not terminate the marriage in the eyes of their specific religious group and for whom a religious divorce may also be required. As I understand it, this is a particular problem in Islamic and Jewish law. The arguments were rehearsed briefly by myself and more fully by the noble Lord, Lord Jakobovits, at Second Reading. I hope that it is only necessary to repeat them briefly.

It is perhaps important to appreciate two points, which I understand to be common to both Moslem and Jewish marriage law. First, the observant cannot remarry without a religious divorce; a secular divorce is not enough in the eyes of their particular faiths. Secondly, in both cases it is only the husband who can initiate the procedure and therefore, by that very fact, the wife is at some disadvantage. The result in practice is that the husband's willingness to initiate the procedure becomes a bargaining counter in the financial proceedings. I can tell the Committee from experience, acting for Jewish clients, of long sojourns outside the door of the court, wandering up and down the corridor, negotiating in effect the price to be paid for the husband to initiate the GET procedure. Therefore, it seems necessary in this Bill to take the opportunity to right what many regard as an injustice. It will enable a true, clean break to be achieved and both the parties to have the right to remarry according to their religious beliefs. It gives the wife in particular the right to negotiate on equal terms.

Apart from the practical problems which I have described and my experience of it in practice—and I know of other matrimonial practitioners who have experienced the same, one can almost say week in and week out—very recently there has been a clear and scholarly analysis of the problem in a book entitled Family Law and Religion by Carolyn Hamilton. Reading that book I realised that this problem was before Parliament only recently in the sense that a provision was introduced for consideration by another place in 1984 as an amendment to what was then the Matrimonial and Family Proceedings Bill. The amendment was introduced to aid both Moslems and Jews in obtaining a religious divorce, but apparently the amendment was withdrawn because the Government, in the form of the then Solicitor-General, suggested that the provision was not suitably drafted for introduction into that particular Bill. It was suggested that consultation would follow with the relevant religious bodies and that the issue would be reviewed by the Government for future action.

I do not know what has happened as regards the Government in the intervening 10 or 11 years, but I can say that the way in which these amendments have been brought back before Parliament show that considerable care has been taken in their drafting. I hope that an opportunity can now be taken to address the imbalance which I suggest exists for certain categories of people. I beg to move.

Lord Jakobovits

I indicated in my speech at Second Reading that an amendment would be moved to try to overcome what has proved to be a very grave cause of distress and therefore should invoke the hardship bar in a very specific way. During our detailed discussion of the Bill I intimated that an amendment to that effect would be moved in Committee. I am most grateful to the noble Lord, Lord Meston, for having drafted as well as presented this amendment. We have consulted a number of other legal, rabbinical and communal experts to whom we are immensely grateful for their efforts to find a solution to what is at present still an agonising problem.

The need for this amendment arises from a strange anomaly in the law as it stands. The Marriage Act 1836, followed by all subsequent Acts, right up to the latest one in 1949, includes the following provision: The Society of Friends, commonly called Quakers, and also persons professing the Jewish religion, may continue to contract and solemnise marriages according to [their] usages; and every such marriage is hereby declared and confirmed good in law, provided that the parties … be both of the said society or both persons professing the Jewish religion respectively; provided also that notice to the registrar shall have been given". That is the wording of a law that has now existed for over a century and a half.

In other words, the civil law expressly recognises a synagogue marriage as legally valid, and no separate civil marriage is required, such as is required in some other countries, for example, in France where I was married and where I had to go through a separate civil marriage ceremony in the Mairie or the town hall. Here, the state accepts the synagogue ceremony as constituting both the religious and the civil bond between the parties.

Yet in dissolving that dual bond by divorce, the law requires only the civil contract to be revoked while leaving the religious bond intact. If thereafter one of the parties remarries, content with just a civil divorce, the other spouse, who may regard the religious marriage as still valid, cannot remarry until a religious divorce is obtained; and if the first party refuses that, the second may remain what we called "chained"—that is, tied in a limping marriage, unable to be released until the religious bond is severed. That can lead to either lifelong loneliness or to blackmail and extortion.

That situation can affect either spouse since the termination of the religious bond requires the consent of both, just as the marriage contract can be established only with the agreement of both sides. In fact, I am informed by the Jewish authorities dealing with that situation in this country that at present about one-third of the "chained" spouses are men and that two-thirds are women.

The law in question is not ordained by rabbis, but is biblical. The relevant verse, verse 2 of chapter 24 of the Book of Deuteronomy, reads: and he shall write for her a deed of divorcement and give it in her hand", and no rabbi is authorised to cancel or to override any biblical law; nor can a contract in principle be terminated except by the parties who established it.

The problem is not due to any anomalies in Jewish law. Were we to have exclusive jurisdiction in matrimonial matters, there would be no difficulty since, in general, we would merely refuse to administer a divorce which does not enable both parties to remarry. It is hoped therefore that the proposed amendment will achieve that amelioration of unspeakable hardship occasionally resulting from the law as it stands.

Finally, the Committee may be interested to know that similar legislation has recently been introduced in several other countries and states, such as the USA, Canada, South Africa and Australia.

10.30 p.m.

Lord Archer of Sandwell

Since I adverted to this matter on Second Reading, I intervene merely to say that I support every word that has come from the noble Lords, Lord Meston and Lord Jakobovits. I think that the noble and learned Lord the Lord Chancellor indicated on Second Reading some sympathy with what was said on this issue. I therefore do not propose to trouble the Committee further.

Lord Simon of Glaisdale

My recollection of the history of matrimonial law is that marriages of Jews and Quakers have always been outside the main code. They were exceptions when all marriages had to be in a church or chapel of the Church of England. They remained outside when, in 1836, marriages in register offices were recognised. They were always exceptional. It seems to me that an exceptional case has been made out here.

Baroness Hamwee

I have three amendments in this group. I do not intend to move Amendment No. 101 which, in drafting, was linked with amendments we debated and disposed of earlier.

I hope that does not detract from the serious points on this clause which have been made and with which I associate myself. Amendments Nos.111A and 114A have been tabled merely to explore the difference in wording between subsections (2) and (3). In one case there is a reference to the "dissolution of the marriage" and "the marriage to be dissolved", and in the other to "dissolving the marriage" and "to dissolve the marriage". They are different words. I am interested to know the difference imported by them.

Baroness Young

I thought that it might be for the convenience of the Committee were I to speak to my amendments which are grouped with Amendment No. 98; that is to say, Amendments Nos. 99, 104, 106, 108 and 115. This is an important group of amendments. The amendments deal with the hardship bar. Of course the present law includes special safeguards in the case of an innocent spouse who does not want a divorce: first, five years' separation; and, secondly, there is a bar where there would be grave financial or other hardship, and where, as I understand it, in all the circumstances it would be wrong to dissolve the marriage.

As I understand it, some 6 per cent. of divorces are granted on the basis of a five-year separation, but in 25 years the hardship bar has been accepted only once, and that was based on grave hardship. There have been few reported cases on financial hardship. The purpose of all the amendments is to strengthen the bar and to help resolve the situation.

I have received advice from Dr. Cretney of All Souls College, Oxford who has written to me to explain why the hardship bar has not operated. I am sure that my noble and learned friend will be well aware of the legal reasons.

It is so important that the hardship bar should work arid help that I have tabled this series of amendments. I support the amendment moved by the noble Baroness, Lady Hamwee, which covers the same point. My Amendment No. 99 gives a safeguard to a spouse who does not consent to a divorce. On application to the court an order can be made preventing a divorce for a period of two years. Amendments Nos. 104 and 105 bar on grounds of grave hardship to the children of the marriage. Amendment No. 108 extends the hardship bar, taking in the welfare to children. It also bars divorce on the basis of conduct, loss of financial benefits or impediment to a career. Amendment No. 115 substantially strengthens the hardship bar. The proposed subsection (3)(a) sets out the circumstances in which a divorce could be barred. Those circumstances are where a divorce would be prejudicial to the interests of children; where one spouse suffers from ill-health or disability or injury; where divorce would be contrary to the religious beliefs of one of the parties to the marriage; and where one of the parties seeks a further period of conciliation.

At this late hour I will not go at length into all of those matters but I hope that my noble and learned friend will consider them. I believe that this is a most important part of the Bill which, apparently, has been previously inoperative. There are a number of amendments, none of which may be quite right. I believe that the amendment of the noble Baroness, Lady Hamwee, covers the same point. It would be helpful if my noble and learned friend were prepared to look at the appropriate safeguard to put into this part of the Bill.

Lord Irvine of Lairg

I believe that it comes naturally within this rag-bag of amendments, if I may put it that way, for me to speak to Amendment No. 102, which stands in my name, immediately after the noble Baroness, Lady Young, has spoken to the amendments standing in her name. Even at this late hour it gives me particular pleasure to be able to make what I regard as substantial common cause with her on this issue. I certainly join with her in inviting the noble and learned Lord to consider the way in which the hardship provisions currently work. The purpose of my amendment is to make a specific proposal in that regard with a view to strengthening them.

As I have indicated, I do not shrink from the proposition that divorce should be made harder to obtain where justice requires that to be so. What I have suggested in Amendment No. 102 is the taking out from the current Bill of the statutory language indicated and the insertion of the new language: significant detriment to the welfare of any child of the family; or … serious prejudice to the other party". The noble and learned Lord may say that that is to no purpose because the same position obtains under the present law—that is to say, under the Matrimonial Causes Act 1973. The words which I suggest should be taken out of Clause 10(2)(a) and replaced by the words in this amendment are the very language of the present statute. I am suggesting the removal of the language of the present statute.

However, I believe that my intelligence is the same on this subject as that of the noble Baroness, Lady Young. I invite the noble and learned Lord to consider that that might be precisely the mischief that needs to be eradicated. It is the mischief in the current statutory provision, the current statutory language, which is carried into the Bill. All the intelligence that I have is that the current statutory language has proved to be something of a dead letter.

If I may remind the noble and learned Lord, Lord Simon of Glaisdale, who I am sure needs no reminding, of what he has said on any previous occasion in our discussions on this Bill, he observed on Second Reading (at col. 748 of Hansard) that it is only once since 1970 that the court has invoked that statutory provision and has withheld divorce on that ground. There may be a very small number of examples, but I understand them to be infinitesimal. What the noble and learned Lord, Lord Simon of Glaisdale, said on Second Reading accords with what family law practitioners have told me.

Basically, the courts have construed the present hardship provisions on the basis of asserting a public interest in dissolving marriages which have become an empty shell and have in effect disregarded grave financial hardship as a ground for not dissolving marriage. In Mathias in the Court of Appeal, a woman argued that her marriage should not be dissolved because she would lose an army and a state widow's pension. The Court of Appeal held that there was a public interest in dissolving marriages which had become an empty shell and that the prejudice she alleged did not qualify as "grave financial hardship". Therefore the purpose of this amendment is simply to offer a suggestion to the noble and learned Lord for his consideration.

The primary provision in the Bill is that concluded arrangements for the future must be in place before the court can order divorce. That is Clause 2(1)(c). The arrangements are those set out in Clause 9 but that is wisely made subject to exceptions in Clause 9 (5), and the relevant exception is at page 38 in Schedule 1 at paragraph 2(d). It is from that language that I am borrowing for the suggestion that I make in this amendment. Even although there are no concluded financial arrangements after the expiry of the year for reflection and consideration, still the court may grant a decree if a delay in granting a decree either, would be significantly detrimental to the welfare of any child of the family,"— I think that accords with one of Lady Young's concerns—or, would be seriously prejudicial to the applicant". That is the criterion for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded.

The suggestion that I offer the noble and learned Lord, since my intelligence accords with that of the noble Baroness, Lady Young, that the current provision has become something of a dead letter, is that we should adopt as the relevant criterion for denying a divorce after expiry of one year the same criterion as I have described for overriding the basic requirement that no divorce should be granted until financial arrangements are concluded; namely, the detriment to a child or prejudice to the other party.

The reason for incorporating the language of Schedule 1, paragraph 2(d) into Clause 10(2)(a) in substitution for the existing statutory language is that Parliament should make its will plain to the judges; namely, that it desires the same test to be applied in these undoubtedly exceptional but cognate situations. That is, the criterion which the Bill lays down for permitting a divorce to go through after expiry of the year for reflection and consideration although financial arrangements are not in place. The criterion is the prevention of detriment to the welfare of a child or prejudice to an applicant. That likewise should be the criterion for withholding a divorce although the year has expired. Again, in that situation, the criterion should be the prevention of detriment to the welfare of the child or prejudice to the other party. All the intelligence that I have received is that the previous statutory formula does not achieve its intended effect in practice. Therefore, I offer the suggestion that I have just explained to the noble and learned Lord.

10.45 p.m.

Baroness Elles

In view of what the noble Lord, Lord Irvine of Lairg, and indeed my noble friend Lady Young have said, perhaps I may speak briefly to Amendment No. 115A which is tabled in my name. I believe that there is very little difference between us. My amendment very much accords with the views expressed by the noble Lord, Lord Mishcon, earlier this afternoon. He said that there would be certain special considerations which could be dealt with in Clause 10, especially in those cases where one of the parties did not consent to a decree of divorce.

As the noble Lord, Lord Irvine of Lairg, and my noble friend Lady Young have indicated, there are certain justifiable reasons which could be taken into account by the court whereby discretion could be used to decide whether there should be a decree preventing the order of divorce or, alternatively—following Clause 10(3)—whether there should be an application for the cancellation of an order preventing a decree of divorce.

My amendment does not seek to delete those provisions in subsections (2) and (3), but proposes to add to the clause the provision that, For the purposes of subsections (2) and (3)", certain circumstances should be included and taken into consideration. They are not exhaustive, but they could be included. The first is, the welfare of the children of the marriage", to which the noble Lord, Lord Irvine, has already referred. I have then included, the conduct of the parties", where there might be specific circumstances. Again, I shall not go into detail tonight because I think such matters have been fully discussed during the course of our debates. However, that really refers to the kind of thing where it would be very harmful either for the children, or impossible for one of the parties, to go through a divorce at that particular time. Finally, I have inserted the consideration of, the loss of any financial benefit, or benefit in kind". One could perhaps imagine a situation where someone is taking a course of education in order to further a career and the prospect of a divorce at that particular time could, in fact, damage the possibility of that person continuing for, say, three months, six months or whatever it might be. Such a provision would allow for a decree to be delayed.

I referred to the question yesterday of whether it is better for children to be in a home of high conflict rather than be in a one-parent family or with step-parents. In that respect, I have added a rider to my amendment that, in the absence of clear evidence to the contrary by [them] remaining under the care … and control within the marriage of their two natural parents". Of course, that provision would not be enforced. However, it would be something that the court could take into consideration where it is clear that the children would benefit and prefer to be with their parents; and, indeed, where the parents could come to an agreement at that stage of the proceedings. It is not an obligatory condition; it is a provision that the court would be free to take into account.

Lord Archer of Sandwell

Now that it is clear that we are debating all the amendments in the group, perhaps I may speak again and say a few words about Amendment No. 116, which is tabled in my name. I believe that I can spare the noble and learned Lord the Lord Chancellor some trouble in that respect. The amendment was tabled in consequence of what I am now satisfied was a misconstruction of the Bill. It was designed to put right a problem which does not exist.

Lord Hylton

I listened to the noble Lord, Lord Meston, and to my noble friend Lord Jakobovits speaking to their series of amendments with considerable sympathy. That was somewhat increased by the memory of a conversation that I had in Jerusalem nearly four years ago with a distinguished member of the Parliament of Israel who is now a Minister in the present government. She explained to me the extreme difficulties that arise in Israel over the status of women.

Well, be that as it may, perhaps I may, as a complete layman in such matters and in no way a practitioner in such difficult areas, ask the noble and learned Lord the Lord Chancellor whether he will deal with the following question in his reply to the debate. In the event of the amendments in the names of the noble Lord, Lord Meston, and my noble friend Lord Jakobovits being accepted, can the noble and learned Lord say whether they would be undermined, and the ground cut from underneath them, by the series of amendments to which the noble Baroness, Lady Young, spoke?

Lord Simon of Glaisdale

I speak to my Amendment No. 100 which seeks to leave out the word "grave". The background was referred to by the noble Lord, Lord Irvine of Lairg, referring to my speech on Second Reading.

We now have divorce by unilateral repudiation on one year's notice. As I ventured to argue on Second Reading and earlier in this Committee, that is inherently liable to cause injustice to married women. A married woman in the situation described in the passage I cited from David Morrisey's book might well have—many have—sacrificed herself in the interests of her children, aged herself by bearing children and allowed her husband thereby to go out, to his economic advantage. Then, when he turned to somebody else—because his original passion faded and he was renewing it with somebody else—he could cast off his first wife. That is obviously a situation of injustice.

The provision in the Bill came into the law for the first time in 1969 in reference to divorce after five years separation. The sort of argument I put forward, and which has been put forward elsewhere in the debate, was then raised. The object of the 1969 Act was to facilitate divorce, in which it certainly succeeded. Therefore there was stern resistance to the removal of the word "grave" before "hardship" with the result that has been explained. It has been virtually a dead letter. Even financial hardship has been hardly used.

The situation is far more serious now where there is unilateral repudiation not after five years but after one year has elapsed from notice.

My amendment merely omits the word "grave". One asks why should any woman who has committed no fault at all but merely ceased to find favour in her husband's eyes—a husband who has preferred to cast his favours on another—be expected to suffer hardship before he is allowed to go on his way?

I prefer the amendment of the noble Baroness, Lady Hamwee, to which she has spoken. That amendment refers to "financial prejudice". Although I am attracted by the amendment of the noble Lord, Lord Irvine, I believe that the amendment in the name of the noble Baroness is preferable.

The test of hardship is an unsatisfactory one. It appeared in the Matrimonial Causes Act 1937—Herbert's Act—to which I referred earlier, which barred divorce for the first three years of the marriage. However, there was an exception for exceptional hardship and depravity. That was extraordinarily difficult to construe. Parties tended to dress up the evidence so that the hardship did appear to be exceptional, and the depravity was similarly dressed up.

The test proposed by the noble Baroness, Lady Hamwee, is very much easier for the court. Although it is true that judges are not paid to make easy decisions, they are more likely to be right when all that is required is a balance of financial advantage and disadvantage.

I have said that I shall move none of my amendments, but I shall be grateful for the comments of my noble and learned friend.

11 p.m.

The Lord Chancellor

This is a very important and rather varied group of amendments, but I shall not use the phrase that the noble Lord, Lord Irvine of Lairg, used about them.

I regard Amendments Nos. 111A and 114A in the name of the noble Baroness, Lady Hamwee, which are drafting amendments, as improvements on the Bill and am happy to accept them. Therefore, when we reach them I shall be happy for the noble Baroness to move them and I shall advise the Committee to accept them.

I should like to have an opportunity to consider all of the other amendments. There are groups of subject matters. The subject matter of children is an important one. I want to take this opportunity to offer the Committee a very full account of the literature on children and divorce which I have had available to me. Since it is a comprehensive list of the literature it would be inadvisable for me to read it out now. Therefore, I shall offer a copy of the list to any Member of the Committee who asks me for it, either now or later, and I propose to place a copy in the Library.

At the invitation of my noble friend Lord Coleraine, I read from The Exeter Family Study earlier. One could read the whole report with profit, but there is a passage on page 54 relating to conflict which I should like to mention expressly. It states that, parental conflict has proved to have by far the closest association with any difficulties experienced by children. The general conclusion to be drawn from a review of this literature is that high levels of conflict…are closely associated with poorer outcomes for children. Some studies have shown that measurable behavioural difficulties can be identified in high conflict families before the breakdown of the marriage, and may even largely explain any later effects of family disruption". Obviously I shall consider all the amendments carefully. It is important to consider whether practical advantage will accrue to the children by postponement of the order of divorce. I think that the positive question is the best way of looking at the matter. If we are going to go down the road of allowing the court, under Clause 10, to refuse a divorce in relation to the welfare of the children, it should be by seeking to identify a positive benefit which is likely to accrue to the children by the postponement of the order. To a certain extent, any such order is bound to have some adverse effect. The question is: can that be ameliorated to any extent by postponing its grant?

I am content to consider the amendments as regards financial matters. I am anxious because I know that when one introduces a new phrase into the law it takes quite a long time before a settled interpretation is reached. Sometimes these matters arrive at your Lordships' House and, just occasionally, your Lordships' House having reconsidered what it said before may find it possible to improve upon its previous interpretation. Therefore I am not anxious, if I can avoid it, to introduce new phrases into the law. On the other hand, there has been some reference to phrases already in the Bill which could be used, and therefore it may be that some ultimate economy could be achieved by using one of those rather than having a variety of different phrases in different places in the Bill.

As regards the amendments moved by the noble Lord, Lord Meston, the noble Lord, Lord Jakobovits, and associated with the name of my noble friend Lady Young, this is a difficult matter. The reference is to impediments in the substantive amendment which states: For the purposes of this section, where one party's ability to remarry will be materially impeded as a result of the other party's failure to remove all barriers to remarriage", and so on. Obviously these are not impediments or barriers created by the general law. They are barriers of another type. I have been familiar with this problem almost from the time that I became Lord Chancellor and the noble Lord, Lord Jakobovits, came to see me about it; and I have received representations and have had meetings with a number of those concerned with these matters, including the noble Lord, Lord Meston, the noble Lord, Lord Mishcon, and others. Many have suggested to me more specific amendments. This is a carefully and very generally drafted amendment which in some ways makes it easier to consider incorporating it in the Bill because it does not refer to any specific difficulties.

Members of the Committee will appreciate that I am anxious not to create unnecessary litigation. One of the purposes of the Bill is to do what we can to reduce the risks to the relationship of parents with both their children as a result of divorce, and unnecessary litigation would be in conflict with that principle. Therefore I am anxious that if this hardship clause, the Clause 10 power—I call it that; it may be effected differently if one takes some of the amendments instead of the provision as drafted—is too wide, we may have absolutely unnecessary litigation. There is no point in simplifying one part of the system in order to produce complications in another. Subject to that, I shall consider the amendments carefully. That may be sufficient for present purposes.

Lord Hylton

Perhaps I may invite the noble and learned Lord to comment on the interaction between the amendments of the noble Baroness, Lady Young, and those spoken to by the noble Lord, Lord Meston, and my noble and learned friend.

The Lord Chancellor

I do not see any conflict between them in principle. The precise drafting may need to be examined, there is a degree of overlap between some, but in principle the kind of difficulty addressed by the amendment of the noble Lords, Lord Meston and Lord Jakobovits, is of a different character from the difficulties addressed by the noble Baroness, Lady Young, in her amendment as well as those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Irvine, about financial prejudice. There is another head relating to children and all three could be operated independently or all together, depending on the court's view of the matter. I see no conflict in principle between the court having power in respect of any one or more of the three heads to examine the possibility of postponing the grant of an order of divorce in the circumstances envisaged.

Lord Meston

I agree with the noble and learned Lord the Lord Chancellor on the point. I see no problem in the interaction, if there is any, between the various amendments. As he said, there is a measure of overlap in that Amendment No. 108 in the name of the noble Baroness, Lady Young, incorporates the specific point about a religious divorce which is more specifically covered in the amendment which I first introduced.

As I understand the indications from the noble and learned Lord, he appreciates and is already aware of the difficulties. The barriers to which he referred and which I sought to address in the first amendment in the group are barriers of serious concern affecting the parties before the court. In my submission, it is incumbent on the court, if at all possible, to seek to help the parties to work round or over the barriers.

The Lord Chancellor

Before the noble Lord proceeds, could he help me on whether anything other than religious barriers of the kind we have been discussing could come under the head of his amendment? I have been considering that, so far without much constructive result. He may have thought about it and be able to help me because it is a difficult area.

Lord Meston

I have to say that it never occurred to me that it would control—if that is the correct word—anything other than religious barriers to a remarriage in the circumstances that I indicated in my opening remarks. I shall look again at the wording in case there is a problem, but I cannot foresee one.

As regards the other amendments, it is perhaps not for me to say more. I should have mentioned that Amendment No. 111 is purely a drafting amendment designed to give the court a power to cancel an order which the Bill in its existing form does not appear to do. On the other amendments, I fully agree with the noble Lord, Lord Irvine, that in practice the existing barrier or the hardship bar is rarely invoked and even more rarely does it succeed. The conventional advice to a client in such circumstances is simply not to try to use it.

I suggest that even at this late hour we have had a valuable debate and the future emphasis in debates on the Bill may well revolve around Clause 10. It seems to me that Clause 10 is the way in which many of the anxieties expressed about the Bill could possibly be resolved. The noble and learned Lord, in the language of the Bill, suggested that there be a period of reflection and consideration on these matters. On this occasion I hope that it will be a much shorter period than one year. Indeed, we shall be able to return to these matters at Report stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale

I beg to move that the House do now resume.

It is ten minutes past eleven o'clock. If my Motion is accepted by the Government, I will sit down at once; otherwise, I shall try to satisfy your Lordships why we should rise now and resume the Committee later. I see that the noble Baroness makes a convulsive move. I hope that that is approbatory.

Moved, That the House do now resume.—(Lord Simon of Glaisdale.)

Baroness Trumpington

I do not think I can do anything convulsively at this time of night. There is light ahead in the tunnel. We will finish pretty soon, but not now. If the noble and learned Lord insists, the matter can be voted upon. I leave it in his hands.

Lord Simon of Glaisdale

I have no objection to the next group of amendments up to Amendment No. 117 being called. I hope that that will assuage any worry on the part of the Whips. The noble Lord, Lord Meston, has just referred to the late hour. It is ten minutes past eleven o'clock. The noble Baroness says that we will end soon. Can she indicate what "soon" means?

Baroness Trumpington

Nobody longs more for my tiny truckle bed than me. I can tell the noble Lord that we will finish at the end of Clause 13; in other words, at Amendment No.153.

Lord Simon of Glaisdale

I am not quite sure about that. At the moment, I believe that the proper course is to withdraw the Motion that I have proposed.

Motion, by leave, withdrawn.

[Amendments Nos. 99 to III not moved.]

Baroness Hamwee moved Amendment No.111A: Page 6, line 10, leave out ("dissolving") and insert ("dissolution of').

On Question, amendment agreed to.

[Amendments Nos. 112 to 114 not moved.]

Baroness Hamwee moved Amendment No. 114A: Page 6, line 13, leave out ("to dissolve the marriage") and insert ("for the marriage to be dissolved").

On Question, amendment agreed to.

[Amendments Nos. 115 to 117 not moved.]

Clause 10, as amended, agreed to.

Baroness Faithfull moved Amendment No. 118: Before Clause 11, insert the following new clause—

ADVICE TO CHILDREN OF DIVORCED PARENTS: CHILD PROTECTION AGENCIES

(". A child protection agency shall provide help and advice to children of divorced parents who find themselves disadvantaged by the terms of the court settlement at the time of the settlement or thereafter.").

The noble Baroness said: This is a probing amendment which seeks advice from the noble and learned Lord. A number of parents, both men and women, have come to see me to say that in some cases the access arrangements are not being carried out by one or the other parent. If it is a woman, very often she cannot afford to go to court when the order is not being carried out. That also goes for men. I am afraid that a number of women give excuses, saying that the child is not able to go for its access visit, the child has an examination or a football match, or is ill. Many men have been to see me to say that they are losing contact with their sons and daughters because the access arrangements are not being adhered to.

In those circumstances, and if the parent cannot afford it, is he allowed legal aid to go back to court? I beg to move.

The Lord Chancellor

The ordinary arrangements for legal aid would apply for those who cannot afford it otherwise. In other words, if they are within the legal aid limits, it would be possible. I believe that that is the right arrangement. If things are not working, the person who is aggrieved by that can go back to court. That is the present system. I think it would be right that the information given at the beginning of the whole business should include reference to that possibility. One would hope to avoid it altogether, but if the situation arose, that is the way in which it would be dealt with.

Baroness Faithfull

I thank the noble and learned Lord. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Lord Chancellor's Rules]:

[Amendment No. 119 not moved.]

The Lord Chancellor moved Amendment No. 120: Page 6, line 23, at end insert— ("( ) as to the form in which a statement is to be made:').

The noble and learned Lord said: We discussed this amendment in relation to an earlier one. I wish to make it clear that the form in which the statement has to be made is something which one can deal with. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 121 and 121A not moved.]

Lord Meston moved Amendment No. 122: Page 6, line 43, leave out ("whether") and insert ("that").

The noble Lord said: I shall very briefly move this amendment, to which I did not have the opportunity to speak earlier. It seeks to alter the provisions of Clause 11(2) in that the existing provision in the Bill suggests that the Lord Chancellor may make rules which include a rule to require a legal representative to certify at such times as may be specified whether he has discussed with the parties the possibility of a reconciliation and various other matters.

That seems to me to reproduce the, frankly, lame procedure under the existing legislation whereby, on filing a divorce petition, a solicitor is required also to lodge with the court what is called a certificate of reconciliation. He does not, in fact, have to say that he has discussed with the party filing the petition the possibility of a reconciliation. He can comply with it, as he would be able to comply with the requirements under the Bill as it is presently drafted, by simply certifying that he has not discussed with his client the possibility of a reconciliation.

It seems to me under the present procedure a complete waste of time and paper for that sort of document to be lodged with the court and it would be unfortunate if the opportunity were lost under this legislation to put something more effective in the statute to require a legal representative to discuss with the party whom he happens to be advising the possibility of a reconciliation. I appreciate that my amendment on its own leaves the rest of the clause in some grammatical error, but I hope that the point is clear. I beg to move.

The Lord Chancellor

My feeling about this provision is that legal representatives may or may not, according to the circumstances, think it right to discuss the various heads of this clause with clients. I have the impression that if one appears to force a completely general obligation of this kind, one may reduce it to fairly meaningless and rather mechanical action. That is my reservation in regard to accepting Amendment No. 122 in principle.

Lord Meston

I thank the noble and learned Lord for that indication. However, a mechanical action is possibly better than no action all. But that is a matter to which I may wish to return. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 123 to 125 not moved.]

Clause 11 agreed to.

Clause 12 [Directions with respect to mediation]:

[Amendment No. 126 not moved.]

Lord Archer of Sandwell moved Amendment No. 127: Page 7, line 17, leave out ("the parties to attend a meeting") and insert ("each of the parties to attend a meeting, either separately or together,").

The noble and learned Lord said: I fear that I must trouble the Committee at this stage with a group of amendments. It may be appropriate that, when moving Amendment No. 127, I speak also to Amendments Nos. 128 to 131, 133 to 139, 141 to 145A, 147 to 153, 155, 164 and 169 to 171. It looks to be an alarming group of amendments on the face of it, but I hope it will not take as long as its sheer bulk appears to suggest.

We have been assured throughout these proceedings that mediation will be voluntary. Unless it is voluntary it is not likely to be successful. Clause 12 appears to introduce a compulsory element. The parties do not have to avail themselves of mediation, but they can be required to attend a meeting to explain what mediation is available and provide them with, an opportunity to agree to take advantage of those facilities". That is a somewhat puzzling concept. The horse cannot be made to drink but it may well be dragged to the water. That does not seem to be a very promising introduction to the mediation process.

Amendment No. 127 relates to the form of mediation following the direction from the court. Again we find this word which we discussed in earlier debates; that is, the word "meeting". Again it raises the question whether the mediation must take the form of a meeting. If so, will it be necessary for both parties to attend the meeting together or might the court give that direction?

The Committee will recollect, when we were discussing the information session, that we may envisage a case where violence has been present in the marriage and the wife may feel totally intimidated if she has to attend a meeting with her husband. The purpose of the amendment is to offer the court a greater range of options as to the form of mediation which it directs. I hope that it will be possible for the noble and learned Lord to take the view that that can only be to the good.

Amendment No. 129 is to the same purpose. Amendment No. 131 specifically envisages a situation where there has been violence in the marriage. We are troubled at any element of compulsion because it does not seem appropriate, where there has been violence in the marriage, that it should even be open to the court to compel a wife to attend a meeting with her husband or to participate in mediation. That does not mean that mediation would not be available to the parties. It would not prevent them from participating in mediation if they voluntarily chose to do so.

Amendment No. 140, which by some process which escapes me was included in an earlier grouping, is really directed to the same question. If a wife might he compelled to attend a meeting, then she may find the necessity for disclosing that there has been violence in the marriage. Surely there should then be an opportunity, in the absence of the other party, to explain that there has been violence in the marriage. I hope that the noble and learned Lord will not find it inconvenient to deal with that matter although for some reason it was, as I say, grouped with an earlier group of amendments.

As regards Amendment No. 136, it is not clear why, if the court chooses to give a direction, it has to specify who the mediator should be. Why should not the court give a direction that there should be mediation and leave the choice of mediator to the parties, with the proviso that if they cannot agree on a mediator they return to the court? This amendment is intended to give the court a wider range of options as to the kind of direction that it might give.

The present drafting of Amendment No. 137 empowers the court to require someone, presumably the mediator, to produce a report as to whether the parties have attended the meetings and what has been decided. It may well be that the people best able to report on that are the parties themselves. Certainly, they may wish to give a report if only commenting on the report produced by the mediator. The amendment is intended to make it clear that the court may require the report from the parties and entails that the parties themselves may report if they so wish.

All these amendments reflect anxieties which have been expressed by the Law Society, the Society of Labour Lawyers and the Women's Aid Federation. I hope that the noble and learned Lord will feel able to address them. I beg to move.

Lord Simon of Glaisdale

The noble and learned Lord said that mediation should be voluntary. I believe that he thereby reflected the general view in the Committee. I would like to put an alternative view. The noble Lord, Lord Irvine of Lairg, earlier quite accurately described mediation as the alternative to litigation and perhaps preliminary as well. What the mediator does is to examine with the parties the matters on which they are still at issue and tries to nudge them so that they see each other's point of view and, if possible, agree. If they cannot agree the matter has to go to adjudication with the mediator, as I have suggested, indicating how far the parties are in agreement and how far they are still at variance.

The noble and learned Lord postulated the difficulty, if it is made compulsory, of a wife who had suffered violence. But why should that be any more so than when they go before the judge? There the husband and wife confront each other and they may glare at each other. Nobody has suggested that adjudication should be voluntary. Indeed, mediation is, as I said, a preliminary alternative to adjudication. Is that very different from a process which the noble Lord, Lord Irvine, would know very well; namely, a summons for direction before a commercial or an Admiralty judge? There the matter can he considered in the presence of the parties without the judge or registrar coming to a final decision, but giving directions so as to narrow and define the issues and thereby shorten and facilitate the proceedings.

That being so, it seems to me that there are substantial advantages in saying that the mediation should be obligatory although, of course, the acceptance of the mediator's recommendation must remain voluntary. Appearance before the mediator seems a necessary preliminary and alternative step to adjudication and although the Chamber is almost a Whip's delight now, I ask the Committee to consider that alternative.

11.30 p.m.

The Lord Chancellor

The quality of the representation in the Chamber is perhaps what matters most and, leaving myself out of the count, I am sure that your Lordships will agree that that is very high.

The purpose of Clause 12 is to give the court a power to require parties to attend a meeting in connection with the possibility of mediation where it appears to the court that mediation is likely to be of some value and where the parties do not appear to have given that possibility sufficient attention in the view of the court. Most of the points made by the noble and learned Lord, Lord Archer, in this connection are worthy of consideration. The intention is that both parties should attend so that the court may see an opportunity for mediation in which both parties participate. Although I recognise that there may be situations where the court wants to try to persuade one of the parties particularly to become involved in mediation, the ordinary situation would be that the court, having seen the two parties before it, has taken the view that there should be mediation.

On the point about domestic violence, I incline to the view advanced earlier by the noble Lord, Lord Irvine, and I would trust the judge to use his discretion wisely and not try to hem it around with particular circumstances. Violence that occurred long ago in the past might not be particularly relevant, so I would not wish to produce too many conditions. That said, I am happy to consider the amendments, including Amendment No. 140.

Lord Coleraine

I should like to speak to Amendment No. 139 which stands in my name and which provides a definition of mediation in the following terms: In this section 'mediation' means the process of dispute resolution in marital proceedings whereby the parties, who agree and remain agreed that they believe that their marriage has broken down, voluntarily seek with the aid of a mediator to resolve by agreement any or all of their arrangements for the future I do not propose to speak to this at any length, but merely to give three reasons why a definition might be useful. Other more sophisticated arguments could be used. First, there is a great deal of confusion about the meaning of the word "mediation"; secondly, there is no definition in the Bill; and, thirdly, the Shorter Oxford English Dictionary is not helpful. The nearest definition that I can find to what we are considering is: to act as an intermediary; to intervene for the purpose of reconciling". Clearly, that is not what we have in mind here and I should be glad to learn what my noble and learned friend thinks of that definition and, indeed, whether he thinks that a definition is needed at all.

Baroness Hamwee

I have four short drafting amendments in this group. The first two (Amendments Nos. 127A and 1 30A) merely suggest that a reference to mediation services might be more appropriate than "mediation facilities". Amendment No. 143A is designed to question the use of the word "amicably" in Clause 13(1) (a) and to suggest that a power to adjourn: for the purpose of enabling disputes to be resolved amicably", is a little over-optimistic. The amendment suggests instead the words: without resort to the court". The fourth of my amendments may be a little more serious. Clause 13(1) relates to the court's power to adjourn and refers to two purposes, which are given. Clause 13(2) provides: In determining whether to adjourn … the court shall have regard in particular to the need to protect the interests of any child of the family". I have not quoted the whole of the subsection, because it provides: In determining whether to adjourn for either purpose". That seems to suggest that only the purposes set out in Clause 13(1) can be taken into account, or are material to that determination, whereas Clause 13(1) includes two purposes, but is not complete in describing them. Amendment No. 143A therefore may be a little more than just a drafting amendment.

The Lord Bishop of Oxford

Perhaps I may say a few words about Amendment No. 169 which is in my name. It is a new clause to insert: Such financial provision as may be necessary shall be made to ensure the readiness of bodies approved by the Lord Chancellor for the purposes of providing mediation services under this Act to carry out their functions under this Act". We are all increasingly conscious of the heavy burden which mediation will have to bear if the Bill is finally approved. At the moment, of course, mediation services are funded largely voluntarily. Since it has become clear that government policy supports mediation traditional funders are tending to withdraw their support, assuming that franchises are already available, whereas they are unlikely to come into operation until 1999, and considering that the maintenance of local services should now be part of government responsibility.

Once the Act is implemented, of course, the core services are likely to be met, but until then some means must be found to ensure the financial viability of the local services until implementation. If the process is to work, mediation needs to be up and running. That, of course, needs financial support.

Lord Irvine of Lairg

I wish to speak briefly to Amendment No. 145 to Clause 13(1)(b) which provides for The court's power to adjourn … for the purpose of enabling disputes to be resolved amicably". What the amendment proposes, and I hope that the noble and learned Lord will say that he will consider it, is that there should be added at the end of Clause 13(1)(b) the words: provided that no adjournment may be ordered by the court with a view to inducing a party who has declined to participate in mediation to do so". The principle is that participation in mediation must be voluntary and not compulsory. I am concerned to ensure that there are no indirect qualifications on the generality of that proposition that mediation must be voluntary.

The subject of Clause 12, as the noble and learned Lord explained, is that the parties are to be informed about mediation facilities; they are also to be given an opportunity to avail themselves of those facilities. However, let us suppose that a party declines because, if a woman, she is intimidated by her husband; she fears that she will be unable to give a good account of herself, unrepresented, in front of the mediation; and not be able, perhaps, to speak properly for the children. Let us suppose that she would prefer to be legally represented in court. The distinguished family lawyer, Ruth Deech, who is also the Principal of St. Anne's College, Oxford, has called attention to the dangers that mediation holds for women and many agree with her. The short point that I make is that it must be made absolutely plain that under Clause 13(1)(b) a court has no power to grant an adjournment for the purpose of enabling a dispute to be resolved, in the statutory language, amicably—then I add through mediation—where there has been a prior refusal to participate in mediation.

I well understand that in the ordinary way a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. I am assuming a state of affairs in which there has been a prior refusal to participate in mediation, a position which a party is entitled to adopt because mediation is truly voluntary. If the court had any such power it would be enabled to seek to induce a party who has declined to participate in mediation to do so. I suggest that it should be made plain beyond doubt that no court may do that. I suggest that the amendment is necessary for that purpose. It would underscore the fact that no court pressure may be brought on individuals who have declined to participate in mediation to do so.

Lord Meston

I speak to Amendment No. 142 standing in my name and that of the right reverend Prelate the Bishop of Oxford. It would provide that: Mediation under this Act shall be conducted according to the Code of Practice of a body approved by the Lord Chancellor for the purposes of mediation". There are now a large number of potential mediators in the field who are of varying calibre, training and background. A recent major advance has been the inauguration of the United Kingdom College of Mediators, which should ensure the attainment and maintenance of high standards and professional accountability.

Amendment No. 142 would ensure that the practice of mediation conducted under the provisions of the Bill is of the highest order by placing on the face of the Bill the requirement that such mediation be conducted according to the code of practice of bodies approved for the purposes of mediation by the noble and learned Lord the Lord Chancellor. The amendment has the support of National Family Mediation, which supports the principle of a code of practice on the face of the Bill. If mediation is a vital part of the operation of the Bill, and it will be vital for the divorcing parties and their families, it seems desirable that there is a statutorily approved code of practice. As the noble Lord, Lord Irvine of Lairg, said earlier today, one must bear in mind that public funds are being directed towards such bodies.

Amendments Nos. 135, 144, 150 and 153 are directed to a separate matter. Amendment No. 135 is concerned with the nature of Clause 12(4) and in some ways the point has already been touched on by the noble Lord, Lord Irvine of Lairg. Under Clause 12 the court may give a direction requiring the parties to attend a meeting to enable them to receive an explanation of the facilities available for mediation. Under the procedures of the Bill, that may well be the third time that they have been confronted with an explanation of mediation. I question how much direct pressure there should be on the parties to mediate if mediation is meant to be a voluntary process.

The remaining amendments are really concerned with the assumption that it is only through mediation that an amicable settlement can be produced. It is not to be assumed that lawyers are completely otiose in the framework of this Bill, particularly since the parties themselves will be seeking a settlement which is to be concluded within the existing framework of matrimonial finance and property law. Therefore I would propose that recognition is given to that point in Clause 13 by extending the reference to a resolution of the dispute to include resolution whether by mediation or otherwise.

11.45 p.m.

Baroness Faithfull

The noble Lord, Lord Meston, has spoken to Amendment No. 142 concerning a code of practice generally speaking. Amendment No. 141 requests a code of practice specifically relating to children, and this amendment is put forward by all the children's organisations. I thought I should make this clear to the noble Lord, Lord Meston, because it really lies up with his amendment.

The Lord Chancellor

This also is a varied collection of amendments. I have already tried to deal with the points of the noble and learned Lord, Lord Archer of Sandwell, on Clause 12. The purpose of Clause 12 is best explained by saying that the court may realise, once the matter comes before it, that the parties have not really understood what mediation can do for them in the particular circumstances. I personally am prepared to trust the court in this matter. In a sense the existence of Clause 12 and that power means that the court can adjourn to allow mediation to take place. think I understand that none of us would wish the court to use some oblique pressure but, on the other hand, if the court feels that the parties, notwithstanding our efforts to inform them, do not really appreciate or have understood the efforts that have been made or realise how mediation could help them in the circumstances of their particular case, the court should invite them to attend a meeting at which that would be clearly explained to them. In a sense it is just reinforcing the messages they have already got.

Of course I have very clearly heard what my noble and learned friend Lord Simon of Glaisdale says, but so far as I am concerned I think mediation involves a degree of positive contribution from both sides to the mediator in a way that is not necessarily the case in connection with compulsory adjudication. I believe the coercive power of the state is available in relation to the backing of a judge, a district judge, or indeed any other judge for that matter, in the exercise of his judicial power. The mediator is not in that capacity exactly. Therefore I personally prefer to regard mediation as voluntary. I think the courts should be given discretion, which I am confident they will use properly, to try to ensure that where mediation is appropriate the parties will understand what benefits it holds for them.

I will take advice, if I may, on the matters put forward by the noble Lord, Lord Meston, principally as drafting amendments. However, I should like to say something about the amendments dealing with mediation. I will certainly consider whether a definition would help. There is a lack of clarity among some about what is meant by "mediation" and it may well be that some definition of that kind may help. I am sad that The Shorter Oxford English Dictionary is not helpful in that connection. I shall obviously have to look elsewhere, as well as referring to my noble friend's amendment, to ascertain whether the definition is sufficiently comprehensive.

On the amendments of the right reverend Prelate, I must point out that I have to be pretty careful about taking responsibility for funding. I am very sympathetic to that and have a certain degree of support which may be available. I have indicated a seminar when we may look at the matter, which should take place early in the spring, but obviously the priorities of government have to be taken into account. I am personally very sympathetic to mediation. I know that it has been well supported and I should like to see such support continue from those who have believed in it.

My final point relates to another amendment tabled in the names of the right reverend Prelate and the noble Lord, Lord Meston, and also to the corresponding amendment of my noble friend Lady Faithfull. I believe that there is a good deal of merit in having a code of practice dealing with mediation. The discussions that we have had on the Bill during the earlier stages of the Committee have, I believe, emphasised that fact. Indeed, one could have a code of practice without attempting to regulate the profession as it develops. Such a code would be a useful way of signifying to members of the profession the subject matters that Parliament had in mind for them to address. In fact, a good number of those matters were mentioned during the course of our discussion.

Therefore, at present I should like to consider the amendments. I am inclined to the view that it would he better for the Lord Chancellor to have the responsibility of issuing—and, from time to time, revising—a code of practice in respect of mediation, both in relation to children and more generally. That would give me an opportunity, for example, to put reconciliation and the need for it to be considered into the forefront of the mind of the mediator. That is not to say that the mediator would carry that out, but the opportunity for referring to services which might help in that respect would be kept in view. I believe that one could do that without, as I said, regulating the profession. So far as I am concerned, the sanction would be that the Legal Aid Board would not arrange for public money to be used in a mediation service which did not comply with the code of practice. Of course, if the new college of mediators draws up a code of its own, I would wish to draw upon it very heavily. However, I believe that there is an advantage for Parliament to be able to express to the mediators from time to time, through the Lord Chancellor, what Parliament sees as the priorities for such an important process in the new way that we are trying to handle these delicate matters.

Those are my preliminary views in relation to the matters raised in the debate on this group of amendments. In the light of those considerations, I hope that Members of the Committee will enable me to bring forward on Report various matters dealing with at least some of the issues.

Lord Archer of Sandwell

I believe that we have had a valuable debate, nothwithstanding the approach of midnight. Unusually, I have the misfortune to differ from the noble and learned Lord, Lord Simon, who did not see why mediation was necessarily voluntary. I echo the views very respectfully of the noble and learned Lord the Lord Chancellor. Surely the answer is that the mediator has no power to make a mandatory order. He can seek only to bring parties to an agreement and he depends upon their participation in the process and upon their acceptance of what he recommends. I suspect that the noble and learned Lord is in a minority on that issue.

Having accepted that mediation should be a voluntary process, the noble and learned Lord the Lord Chancellor said that he would be prepared to trust the judges. With the exception of those provisions in the Bill which—if I may use an expression which has been used more than once in the course of our debates—send a signal that pressure may be placed upon people to participate in mediation, I would share the views of the noble and learned Lord. I would only point out that some of the proposed amendments actually widen the discretion of the judge. I hope that when he considers these matters he takes that into account.

I am grateful for his offer to consider the various amendments which have been put forward, and perhaps even he will welcome an opportunity to do so after a night's sleep. I cannot speak for other noble Lords who have moved amendments but, speaking for myself, I ask leave to withdraw my Amendment No. 127.

Amendment, by leave, withdrawn.

[Amendments Nos. 127A to 140 not moved.]

Clause 12 agreed to.

[Amendments Nos. 141 and 142 not moved.]

Clause 13 [Adjournments]:

[Amendments Nos. 143 to 146 not moved.]

The Lord Chancellor moved Amendments Nos. 147 to 149: Page 8, line 4, leave out ("made by the Lord Chancellor") and insert ("of court"). Page 8, line 3, at beginning insert ("If the court adjourns any proceedings connected with the breakdown of a marriage for either purpose"). Page 8, line 1, leave out subsection (3).

The noble and learned Lord said: My recollection is that these are drafting amendments which are reasonably self-evident in their application. I have left out subsection (3) as being unnecessary, and then put into the later lines enough to deal with the matter without the use of subsection (3). These are drafting amendments and with your Lordships' leave, in order to save time, I would move them en bloc.

On Question, amendments agreed to.

[Amendments Nos. 150 to 153 not moved.]

Clause 13, as amended, agreed to.

Clause 14 [Financial arrangements]:

[Amendment No. 153A not moved.]

Clause 14 agreed to.

Baroness Trumpington

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at two minutes before midnight.