Lords Sitting of 4 March 1996

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.

Prescriptions: Men over Sixty
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What is the annual cost to public funds of implementing the decision of the European Court of Human Rights concerning the entitlement of men aged 60 to drugs and other items.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, we estimate that the cost of giving free prescriptions to men between the ages of 60 and 65 is about £40 million a year.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that reply, but does it not amend considerably the Answer that she gave to an earlier Question when she suggested that the cost was only £2 million? Secondly, does my noble friend agree that for £40 million of expenditure to be incurred without parliamentary assent in either House is an alarming precedent?
Baroness Cumberlege: My Lords, my noble friend asked an identical Question on 15th January this year. My reply was:
"My Lords, we estimate that the cost of giving free prescriptions to men between the ages of 60 and 65 is about £40 million a year".—[Official Report, 15/1/96; col. 357.]
With regard to the second part of my noble friend's question, it is not a matter of the European Court deciding that we should tax our citizens in order to find
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this money. The European Court decided that the principle of equality between men and women in matters of social security applies in the age of exemption from prescription charges.
Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that the confusion over whether the sum is £2 million a year or £40 million a year arises from the fact that the judgment about prescription charges was made by the European Court of Justice, which is the court which decides matters relating to the European Union, and not the European Court of Human Rights as suggested by the noble Lord, Lord Boyd-Carpenter? However, does the noble Baroness agree that the noble Lord is absolutely right to complain that that foreign court can impose charges on Parliament for which the Government then have to raise taxation? Would it not be in the interests of this country to amend Section 2 of the European Communities Act to give us back control over all taxation?
Baroness Cumberlege: My Lords, the noble Lord is correct in saying that it was the European Court of Justice which made the ruling and not the European Court of Human Rights. In this case the European Court of Justice left the United Kingdom free to decide how to implement the principle it had established. We decided to equalise the age of exemption at 60 for both men and women. That was our decision. We took that decision to protect the rights of those women currently receiving free prescriptions.
Baroness Gardner of Parkes: My Lords, in view of the Minister's remark that we decided that the age should be 60 for everyone, whereas I gather that we could have made women wait until 65, and it was only a question of equality, does she agree that it is time we reviewed the blanket entitlement to free prescriptions at either age? There are many people over 60 who could well afford to pay for their prescriptions. The figure of more than 80 per cent. of people receiving free prescriptions seems very high.
Baroness Cumberlege: My Lords, a revíew was carried out in 1993 into the very areas that my noble

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friend mentioned. At that time it was decided to stick with the present policy and, after the European Court of Justice decision, that the exemption should apply at 60.
Lord Lester of Herne Hill: My Lords, is the Minister aware that many men and women in this country will greatly welcome the judgment of the European Court of Justice that men and women are equally entitled to social security benefits—in this case free prescriptions—at the same age without discrimination? Does she agree that they will welcome the Government's decision not to equalise upwards by requiring everyone to wait until 65 but allowing simple justice at the age of 60 for both sexes?
Baroness Cumberlege: My Lords, many men will rejoice and welcome the European Court's ruling. Many women will be delighted that the exemption was equalised at 60.
Baroness Jay of Paddington: My Lords, can the Minister confirm that the Government have accepted that men over 60 can claim back prescription charges for three months? How will it be possible to prove whether those prescriptions have been paid for and used in the previous period?
Baroness Cumberlege: My Lords, we use the prescription claims processing unit. Indeed, it has already authorised payments totalling £2.6 million to 83,000 men.
Lord Boyd-Carpenter: My Lords, will my noble friend deal with the question as to whether expenditure of this sort should be incurred without the assent of either House of Parliament?
Baroness Cumberlege: My Lords, I believe that I made it plain to my noble friend and to your Lordships that it was our decision to incur this additional cost.
The Countess of Mar: My Lords, following on from the question by the noble Baroness, Lady Gardner, do the Government have any intention of further reviewing the distribution of free prescriptions? It seems to me to be eminently sensible that people who can afford to pay for their prescriptions should do so, but that those who cannot need not do so.
Baroness Cumberlege: My Lords, we do not have any intentions at this moment to undertake another formal review.

Malawi: Murder Trial Acquittals
2.43 p.m.
Baroness Elles: My Lords, on behalf of my noble friend Lady Macleod of Borve, and at her request, I beg leave to ask the Government the following Question:
Whether overseas aid from the United Kingdom was used to fund prosecution costs in the recent trial in Malawi of six defendants who were acquitted of the accusation of murder.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, neither overseas aid nor other public funds from the United Kingdom were used to fund prosecution or defence costs in the trial.
Baroness Elles: My Lords, with the leave of the House perhaps I may transmit my noble friend's apologies to the House for not being here; she broke her leg over the weekend. I should like now to put a supplementary question.
I am grateful to the Minister for that reply. Is she aware that strong verbal attacks which seem to be politically motivated have been addressed to the judge who acquitted the defendants in that case? The Government are lodging an appeal against the judgment. That will cost several thousands of pounds by way of expenditure from a country which is already extremely poor. Will the Minister take those factors into account when considering what legal reforms should be advised to Malawi and the kind of aid that is given to that country?
Baroness Chalker of Wallasey: My Lords, I am sure that the whole House will join us in wishing my noble friend a very speedy recovery from her injuries.
Noble Lords: Hear, hear!
Baroness Chalker of Wallasey: My Lords, as regards my noble friend's supplementary question, the whole issue of a trial within Malawi is a matter for the Malawi judicial authorities. We believe that events should be allowed to run their course. Whatever happens there, it is an independent country and it must take the decisions.
However, my noble friend is absolutely right in saying that Malawi is one of the poorest countries in the world. That is why we have been helping it to reform its systems—not only its legal sector but its economic reform, health and eduction sectors, its renewable natural resources, and good government. So far as concerns the legal sector, we have a task force on legal reforms under the chairmanship of a Malawi judge, whose report was finalised last month. It is being considered both by the Government of Malawi and our own Government. I hope that this will lead to new help for the Malawian legal sector as well as all the other matters that I have mentioned.
Lord Avebury: My Lords, we join in the general expressions of sympathy to the noble Baroness, Lady Macleod, and send our very best wishes for a speedy recovery.
Perhaps I may ask the Minister whether she appreciates that yesterday was Martyrs Day in Malawi, when dissidents, such as Mkwapatira Mhango the journalist, who were murdered by agents of the former regime are commemorated? Does she agree that, despite the fact that the defendants in this trial were lucky enough to be acquitted, we should join with the people of Malawi in giving thanks for their deliverance from 30 years of one-party dictatorship?
Baroness Chalker of Wallasey: My Lords, I was aware that yesterday was Martyrs Day in Malawi, but

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I realise that the noble Lord's question is what one might call a little loaded. However, we were very pleased to support the elections which took place in Malawi. We believe that they were free and fair. While there are bound to be criticisms in the settling down of a new government, I have to say to the House that there has been an improvement in human rights since those elections. There is now freedom of the press, freedom of speech, and genuine political dialogue in Parliament. Those are good things.
As regards individuals, I do not think that that aspect comes into this Question.
Lord Rea: My Lords, perhaps I, too, may express my commiseration to the noble Baroness, Lady Macleod, and send wishes for a speedy recovery.
Is the noble Baroness aware that she has the full support of these Benches in giving assistance to developing countries to achieve good governance? Does she not agree that a state prosecution service, properly constituted and conforming to internationally agreed principles, forms part of good governance? Although the Minister says that there was no actual assistance given in this trial, the assistance that Britain gives to Malawi to upgrade and bring up to international standards its legal service is a thoroughly good thing?
Would she not also congratulate the current Malawi Government on at least initially agreeing to the verdict which went against them, thus accepting the rule of law, even though they are now considering appealing?
Baroness Chalker of Wallasey: My Lords, first, I agree with the noble Lord, Lord Rea, about the importance of a sound state prosecution service. That was why just over a year ago we approved £100,000 for the Malawian legal sector to improve the skills of court interpreters, to make sure that there were law books in its High Court library, and to give training to lawyers and High Court judges.
As regards the noble Lord's comment about the Government of Malawi accepting the legal outcome of the Mwanza trial, of course that is right. The government are seeking to improve all their systems, but they have a great deal of work to do. They therefore not only need our help but deserve our support. We constantly make the government aware of their need to practise good government in all its aspects in Malawi. It is not good enough merely to have freedom of speech, of the press and political dialogue; they must also be a transparent accountable government to all their people.
Lord McNally: My Lords, has the Minister made it clear to the Government of Malawi and other recipients of British aid that the Minister's situation is made much easier in winning the case for aid where human rights and independence of the judiciary are expected?
Baroness Chalker of Wallasey: Yes, my Lords.

Asylum Seekers: Help to Local Authorities
2.50 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
When they expect to make an announcement about the nature and extent of the help promised to local authorities with their responsibilities to asylum seekers arising under the Children Act 1989.
Baroness Cumberlege: My Lords, the Department of Health jointly with the Department of the Environment have had discussions with representatives from the local authority associations regarding the implications for local authorities resulting from the changes in social security benefits for asylum seekers.
Earl Russell: My Lords, I thank the Minister for that reply. She is no doubt aware that we have been given categorical assurances on the subject, but it deals with an emergency that came into effect a month ago tomorrow. While honour in government assurances is taken for granted, punctuality is also to be desired.
Baroness Cumberlege: Yes, my Lords, I appreciate the sentiments expressed by the noble Earl. The grant that will be forthcoming for local authorities will be paid in arrears, so that their costs will be covered.
Baroness Farrington of Ribbleton: My Lords, is the Minister aware that the children of asylum seekers will lose their entitlement to free school meals which are predicated on income support? What do the Government intend to do to ensure that such children receive the necessary free school meals in the interests of their health?
Baroness Cumberlege: My Lords, the position will be as before. If asylum seekers or their children qualify for benefits, those benefits will still be supplied. Up to 80 per cent. of the unavoidable additional expenditure will be paid to local authorities. The noble Baroness shakes her head. I am not sure whether she appreciates the distinction between asylum seekers who are appealing after their case has been reviewed and those who have not appealed. Where such people are appealing, I understand that the benefits will not be forthcoming as they have been in the past but that, nevertheless, under the Children Act there is a duty on the Social Services Department to ensure that the children are looked after.
Baroness Jay of Paddington: My Lords, is the Minister aware that the Social Security Advisory Committee, the Government's own independent committee, spoke about the withdrawal of benefits to asylum seekers in the following terms:
"Health professionals have warned that, given the vulnerability of many asylum seekers due to already precarious health, some will die"?

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Is not the Minister worried that, given the delay in announcing the new provisions, problems will particularly affect the children? Unless the benefit is at a high level and permanent, the problems may come to fruition.
Baroness Cumberlege: My Lords, officials are discussing the details with colleagues from the Department of the Environment and local authority associations. That fully meets the most pressing concerns put to the Government by the Social Security Advisory Committee and local authorities.
Baroness Gardner of Parkes: My Lords, is it not true that local authorities have been supplying the services? That is why they have been asking the Government for extra help. It is not that people have not been looked after. The burden has fallen unevenly on different boroughs in different areas, particularly in London, and in different years. Therefore, local authorities are pleased with what is happening in asylum funding.
Baroness Cumberlege: Yes, my Lords, I believe that my noble friend is right. The local authority associations are continuing discussions with the Government and are now well aware that 80 per cent. of their unavoidable additional expenditure above a certain threshold will be met, as will the housing benefit subsidy forgone.
Lord Lester of Herne Hill: My Lords, has the Minister received any estimates from local authority organisations as to the financial level of help that will be required as a result of the policy?
Baroness Cumberlege: My Lords, I understand that we are awaiting that.
Baroness Farrington of Ribbleton: My Lords, will the Minister confirm that she said that, under the Children Act, it is open to local authorities to ignore the criteria for the provision of free school meals in any case where they consider it to be in the interests of children?
Baroness Cumberlege: My Lords, I do not believe that I can better the answer that I gave to the noble Baroness. If the family would have been eligible, I understand that, subject to the time period of the appeal, the ruling is the same.
Earl Russell: My Lords, will the noble Baroness agree that her replies so far could be described as more sympathetic than specific? Can she tell us when the next meeting with local authority negotiators is scheduled?
Baroness Cumberlege: My Lords, it is up to them to decide when they wish to speak to the department. After all, it is they who are collecting the information to present to the department.

Police Bill [H.L.]
2.55 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMIllEES in the Chair.]
Clauses 1 to 106 agreed to.
Schedule 1 [Police Areas]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 46, line 46, at end insert ("and the non-metropolitan districts of Leicester and Rutland").
The noble and learned Lord said: In moving Amendment No. 1, I wish also to speak to Amendments Nos. 2 and 3. All the amendments to this consolidation Bill appearing on the Marshalled List in my name arise from the making of the Leicestershire (City of Leicester and District of Rutland) (Structural Change) Order 1996 which was approved by your Lordships' House a few days ago, on 28th February.
The order makes provision for the reorganisation of local government in Leicestershire. One consequence of the changes made by the order is that the names of the local government areas which make up the Leicestershire Police Area will change from 1st April 1997, although the geographical extent of the police area will remain the same. Article 5 of the 1996 order amends Schedule 1A to the Police Act 1964 which sets out the descriptions of the police areas. The purpose of Amendment No. 1 is to make equivalent provision in relation to Schedule 1 to the Bill which is derived from Schedule 1A to the 1964 Act.
As I indicated, the changes in the names of the local government areas making up the Leicestershire Police Area will not take place until 1st April 1997.
Amendment No. 2 makes the appropriate transitional provision to ensure that until that date the Leicestershire Police Area is described by reference to the existing local government area. Amendment No. 3 revokes Article 5 of the 1996 order which is no longer required in the light of the repeal of the Police Act 1964 by the Bill. When the Bill was considered by the Joint Committee on Consolidation Bills, the committee was made aware of the possible need to bring forward the amendments. The amendments have since been approved by the chairman of the joint committee, my noble and learned friend Lord Lloyd of Berwick, for whose assistance I am most grateful. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedules 2 to 7 agreed to.
Schedule 8 [Transitional provisions, savings etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 68, line 19, at end insert—
("( ) for the entry in that column opposite the name of the Leicestershire police area there were substituted—
The county of Leicestershire",").
The noble and learned Lord said: I have already explained this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 8, as amended, agreed to.
Schedule 9 [Repeals and revocations]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 72, line 43, at end insert—

("S.I. 1996/00

The Leicestershire Article 5.")(City of Leicester and District of Rutland) (Structural Change) Order 1996.

Article 5.")

The noble and learned Lord said: I have already explained this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
House resumed: Bill reported with amendments.

Industrial Tribunals Bill [H.L.]
3 p.m.
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this or the next Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee on either of them. Therefore, unless any noble Lord objects, I shall beg to move in each case that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged. —(The Lord Chancellor.)
On Question, Motion agreed to.

Employment Rights Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged. — (The Lord Chancellor.)
On Question, Motion agreed to.

Family Law Bill [H.L.]
3.1 p.m.
The Lord Chancellor: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 6 [Period for reflection and consideration]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
Page 4, line 5, at end insert ("the fourteenth day after").
The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 32 and 71.
I have tabled these amendments in order to address the concerns expressed in Committee with regard to the commencement date of the period of reflection and consideration, where it is necessary for notice of the statement of marital breakdown to be served on the other party to a marriage. My noble friend Lord Coleraine moved an amendment in Committee to provide that where the statement of marital breakdown is made by only one party, the period of reflection and consideration should not commence until the statement has been served on the other party. There must, however, be absolute certainty as to the date of the period's commencement, as the divorce or separation process depends upon the passing of a prescribed period of time in order to establish irretrievable breakdown. There is no certain way of recording the date on which notice of the statement has been received by the other party, and in fact that party could go on denying receipt indefinitely. Not only therefore would there be uncertainty in this method, but it could give rise to deliberate obstruction on the part of the other party.
The date on which a statement is received by the court is a recorded fact and it is for this reason that the commencement of the period should depend upon this date. However, I have decided to extend the commencement date to 14 days from the date on which the statement is received by the court to allow for service of the statement on the other party. Rules which the Lord Chancellor is empowered to make under Clause 10 can then provide for the statement to be served on the other party within 14 days from the time it is received by the court.
Amendment No. 32 then takes the matter further by providing that where a statement of marital breakdown has been made by one party and rules require the court to serve a copy of the statement on the other party, the court may, on the application of that other party, extend the period for reflection and consideration where failure to comply with the rules of service has caused inordinate delay in the service of the statement.
Amendment No. 71 is necessary in order to enable rules made by the Lord Chancellor to provide for service of the statement and the circumstances in which such service can be dispensed with or substituted. It is obviously necessary for the purposes of the provisions contained in Amendments Nos. 30 and 32 that rules

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clearly set out the requirements as to service. It is more helpful for this to be done along with other rules relating directly to the statement and which are made under Clause 10, rather than generally in rules of court.
I think that these amendments adequately address the concerns expressed in Committee. They allow for additional time to be granted to parties where there has been inordinate delay, but place the responsibility for proving why there is good cause for extending the period on the party who alleges delay in service of the statement. This should protect against delaying tactics and deliberate obstruction on the part of the other party. I beg to move.
Lord Coleraine: My Lords, I am glad to hear from my noble and learned friend that the period for reflection and consideration will start 14 days after the court receives the statement. I quite understand that there are very good reasons why the amendment that I proposed in Committee could not be accepted in substance. I only hope that my noble and learned friend can assure the House that no difficulties will arise in a number of possible situations that can be envisaged. One is the absence on holiday abroad of the spouse who is being served with a statement. The other is possibly the spouse who served the statement interfering and seeing that the other spouse does not receive the statement. I am sure that rules of court cover these matters, but they are of concern.
The Lord Chancellor: My Lords, I am grateful to my noble friend. The purpose of the power to extend given to the court is to cope with any difficulties of the sort to which he referred. It is a fairly general power to deal with matters of that kind and I expect it to be able to be capable of dealing with the sort of circumstances that he mentioned.
On Question, amendment agreed to.
Baroness David Baroness David moved Amendment No. 31:
Page 4, line 6, at end insert ("except where subsection (8) applies.").
The noble Baroness said: My Lords, in the absence of my noble friend Lord Irvine, I am moving these amendments.
Amendments Nos. 31 and 43 are in my noble friend's name. Amendment No. 43 is the substantive one which inserts a new subsection at page 4, line 21 which would read:
"The court shall have the power to abridge the period for reflection and consideration if (but only if) the requirements of section 2(1) are satisfied and the court is satisfied that it is necessary in the interests of the parties or of any relevant children to dissolve the marriage before such period has elapsed".
My Amendment No. 35 has the same purpose, which is, in very special cases, for the court to abridge the period for reflection and consideration.
The point is that it would be a great pity if the vast improvement which the Bill makes—a mandatory year for reflection and consideration—were made excessively restrictive by robbing the judges of any discretion to do justice in the rare cases where a divorce
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should be granted before the expiry of the 12-month period. Just as there are special cases where a year may be too short, so also the law should be flexible enough to allow for special cases where one year is too long.
I repeat the telling example given by my noble friend Lord Irvine in Committee on 23rd January:
"A man who was separated from his wife more than 10 years ago was diagnosed in February of last year as dying from cancer. He and his wife had not divorced; neither of them had seen any need to do so. He was living with his new partner. She became pregnant. He wanted, so far as he could, to provide for her and their child after his death. His lawful wife was entirely supportive. She too was living with a new partner.
The lawful husband had substantial pension policies. Within a few months he was able to obtain a divorce from his wife with her full agreement and of course the co-operation of the courts. The divorce was finalised in June of that year; he died in September. His new wife now has the benefit of a widow's pension under his occupational scheme, to the great benefit of not only herself, but also of their child. Happily, the child was born last summer".— [Official Report, 23/1/96; col. 961.]
I think that is a really telling example. No doubt it could be said that the couple should have divorced earlier, and in a sense therefore they were the authors of their own misfortune. I suppose that is true, but they did not. It would be extraordinarily harsh to say that they have only themselves to blame. I believe that no court should be prevented from doing justice in such an exceptional situation.
Presumably, the noble and learned Lord will argue, as he did in Committee, that a year for reflection and consideration is the minimum period necessary to demonstrate that the marriage has irreparably broken down. I accept that in the generality of cases. The question is whether that is necessary in every case. I suggest that the example I gave illustrates that it is not necessary.
Noble Lords will observe how narrow is the exception proposed under Amendment No. 43. The court has to be satisfied that it is necessary in the interests of the parties or any relevant children to dissolve the marriage before the year has elapsed. The word "necessary" signifies the highest conceivable threshold that would have to be surmounted before the subsection could be invoked. Necessary means that which is indispensable; that which cannot be done without. It is in sharp contradistinction to the word "reasonable", which would signify much broader discretion in the courts.
The noble and learned Lord also argued in Committee that there should be no circumstances in which the one-year period should be shortened—I quote him—
"because it is necessary to send out a clear signal that marriage is an important relationship and that a year is required before it can be dissolved once one or both of the parties has initiated the necessary procedure".
I do not believe that the clear signal is diminished by so narrow an exception as proposed by the amendment.
I observed from my reading of the discussions at Committee stage that the noble and learned Lord did not respond directly to the example given in Committee by my noble friend Lord Irvine. I invite him to do so. Does not he agree that justice obviously requires that a divorce be granted in less than a year in that case, and that the Bill should not be so rigid as to deny it?
As I said, Amendment No. 35 has the same aim but the application would be made by,
"a person authorised by order of the Lord Chancellor".
That I hope will make the amendment more acceptable to him. Originally, the idea was that the application would be made by local authority social services; but, arguably, it might be more appropriate to empower court welfare officers or perhaps a guardian ad litem.
The point of having an authorised person rather than enabling the parties to make such an application is that we understand that the noble and learned Lord is determined not to permit a breach of the compulsory year because his main argument against the current fault-based divorce and his main defence of the Bill's reforms are that the new legislation prevents a "quickie" divorce. If he allows the parties to apply for the year to be abridged, he loses that line of defence.
The amendment is, therefore, framed to allow for the extreme circumstance, when neutral third parties are concerned that children are suffering because of the delay in obtaining a divorce. For example, social services might become involved because of concerns raised by the child's school or doctor. Alternatively, the court welfare officer might become aware of the situation because of Children Act private hearings during the year.
What kind of cases would be likely to trigger such an application? First, it must be accepted that the cases would not be about children needing to be protected from one of the parents. Children Act Section 8 contact orders (access), residence orders (custody) and prohibited steps or specific issue orders (about schooling or religion) can all be obtained during or before the compulsory year of reflection. Similarly, occupation orders under the Bill can be obtained during the year in cases of domestic violence.
So the kind of cases where a social worker or court welfare officer might want to apply for the final divorce to be speeded up would be relatively rare and would be about issues not directly about the child's upbringing or protection. For example, a speedy divorce might be needed for reasons of terminal illness, as in the case mentioned earlier by my noble friend; or where there were questions of nationality or immigration which would crucially affect the children—for example, where the children have British nationality but the mother does not and will be deported if she does not remarry, or where a new partner has a job opportunity in Britain but cannot enter without the citizenship obtained through remarriage. Some states will not allow cohabiting couples to enter and that can cause particular problems where an individual wishes to enter one of those states to fulfil an employment contract, and so on, and the couple wish to go abroad with the children of the family, as a family. A speedy divorce may be needed where the children are in poverty, which is affecting their welfare because the financial arrangements cannot be finalised until after the divorce; or where the children are suffering extreme psychological and emotional distress from the delay in finalising the proceedings—for example, if one of their parents has committed a grave offence, perhaps killed one of their siblings, but is still
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lawfully married to the other parent and is damaging the family through delaying tactics in the divorce proceedings; or in order to clarify the child's paternity, for example, where the new partner is in fact the child's father.
This amendment was not discussed at Committee stage. It has the support of a very wide range of organisations. Although sympathetic to the noble and learned Lord's determination to hold firm, everyone believes that there must be some machinery to allow the 12-month period to be shortened, albeit with great difficulty and in very exceptional circumstances, if the welfare of children is threatened. As my noble friend said in Committee, why may the year be lengthened under Clause 9 but, if these amendments are to be opposed, never abridged in special and unusual cases? There should be flexibility both ways. Judges should be trusted to identify those unusual and special cases in which one year is either too long or too short. I beg to move.
3.15 p.m.
Earl Russell: My Lords, I support the amendments and in particular Amendment No. 43, to which I put my name. This is a "free vote" Bill but I trust that I shall not infringe that principle if I observe that Procrustes was not a great liberal. I understand very well the pressures that the noble and learned Lord is under to keep down any exemptions to the one-year period. Nevertheless, in terms of realism and common humanity, we must allow that there are limits to the extent to which one single legal principle may fit every individual case.
These amendments are only concerned with exceptional cases. They are concerned with cases where significant physical or mental harm is likely to result to the parents or to the children from a delay in the divorce. They cover a number of possible situations—for example, cases of mental health. I personally have known cases in which it was essential to the mental health of one of the parties that the marriage should be dissolved; that the parties should feel free of it and be able within their own minds to start again. In the cases that I have known, happily, recovery was in the end complete.
That is not the only case. There are cases in which it is vitally in the interests of the children for the marriage to be dissolved and they should know that they will not need to deal with the person again. The case in my mind was referred to the local women's refuge. I apologise to the House for mentioning the details but we must deal with reality. The father was in the habit of buggering the children with a carefully sharpened pencil. In a case like that, divorce within less than a year was very much in the interests of the children, the mother and everybody else, including social services, which would otherwise have had to pick up the pieces.
That is the kind of case that I have in mind when I speak of Procrustes. We do not want to be precluded from showing mercy in such a case for the sake of a formula or an abstract principle, however good that principle may be. There are also straightforward cases

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of domestic violence. One can very easily underrate the determination and indeed the cunning of a man of property who approaches his wife in that spirit after divorce.
I appreciate that the recent tragic events in Birmingham and Bristol are sub judice. Nevertheless, I hope I may say that I have received representations in relation to these particular amendments from a close neighbour of the dead woman in that case. I believe that the relevance is clear enough.
There is also a case which was reported in the Independent on 1st February concerning a woman who refused to allow a contact order with her children and is facing the threat of gaol. The man had raped her and threatened her with guns. He appeared to have no willingness to cease to do so. In those circumstances she believed that contact was not in the interests of the children. I am inclined to take her point.
As long as there are dealings through lawyers it is perfectly easy to discover addresses. I have known cases of men of this type impersonating police officers in order to get information. As I said, determination cannot be underrated. Not everybody involved in this type of case, especially if they are accidentally involved, appreciates the risks involved. The risk of unauthorised disclosure of an address is considerable, when every such unauthorised disclosure may risk a life. These risks are not to be multiplied beyond necessity. So I believe that there are cases where it is conducive to the safety, and possibly even the life, of some of the parties that it should be possible to conclude a divorce quickly and to put the whole issue behind us. I am happy to support these amendments.
Baroness Elles: My Lords, the noble Earl, Lord Russell, has put forward cogent reasons why there must be exceptional cases where exemption must be granted. I am a little concerned that Amendments Nos. 35 and 43 are not parallel.
Amendment No. 35 mentions an,
"application by a person authorised by order of the Lord Chancellor",
which means that the cases are clearly limited. Amendment No. 43 states:
"it is necessary in the interests of the parties or of any relevant children".
Amendment No. 35 refers only to the,
"best interests of any child of the marriage".
Therefore, if my noble and learned friend is going to consider having this specific principle of exemption in very dire cases, it should be under the authority of somebody nominated by the Lord Chancellor himself or herself. It should also cover both the parties as well as any children of the marriage.
Baroness Young: My Lords, I support the point that my noble friend Lady Elles has made. It will not surprise the House to recognise that I am very concerned about shortening the period of a year, which I would prefer to see extended. I can just see that there may be very limited cases where that might be necessary.
16
I listened to the noble Baroness, Lady David, whose sincerity in all this I greatly respect. I felt that the longer she spoke the more cases she adduced that might be covered by this amendment. Therefore, one has to recognise that once one widens the number of cases which can be shortened, one is going to get into a similar position to that which occurred under the 1969 Act when everything was speeded up by the special procedure a few years later. Once again, I believe that we have to be very careful about the signal we are sending out.
The same applies to the point made by the noble Earl, Lord Russell. I believe he said at the beginning of his remarks that he wanted the amendment to cover "significant physical and mental harm", which was undefined. That was a very sweeping statement. There may be very exceptional cases—the noble Earl quoted one—which I can just see. I shall be very unhappy if this measure is widened and we find that the year is being shortened—it could easily be shortened—by an increasing number of, as yet, undefined specific cases.
Lord Elton: My Lords, if my noble and learned friend is disposed to look kindly on this amendment, which I rather doubt, I hope that, following the remarks of my noble friend Lady Young, he will look at it only under the most straitened circumstances. It could easily be the beginning of the opening of the floodgate which removes the one-year minimum which is an essential feature of the Bill.
As the amendment addresses the question of changing the minimum time, I hope that in replying to the debate the noble Baroness will explain why she is considering changing it in one direction only. There must be cases where an extension is appropriate, as, for instance, when one of the parties is on a foreign posting and the spouse cannot accompany. In that case, no prospect of reconciliation will exist until the spouse returns to this country, which might be, let us say, in nine months' time.
As regards the compellingly unpleasant case quoted by the noble Earl, Lord Russell, I would have thought—I am not a lawyer and I realise that I may be mistaken—that the protection required may be that of a court order and not necessarily the acceleration of the separation of the parties by divorce proceedings. That said, I believe that we should go very carefully indeed before we reduce what many of us regard as an already irreducible minimum.
Lord Habgood: My Lords, it gives me great pleasure to agree with what the noble Baroness, Lady Young, has said on this occasion. Like her, I listened with growing alarm to the number of cases adduced by those putting forward these amendments, particularly when one bears in mind the report from the family mediators. I believe that in about one-third of the cases that come for mediation, some element of violence is discerned within the marriage. If that is the kind of proportion that we are talking about, it seems to me that we are opening a very wide door indeed.
The Lord Chancellor: My Lords, the principle on which this Bill rests is that the irretrievable breakdown

17
of a marriage shall be arrived at in the situation where the relationship has broken down and has remained so for at least a year, notwithstanding any efforts that the parties could put forward to heal the relationship. That appears to me to be a general principle. Therefore I am extremely slow to make any exception to it at all, because the kinds of hardships which have been mentioned in the examples given by the noble Baroness and the noble Earl are examples which can be dealt with, at least for the most part, by the protection which is available under the provisions dealing with domestic violence. As regards the case to which the noble Earl, Lord Russell, referred, I would certainly think that that was possible.
The noble Earl said that as long as lawyers are in contact there is always the chance of a leak about the address of the other party. I expect that is true, but there are other sources of leaks as well as lawyers' offices. It does not appear to me that that is a good reason for allowing a divorce to take place more quickly. It seems to me that the dissolution of the marriage is distinct from the protection of parties and children during the marriage. The purpose of Part III is to ensure that there are effective means of protection of parties and children from violence during the marriage.
The case which the noble Lord, Lord Irvine of Lairg, mentioned previously, and which the noble Baroness mentioned today, is a very special circumstance. However, that occurred under the existing law. The fact is that, if the law is changed, in the future people will have to take account of what that new law is. There is an adage which suggests that bad law can arise from too much consideration of particularly hard cases. We need a principle in this matter which emphasises the importance of the year as the test of whether a ground for divorce exists. I cannot see that the mere existence of circumstances such as have been mentioned in any way shows that that was not so. Of course, I agree that, where there is cruelty and the like, the prospects for reconciliation are not good. On the other hand, even in that situation there are the elements of protection to which I have referred. For my part, therefore, I am not at all anxious to make any exceptions in this area. That is one reason why I think that it is equally difficult to extend the period. One wants a definite period which is clear, about which everyone knows, and in respect of which there are no exceptions. That is the way in which I invite your Lordships to deal with the matter.
This appears to me to be an important matter of principle in the Bill and I suggest that your Lordships deal with it in that way. I had assumed that the principle of the Bill was so strong that a free vote would not be required on this matter, which is more incidental than other matters relating to the grounds for divorce.
3.30 p.m.
Earl Russell: My Lords, before the noble and learned Lord sits down, although I am extremely grateful for what he said about court orders, does he understand that there are some cases in which the woman's life can be made safe only by concealment of her whereabouts?
The Lord Chancellor: My Lords, yes, I do. That is an important factor in proper safety. However, I cannot
18
link that inevitably with the question of an order of divorce. It seems to me that adequate steps to protect the location of the woman can be taken quite apart from an order for the dissolution of the marriage. To me, they seem distinguishable and distinct.
Baroness David: My Lords, this has been a useful discussion and I am grateful to all who have taken part in it. I appreciate, of course, that my noble friend's amendment and mine are slightly different. Points have been made about that. Obviously, that needs to be discussed, but I have been impressed that there has been a certain amount of support for the fact that there could be the exceptional case which needs exceptional treatment. I am glad to have the powerful support of the noble Earl, Lord Russell. Both the noble Baronesses, Lady Elles and Lady Young, agreed that there could possibly be special cases. I am heartened by that.
I realise that the amendments have probably been drawn too wide and need to be tightened up. I must admit that the noble and learned Lord's response was rather as I had expected, but I am surprised that he does not see that there could be some special case which needs a special provision. I should like to take the two amendments away and to discuss them with my noble friend in the light of the discussions that we have had today. I think that it is pretty well inevitable that we shall come forward with one amendment at the next stage of the Bill, but for today I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 4, line 6, at end insert—
("(3A) Where—

(a) the statement has been made by one party,

(b) rules made under section 10 require the court to serve a copy of the statement on the other party, and

(c) failure to comply with the rules causes inordinate delay in service,

the court may, on the application of that other party, extend the period for reflection and consideration.
(3B) An extension under subsection (3A) may be for any period not exceeding the time between—

(a) the beginning of the period for reflection and consideration; and

(b) the time when service is effected.").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 30. I beg to move.
[Amendments Nos. 33 and 34, as amendments to Amendment No. 32, not moved.]
On Question, Amendment No. 32 agreed to.
[Amendment No. 35 not moved.]
Lord Northbourne Lord Northbourne had given notice of his intention to move Amendment No. 36:
Page 4, line 6, at end insert—
("( ) In the case of any marriage where there is a child of the marriage under the age of 16, the period for reflection and consideration shall be 18 months unless upon application to the court

19
by either party or by a person representing the child or children the court decides that the period shall be one year because—

(a) both parties agree to the period of one year; or

(b) it is in the best interest of the child or children that the period should be one year.").

The noble Lord said: My Lords, this amendment was debated very late on Thursday when many of your Lordships were not able to be in your places. It is an important amendment which needs to be fully discussed. It proposes an extension of the 12-month period for reflection to 18 months in cases where there are children under 16 in the family and where only one parent has lodged a statement of breakdown. It also contains a provision for the court to reduce that period to 12 months, but not less, where to do so would be in the best interests of the child.
The amendment would give more time for more couples to achieve reconciliation. That means that fewer children would suffer the trauma of permanent breakdown and divorce. I believe that the amendment deserves to be fully debated and, if necessary, voted upon at Third Reading. Therefore, I do not propose to move it today.
[Amendment No. 36 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 37:
Page 4, line 10, leave out subsection (5) and insert—
("( ) Subsection (6) applies if, at any time during the period for reflection and consideration, the parties give joint notice to the court that they are attempting a reconciliation but require additional time.").
The noble and learned Lord said: My Lords, this is a drafting amendment which is intended to clarify the position where people attempt reconciliation during a period of reflection and consideration. It arises from our consideration of this part of the Bill in Committee. I should like to speak also to Amendment No. 38, which is an amendment to this amendment, but I assume from what my noble and learned friend has already said that he will not seek to move it.
Clause 6(6) provides for the period of reflection and consideration to be suspended where a couple jointly give notice that they require time to attempt reconciliation. The noble Lord, Lord Irvine of Lairg, expressed concern in Committee about the situation of couples wishing to attempt reconciliation but who do not want to stop the running of the one-year period. The noble Lord thought that, because there was no specific mention of reconciliation without notification to the court, parties might think that it was not an option open to them and that consequently attempts at reconciliation would be discouraged. That is the last thing that I want to do.
I indicated in Committee that I would consider whether that provision could be further clarified. The amendment that I have proposed is directed at emphasising that the time that the parties ask for in giving notice to the court of an attempt at reconciliation is additional to the one-year period for reflection and consideration. The parties can attempt reconciliation at any time during the period without affecting the running of the period for reflection and consideration but, if they want more time, they can suspend the running of the
20
period by jointly giving notice. There is nothing in the Bill to prevent couples from privately attempting reconciliation or to prejudice them if they do so.
I have already spoken about similar amendments relating to reconciliation and I do not think that I need to elaborate on them at this stage, except to say that, as far as I am concerned, the whole purpose of that period is to encourage the possibility of reconciliation. Therefore, this amendment is intended to clarify the drafting doubt which was raised on the last occasion. I beg to move.
Lord Meston: My Lords, can the noble and learned Lord confirm that it is still the position, even with Amendment No. 37, that the only way in which the clock can be stopped is by way of a formal notice to the court?
The Lord Chancellor: My Lords, yes, that is the intention. It should be absolutely plain when the period on the clock comes to an end.
[Amendment No. 38, as an amendment to Amendment No. 37, not moved.]
On Question, Amendment No. 37 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 39:
Page 4, line 13, leave out from beginning to first ("the") in line 15 and insert ("The period for reflection and consideration—

(a) stops running on the day on which the notice is received by the court; but

(b) resumes running on").

The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 39 with the earlier amendments. I beg to move.
[Amendment No. 40, as an amendment to Amendment No. 39, not moved.]
On Question, Amendment No. 39 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 41:
Page 4, line 17, leave out from beginning to ("any") in line 19 and insert—
("(7) If the period for reflection and consideration is interrupted under subsection (6) by a continuous period of more than 18 months,").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
[Amendment No. 42, as an amendment to Amendment No. 41, not moved.]
On Question, Amendment No. 41 agreed to.
[Amendment No. 43 not moved.]
Lord Meston Lord Meston had given notice of his intention to move Amendment No. 43A:
After Clause 6, insert the following new clause—
EXTENSION OF 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: My Lords, I do not propose to move any of the amendments in this group. I hope that progress may be made in bringing forward a refined version of Amendment No. 60A at Third Reading as the most suitable way to deal with the important matter of religious divorces that is covered by this group of amendments.
[Amendment No. 43A not moved.]
Clause 7 [Attendance at information sessions]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 44 to 51:
Page 4, line 22, leave out ("attending information sessions") and insert ("information meetings").
Page 4, line 24, leave out ("The party or parties") and insert ("A party").
Page 4, line 25, leave out ("session") and insert ("meeting").
Page 4, line 26, at end insert—
("( ) In the case of a statement made by both parties, the parties may attend separate meetings or the same meeting.").
Page 4, line 28, leave out ("session") and insert ("meeting").
Page 4, line 34, leave out ("session") and insert ("meeting").
Page 4, line 35, leave out ("regulations made by the Lord Chancellor") and insert ("prescribed provisions").
Page 4, line 36, leave out ("those") and insert ("the party or parties").
The noble and learned Lord said: My Lords, Amendments Nos. 44 to 51 are consequential upon the change from the words "information session" to which I referred earlier. With the leave of your Lordships, I move Amendments Nos. 44 to 51 en bloc.
On Question, amendments agreed to.
The Lord Bishop of Oxford The Lord Bishop of Oxford had given notice of his intention to move Amendments Nos. 52 and 53:
Page 4, line 38, at end insert—
("( ) Those attending information sessions shall be offered a counselling session with an approved marriage counsellor.").
Page 4, line 38, at end insert—
("( ) For the purposes of this section, an approved marriage counsellor is a person currently accredited as such by an organisation approved by the Lord Chancellor to provide marriage counselling, or a person currently accredited by a body approved by the Lord Chancellor, who has undertaken specialist training in couple counselling and marital interaction.").
The right reverend Prelate said: My Lords, I do not intend to move the amendments standing in my name. Amendments Nos. 52, 53, 58 and 59 have already been debated. I am grateful to receive the assurance of the noble and learned Lord in that earlier debate. He said that he wished to consider whether, in relation to the information session, it was possible to make provision for greater detail in primary legislation without endangering the necessary flexibility. I understand the difficulties that have been expressed by the noble and learned Lord but, as I am sure he knows, there is widespread concern on the part of the range of marriage support agencies that there be some mention of those bodies and marriage counselling at the information session.
In relation to the other two amendments which deal with approved marriage counsellors, I entirely understand the concerns that have been expressed by the
22
noble and learned Lord. However, the question arises as to how to stop unauthorised and untrained marriage counsellors offering themselves at marriage information sessions. I very much hope that it will be possible for the noble and learned Lord to enter into discussion on an amendment of which he may approve.
[Amendments Nos. 52 and 53 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 54 to 57:
Page 4, line 39, leave out ("The regulations") and insert ("Regulations made under this section").
Page 4, line 40, leave out ("sessions") and insert ("meetings").
Page 4, line 41, leave out ("and").
Page 4, line 42, at end insert ("; and
(c) for the giving of information to parties (otherwise than at information meetings) in cases in which the requirement to attend such meetings does not apply.").
The noble and learned Lord said: My Lords, Amendments Nos. 54 to 57 arise out of the earlier amendments. I beg to move these amendments en bloc.
On Question, amendments agreed to.
[Amendments Nos. 58 and 59 not moved.]
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 60:
After Clause 7, insert the following new clause—

SPECIAL CHILDREN'S OFFICER
(".—(1) The Lord Chancellor may make regulations for a special children's officer attached to the family court care centres and divorce hearing centres.
(2) The regulations shall make provision for the special children's officer to make appropriate arrangements on behalf of children whose parents—

(a) have made a statement of marital breakdown under this Act; or

(b) have taken or are taking proceedings under Part II of the Children Act 1989.

(3) Arrangements mentioned under subsection (2) shall include the provision of information, advice or assistance, including applying to the court for the separate representation of the child.").
The noble Baroness said: My Lords, this amendment was moved on the last occasion that we sat. Therefore, I do not move the amendment.
[Amendment No. 60 not moved.]
3.45 p.m.
Clause 8 [Arrangements for the future]
[Amendments Nos. 60A to 62 not moved.]
Baroness David Baroness David moved Amendment No. 63:
Page 5, line 28, at end insert—
("( ) Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned.").
The noble Baroness said: My Lords, on behalf of my noble friend Lord Archer of Sandwell I should like to move Amendment No. 63 as an amendment to Clause 8. The amendment inserts at the end of the clause subsection (6), which reads:

23
"Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned".
This is a probing amendment which I believe raises a new point. It is unclear from the Bill what the effect on a divorce order will be if someone falsely declares that arrangements have been made for the future, or falsely states that he or she comes within the exceptions provided for in Schedule 1. The amendment is designed to clarify whether the Government intend that false declarations will make any subsequent divorce bogus or will have no effect upon a subsequent divorce order. I hope that the noble and learned Lord will be able to enlighten us on the point. I beg to move.
The Lord Chancellor: My Lords, it is a fundamental procedural requirement of the Bill that evidence of arrangements must be produced to the court in order to satisfy the requirements of Clause 8, unless one of the exemptions in Schedule 1 applies. If a divorce order is made and it is subsequently found that the requirements of Clause 8 have not been met, that is to say, evidence of arrangements has not been put before the court, that order should be void.
I have carefully considered this amendment. Although I believe that if faced with a case where Clause 8 has not been complied with it is likely that a court will declare an order void, nevertheless I believe that this should be made clear on the face of the Bill. I will bring forward a Government amendment to reflect the intention that a divorce or separation order that is obtained without the provisions of Clause 8 and Schedule 1 having been complied with shall be void, but no person shall be entitled to challenge the validity of the order on the ground that the information contained in the declarations mentioned in Clause 8(2)(c) and (d) is incorrect. The courts would still be able to pronounce an order void or voidable in other circumstances according to general principles, for example complete lack of service. I hope that I have explained what I have it in mind to do in answer to Amendment No. 63. We may be able to deal with that by Third Reading.
Baroness David: My Lords, I am extremely grateful to the noble and learned Lord for his response. I feel that putting down the amendment has been worthwhile. I look forward to an amendment from the noble and learned Lord, hopefully at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 64:
Leave out Clause 8.
The noble Baroness said: My Lords, it may be that the last response will carry some weight also in relation to Amendment No. 64. However, I believe that I should move this amendment in order to find out the response of the noble and learned Lord. Clause 8 provides, in conjunction with Schedule 1, that arrangements for the future must be made during the period for consideration and reflection, subject to limited exceptions. This clause
24
represents a change from the Law Commission's original proposals and should be removed for the following reasons. First, it will place a considerable bargaining chip in the hands of a recalcitrant or spiteful spouse. He or she will be able to insist that certain arrangements are made as the price of granting the other party a divorce.
Secondly, a number of problems exist with the exceptions to the rules as currently drafted as they are unclear and incomplete. The net effect is that uncertainty will be increased. That is likely to lead to increased litigation. Examples of possible difficulties are that the provisions in Clause 8(2)(c) and (d), which relate to the financial arrangements, as supplemented by Schedule 1, may lead to fraud. Thirdly, these proposals are untested. The proposed provisions are not duplicated in other common law jurisdictions where a system of no fault exists. In Australia, for instance, arrangements for finance and children are dealt with entirely separate from the divorce itself. I should say that I am speaking also to Amendment No. 117 which is consequential upon the removal of Clause 8. I beg to move.
The Lord Chancellor: My Lords, the provisions of Clause 8 and the schedule are essential to what is in contemplation here. It is vital that before a divorce is granted the parties should face up to the responsibilities that have arisen in their marriage in such a way as to make all the necessary provisions for the future. That does not happen at the moment. So far as I know, it has not been provided for in other jurisdictions at present, as the noble Baroness said. I cannot think of a more practical way of facing up to the responsibilities of marriage than this way.
To have the divorce first and to leave over these matters is to leave over the essential dealing with the responsibilities of the marriage, which are fundamental. For example, it is clear that if someone is going to undertake new relationships and new responsibilities, it is important that, so far as possible, before that is done that person should know the nature of the commitments they have arising out of the earlier marriage.
It is sometimes said against me by those who are not minded to accept the approach of the Bill that I am seeking in some way to depart from forcing people so far as possible to face up to their responsibilities before a marriage is dissolved. This is the provision that does that. It is an important and practical one.
The noble and learned Lord, Lord Archer of Sandwell, referred on the last occasion to Professor Cretney. Professor Cretney has indicated to me that he regards this as an important improvement and modification to what the Law Commission proposed. It is sometimes said that all of these proposals are the Law Commission's proposals. Of course they are not. In this respect there is a most important departure from them. It is necessary to have this. It will require a different approach to divorce from that which is available under the present system.
I am of course always willing to consider whether improvements to the drafting of these provisions can be made, but on the principle of the provisions, as challenged in Amendments Nos. 64 and 67, I hope that

25
your Lordships will feel that the provisions are vital and an important and desirable part of the proposals contained in the Bill.
Earl Russell: My Lords, before the noble and learned Lord sits down, I wonder whether he can clarify a point raised by the noble Baroness about what happens if a party wilfully refuses to agree to any financial arrangement.
The Lord Chancellor: My Lords, that point is dealt with in the schedule of exceptions. The court is pretty astute and can deal with such a situation. Schedule 1 deals with it. That is why I said that drafting matters are different, but in cases where that has happened and the court thinks that that is what is happening, the court has power to deal with the matter. There is always a difficulty about such problems. The only way to deal with them is to leave them to the court to handle in the light of all the circumstances that obtain.
Baroness David: My Lords, I thank the noble and learned Lord for his full and positive response which was not entirely unexpected. I see the importance that he attaches to the clause. I noted also that he said that he is always willing to consider drafting improvements. I think I should discuss this with my noble and learned friend Lord Archer of Sandwell. It was his amendment that I moved. In the light of his reading of the noble and learned Lord's reply he might want to suggest drafting improvements and bring the matter back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Hardship: orders preventing divorce]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 65:
Page 5, line 35, leave out ("grave") and insert ("substantial").
The noble and learned Lord said: My Lords, I should like to speak also to Amendments Nos. 66, 67, 68, 69 and 70. As your Lordships will appreciate, in Committee there was a full and valuable debate about the provisions and workings of the hardship bar on divorce. I intimated in Committee that I wished to consider in more detail the points made and I have now tabled these amendments to address some of the concerns which were raised.
One of the main concerns which was expressed in Committee centred around the rarity with which the hardship bar is invoked. The view was expressed, in particular by the noble Lord, Lord Irvine of Lairg, and my noble and learned friend Lord Simon of Glaisdale, that the bar was currently something of a "dead letter", and amendments were tabled to test whether the language of the clause could be amended to make its application less rigid.
Your Lordships will recall that the bar provisions at the moment apply to five-year separation divorces only, which form a small proportion of the total number, the vast bulk presently being based on fault grounds with no bar applicable to them. The Bill extends the bar provisions to all divorces. I share the concerns that the hardship bar should be a meaningful provision. I have
26
therefore decided to amend the clause in the direction suggested in Committee by replacing the word "grave" in relation to the hardship experienced on dissolution of the marriage with the word "substantial", which is a less strict test.
In terms of the relevance of the hardship bar, I have mentioned that it is intended to apply to all divorces. Your Lordships will be aware that it is not just financial hardship that is in question but other hardships as well. People have sometimes not understood that fully. It is a bar that applies to substantial financial or other hardship.
The other amendments which I propose to make relate to children. This again arises out of the Committee stage. The welfare of children in divorce was referred to in Committee in the context of the hardship bar, in particular by my noble friends Lady Young and Lady Elles and the noble Lord, Lord Irvine of Lairg. Although they mentioned it in particular, I am sure that they are concerns which we all share. In the light of those considerations and the remark of my noble friend Lord Boyd-Carpenter when the question of children was being discussed, I have decided to propose these amendments to extend the provisions of the bar on divorce to encompass the children of the family as well as the parties to the marriage. In that context, I would emphasise that in all cases in order for the hardship to be applied the court must be satisfied that the actual dissolution of the marriage will cause substantial financial or other hardship to a child or children.
I should also emphasise that an application for an order preventing divorce can be applied for only by a party to the marriage, even if this application is asserting that the dissolution will result in hardship to children. In my view, it would place an intolerable burden on children to provide that they themselves might be involved in making such an application, as we discussed earlier. They could easily be put under pressure by one or other parent to apply for such an order—indeed, by other well-meaning persons—without any regard to the enormous responsibility that that would place on such a child. We cannot have a situation in which we pitch child against parent in a battle about whether the marriage should be legally dissolved.
Amendments Nos. 67 and 70 are intended simply to emphasise that where there are children in the family their interests must be taken into account when the court is considering all the circumstances of the case in order to determine whether it is wrong to dissolve the marriage. I beg to move.
4 p.m.
Baroness Young: My Lords, I thank the noble and learned Lord the Lord Chancellor for the amendments that he has tabled to Clause 9. They are in response to points raised in Committee and I am glad to see them. I am sure that he was completely misinterpreted in his comments relating to Amendments Nos. 67 and 70 concerning children and that there was never a suggestion that children should appear in court. I support the noble and learned Lord in what he said.
However, I should be grateful if he would clarify a major issue of principle. He said that one of the criticisms in respect of what was originally Clause 10,

27
but is now Clause 9, was that the hardship bar had never been used or, as I understand it, had been used on only one occasion. I also understood him to say that it applied only to five-year separations and that under the Bill it would apply to all divorces. I do not understand how the same principle can be seen to work in respect of all divorces when it failed to work in respect of five-year divorces. I understand that the issue was not a question of time but the interpretation of the law.
The noble and learned Lord mentioned Dr. Cretney from whom I have received a letter on this matter. As there is a legal point which I am not sure I fully understand I hope that the noble and learned Lord will explain it to me and that he will forgive me if I quote from the letter. Dr. Cretney refers to the fact that the hardship bar is designed to help in grave financial or other hardship and I take the point that that has been amended. He states:
"These words appear in the existing law; but are rarely invoked—largely because the courts have consistently held that hardship must result from divorce (i.e. the ending of the legal status of marriage) rather than from the breakdown of the relationship and the circumstances which led to it. There is no reported case in which a defence based on hardship other than financial hardship has been successful".
Dr. Cretney goes on to state:
"The 1969 concordat between the Law Commission and the Archbishop of Canterbury's group (which led to the enactment of the present divorce law)" —
that is, the 1969 law—
"envisaged that the court would be required to refuse divorce if satisfied that, having regard to the conduct and interests of the parties and the interests of the children, it would be wrong to end the marriage; but the terms of the legislation are much narrower. The court has no power under the existing law to refuse a divorce merely because the applicant has been guilty of outrageous behaviour; and it will have no such power under the Bill currently before the House of Lords".
I see that there is a distinction between hardship which must result from divorce and hardship resulting from the breakdown of the relationship. However, as someone who is not a lawyer that seems a narrow point of law. If that is the point of law on which it has not been possible to operate the hardship bar—and it is a most serious point—I would be grateful if my noble and learned friend the Lord Chancellor could explain the difficulty and assure me and the House that Clause 9 will not suffer from the defects from which a similar clause suffered in the preceding Bill.
Lord Northbourne: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor, as I am sure is every Member of your Lordships' House and the organisations concerned with the welfare of children, for the introduction of the amendments, which serve an important purpose in improving the Bill.
Lord Simon of Glaisdale: My Lords, when the 1969 Act was before your Lordships strong objections were voiced to the requirement that in order to halt a divorce after five years' separation a wife against whom nothing substantial could be alleged had to show grave hardship before she was cast off to her detriment. That anxiety was voiced by Lord Hodson, the foremost matrimonial
28
judge of the time, and by Lady Summers who was ever vigilant of the interests of married women. They asked: why should it be grave hardship? Indeed, they asked: why should she be required to show any hardship, but in any case why grave hardship?
As my noble and learned friend has explained, that bar in the 1969 Act, which was consolidated in 1973, was relevant only to divorce after five years' separation; the divorce by repudiation. The issue became much more serious when one found that the requirement to show grave hardship appeared in this Bill; in other words, where there could be repudiation of a spouse against whom nothing substantial could be alleged after one year's notice. Those voices, those considerations and those concerns were raised in Committee and my noble and learned friend has gone a long way towards meeting them.
I have only one question about the substitution of the word "substantial" for the word "grave". That is on the ground that the law does not generally take any account of insubstantial consideration. It is always expressed in a Latin tag, which I shall not repeat because I know that lawyers' pronunciation of Latin is highly offensive to your Lordships. The fact remains that the law does not regard taking any account of insubstantial consideration. It seems to me that the court might be alerted, therefore, that something more is required by the use of the word "substantial". Why cannot one simply leave it out and provide for only hardship? That argument relates to Amendments Nos. 65 and 68.
As regards Amendments Nos. 66, 67, 69 and 70, it remains only to express appreciation for the way in which my noble and learned friend has met our views.
Baroness Elles: My Lords, if I may continue for a moment with what I was going to say earlier, I understand what my noble and learned friend has said about the interests of the children, but I would like to ask him a couple of questions.
When we were discussing Amendment No. 9 which brought in criteria from the Children Act, it was mentioned that this might have been considered within the terms of Clause 9. Whether that aspect is covered by the interests of the children I am not sure. What criteria are the court to use when assessing the interests of the child? Will Section 1 of the Children Act automatically apply? As I understand it, the Children Act works only where there are disputes between the parents or where, as set out in Section 1:
"a court determines any question with respect to … the upbringing of a child; … or the administration of a child's property or the application of any income arising from it".
Would the interests of the child, therefore, under Clause 9 be confined to those aspects or would there be a general view taken of the interests of the child? If so, what criteria would be used? Could my Amendment No. 9, discussed in Committee, be taken into consideration?
Obviously my noble and learned friend cannot give me an answer straightaway but I would be grateful if he would consider this. At the moment there is no definition of what the interests of the child are.

29
Secondly, could we have some slight explanation of what my noble and learned friend considers would cover hardship? There will probably be quite a lot of variation in what a court or a judge might decide would include hardship. Would it include where a child had to be removed from the home in which he or she was living and the mother and the child had to apply for a council flat after having lived in a rather luxurious house? Would that change of style and general quality of life be considered as hardship? Would that be a ground for preventing a divorce being granted; or does my noble and learned friend intend to leave a great deal of latitude to the court in defining both the interests of the child and the hardship? At the moment, although there are very good intentions, I wonder how in fact it will work out.
Lord Phillimore: My Lords, would the noble and learned Lord indicate how he proposes that hardship to a child of a family be established to the satisfaction of any court? The noble Baroness, Lady Young, referred to the fact that it is undesirable—and I am sure we all agree—that a child should attend court and give evidence. But even the intervention of a third party such as a welfare officer could cause considerable distress to a child. Children are quick to perceive that they may be being asked to decide matters. That occurs, of course, in residence and contact matters where a welfare officer intervenes. I suggest that that is to be avoided, and I would welcome some indication as to how this will be avoided.
Lord Habgood: My Lords, I would welcome a little clarification from the noble and learned Lord about Clause 9(2)(b):
""that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved".
In our earlier discussions we said that this was the area of the Bill in which the concept of fault might come back into the arrangements for divorce. It is a little curious to discuss this entirely under the heading of hardship. There are two issues here—hardship and justice—and Subsection (2)(b) is basically about justice. Is it envisaged that a court might decide that arrangements made under Clause 8 of the Bill, although agreed by the parties, seem manifestly unfair in the light of the conduct of the parties, and that one could build into the Bill at this point some safeguard against the manipulation of one of the parties by the other?
4.15 p.m.
The Lord Chancellor: My Lords, let me take these matters in order. My noble friend Lady Young asked about the reason for the previous bar not working. Of course, it did work to some extent and it was used in a few cases—for example, when there was a loss of a pension which was considered a grave financial hardship. It was also used in practice as affecting the course of negotiations. Some would call it a bargaining factor. Your Lordships will remember that the noble Lord, Lord Mishcon, in Committee spoke of the existence of a bar as something that could influence
30
parties even though they had not got to the stage of invoking the bar in connection with the settlement arrangements between the parties.
This is a convenient point to answer the question raised by the noble Lord, Lord Habgood. The question of conduct is relevant to the settlement of financial matters between the parties under the rules which presently exist and which, so far as this is concerned, I am not proposing to change; namely, that where there is conduct which it would be inequitable to leave out of account, that should be taken into account in considering the nature of the financial arrangements between the parties following a divorce. So that is fully taken account of in the present arrangements, in my submission.
My next point, in amplification and answer to my noble friend Lady Young, is this: the court has no power to prevent parties separating. If people decide to live apart there is nothing the court can do about it, and therefore hardship arising from that is not something that the court can be expected to control. The hardship that the court can deal with is hardship resulting from something that is within the court's power; namely, the power to make an order dissolving the marriage. I have sought to make that as ample as it can be. The word "hardship" is a very general word which would cover a variety of circumstances; and I have put in the word "substantial" for the reason that my noble and learned friend Lord Simon of Glaisdale gave—that this is a Bill which I expect, when it becomes an Act, to be read by ordinary people, and we have tried to couch it in ordinary language.
My noble and learned friend was kind enough to say at an earlier stage that the Bill was well drafted. This is one of the objectives—that it should be capable of being read and easily understood by those who are not familiar with the law. It may well be that an intelligent lay person may not be aware of the rule to which my noble and learned friend referred, and therefore I felt it right to put in the word "substantial" to indicate to a lay person that he or she would have to be able to identify something on which the court could find as occasioning hardship.
The reason that this is a more ample provision than the previous one is that the word "grave" indicates a higher standard of hardship. I propose to reduce it to as low a standard as it can go to consistent with the point of principle that my noble and learned friend Lord Simon of Glaisdale has mentioned.
My noble friend Lord Phillimore asked about the involvement of children. The hardship that this provision refers to is objective hardship of some kind. It is not just what the children feel about it but is something in the nature of objective hardship. There is a case in the books which illustrates in one particular example how this might arise. There was a case of a child in the books, but that child was older than would be classified as a child under this Bill. However, I take the example of a child who had a particular disability. The family home in which he lived was adapted in order that that disability could be catered for. When the husband and wife split up, they could not afford to keep

31
that home. As very often happens, the total available to the family was less than was available for the house. Therefore, they had to sell the house as a consequence of the break-up of the marriage. It would take some time to adapt another house for the purposes of the child's disability.
That is an example of an objective type of hardship to a child of the marriage occasioned by the granting of a divorce at a particular time. Therefore, under this amendment, the divorce may well be postponed until new arrangements have been made, if it is possible at all to make them.
Of course, it is important that all the hardship which that provision deals with must be hardship occasioned by the order which the court may or may not make. Sadly, no one—courts nor anyone else—can remove the hardship which is caused by the breakdown of a marriage.
Those are the main matters which were raised. I believe strongly that the proper approach to this matter is the objective approach in relation to the hardship criterion. The hardship criterion is a necessary condition for this clause to be involved. Once that criterion is satisfied, the court takes account of all the factors mentioned in the later subsection.
I take account of what my noble friend Lady Elles says and I think that it would be advisable to leave this matter very much in the hands of the courts—and it is very difficult for us to envisage all circumstances—as to what they consider to be the interests of the child affected. As my noble friend said, the Children Act is designed specifically to deal with matters affecting children; for example, where they should stay, with whom they should have contact, to which schools they should go, and so on. The Children Act is an elaborate and satisfactory framework for dealing with that.
In this regard, I believe that the word "interests" is a good word to describe that to which the court should have regard in relation to children. I feel fairly strongly that it would be inadvisable for us to try to define it further. It leaves the matter open to the courts to do justice in the particular circumstances which may come before them. Therefore, I hope that your Lordships will feel that this is a good step forward and that it would be wise to leave the matter as open as possible.
Lord Renton: My Lords, before my noble and learned friend sits down, perhaps I may mention the fact that he has drawn attention to a very important drafting principle which we too often neglect. He has said, and rightly said, that this matter should be stated in terms of the principle to be applied by the courts. The alternative is to spell out in detail all the kinds of hypothetical circumstances which lengthen and ruin much of our legislation.
Baroness Young: My Lords, before my noble and learned friend sits down, perhaps he will clarify still further the very important point about how the clause would be interpreted so that we can be quite sure that it would operate.
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If I recall it correctly, he said that it had been used in a number of cases in the past and, if a couple had decided to separate, the court could not make a judgment on that because that is something which is freely entered into. However, I have reread Dr. Cretney's letter and that is not the point which he is making. I do not wish to take up the time of the House but I would find it extremely helpful if my noble and learned friend could write to me on this matter. I am extremely concerned. I believe that this amendment is a great improvement to the Bill but I wish to make quite sure that it will be operative when the Bill becomes law.
The Lord Chancellor: My Lords, assuming that the Bill becomes law with this amendment in it, as I certainly hope it will, it will become operative in the sense that the courts will have to apply it if the jurisdiction of the court is invoked in any particular case.
As I understood the letter from Dr. Cretney which my noble friend read, he makes the point that the hardship must be related to the order dissolving the marriage. That is a factor which limits the application of its jurisdiction. But that is an inevitable limitation on the jurisdiction. I have lowered the standard of hardship required from "grave" to "substantial", which, in the circumstances, is as low as it can go. It is then left to the courts to decide whether there is hardship in any particular case and whether or not an order should be made in the light of the circumstances referred to in the later part of the clause.
I believe that that is all that I can say in dealing with the letter from Dr. Cretney and that I have dealt with the point he makes, which I understand entirely.
I am extremely grateful to my noble friend Lord Renton, who is such an authority on the matter of statutory construction, for the comfort of his support. I agree that it is wise not to attempt to have too much detailed definition of such phrases. Apart from cluttering the statute book, it may well prevent the courts from doing justice in a particular case where otherwise they may be able to do so.
Baroness Faithfull: My Lords, before my noble and learned friend sits down, on several occasions he has made cross-references to the Children Act 1989. It may be helpful to those who must administer the Act to have those cross references to that Act in this Bill. That Act is extremely clear in relation to some of the points that have been raised this afternoon.
The Lord Chancellor: My Lords, it is extremely important that it is recognised generally that the Children Act is a comprehensive framework which deals with matters concerning the upbringing of children. That applies where the parents are divorced or whatever is the situation. To my mind, it is extremely important that that is preserved.
Of course, there is a link with the Children Act in the provisions of the modified Clause 41 with which we shall deal later. Earlier today, I was looking with my colleagues who are helping me at the possibility of

33
having a much earlier reference to the Children Act in this Bill. This Bill is not intended to deal exhaustively with the interests of children. On the contrary, I wish to point to the fact that the Children Act is a very useful and practical framework which deals with that. I am grateful to my noble friend for that suggestion and I shall try to pursue it. I cannot say for certain that I shall be successful, but I hope that I shall be.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 66 and 67:
Page 5, line 36, after ("party") insert ("or to a child of the family").
Page 5, line 38, after ("parties") insert ("and the interests of any child of the family").
The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 65. I beg to move.
On Question, amendments agreed to.
[Amendment No. 67A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 68 to 70:
Page 5, line 42, leave out ("grave") and insert ("substantial").
Page 5, line 43, at end insert ("or to a child of the family").
Page 6, line 2, after ("parties") insert ("and the interests of any child of the family").
The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 65. I beg to move.
On Question, amendments agreed to.
[Amendment No. 70A not moved.]
Clause 10 [Lord Chancellor's rules]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 71 and 72:
Page 6, line 14, at end insert—
("( ) requiring a copy of a statement made by one party to be served by the court on the other party;
( ) as to circumstances in which such service may be dispensed with or may be effected otherwise than by delivery to the party;").
Page 6, leave out lines 35 and 36.
The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 30. I beg to move.
On Question, amendments agreed to.
4.30 p.m.
The Lord Bishop of Oxford The Lord Bishop of Oxford moved Amendment No. 73:
Page 6, line 37, after ("any") insert ("marriage").
The right reverend Prelate said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 76 and 78 which are tabled in my name. They relate to Clause 10(2) which deals with rules that may be made by the Lord Chancellor requiring a legal representative to discuss certain matters with,
"a party to a marriage",
34
or to make various pieces of information available to that party.
Paragraph (c) of the clause refers to:
"whether he has given that party names and addresses of persons qualified to help…to effect a reconciliation".
My question is quite a simple one: namely, what kind of people are qualified to effect a reconciliation? Of course, along with other noble Lords, I very much hope that we can reconcile as many people as possible. But those who are actually qualified to help bring about a reconciliation—that is, if a reconciliation is at all possible—are marriage counsellors. I can certainly see the need for people to be given the names and addresses of qualified marriage counsellors and also of qualified mediators. I shall be glad to hear from the noble and learned Lord the Lord Chancellor what he has in mind when he refers to people who might be "qualified to help" in such a reconciliation. That is the purpose of Amendment No. 76.
Amendments Nos. 73 and 78 refer to Clause 10(2).At present, paragraph (a)(iii) refers to,
"the availability to the parties of any counselling facilities".
Amendment No. 73 proposes the insertion of the word "marriage" before "counselling". Similarly, Amendment No. 78 which refers to paragraph (c)(iii) also requires the insertion of the word "marriage" before "counselling".
There is an important matter of principle involved. It is, quite simply, whether people should be told about the availability of counsellors in general, or whether they should be told about the availability of people who are trained and qualified to offer marriage counselling. I yield to no one in my respect for, and realisation of, the need for counsellors of all kinds; but this Bill deals with divorce and trained and qualified marriage counsellors, as well as trained and qualified mediators, have a special role to play.
The noble and learned Lord the Lord Chancellor gave a very substantial address recently to Relate in which he expressed his difficulty in accepting the amendments. For example, he put forward the possible case where the friend of a husband dies and the husband goes through a very deep depression as a result of his bereavement. That might drastically affect the marriage and may lead to a lack of communication, and so on. In such a situation, what a person really needs is a bereavement counsellor rather than a marriage counsellor. However, perhaps I may quote from the letter that Dr. Jack Dominian wrote to the noble and learned Lord. Dr. Dominian is a psychiatrist and the country's leading specialist on marriage and on how marriages can be kept together, enriched and saved. He thought that the example of the noble and learned Lord was especially good. In the letter he says:
"One of the classic triggering factors in marital breakdown is bereavement and so this example is highly relevant. You suggest that bereavement counselling may be what this man needs, 'by being able to tackle the source of a depression, the ability to communicate can be restored to the couple'. I would say that the chances of reconciling such a couple would be far higher if they saw a marriage counsellor than a bereavement councillor. A trained marriage counsellor should be able to tackle the husband's depression and his

35
wife's response to it; in such situations, while the individual spouse has a specific problem the marriage clearly needs some attention too. The bereavement counsellor would be focusing on the individual's needs alone and not those of the couple.
For me this is the central concern when a marriage is in trouble—what is the most appropriate help for the marriage? A marriage counsellor focuses on the marital relationship and attempts to find the minimum needs of both partners, to make them conscious, to remove obstacles to their realisation and to help the couple to fulfil those needs. A counsellor will focus on the individual's needs which of course to some extent are compromised in a marital partnership. Some individual counselling may actually reduce the opportunities for reconciliation".
There is a very specific need for marriage counsellors at that point. I believe that we will take away from the distinctive contribution which marriage counsellors can make if they are, so to speak, simply subsumed within the general category of counsellors. I ask the noble and learned Lord the Lord Chancellor, to reconsider that point. I beg to move.
Baroness Faithfull: My Lords, I have one comment to make. The British Association for Counselling has an accreditation programme for counsellors covering different areas. Perhaps we should discuss the matter with the association.
Baroness Gardner of Parkes: My Lords, I should like to follow the point made by the right reverend Prelate. He referred to "trained and qualified mediators". I should like to know exactly who those people will be. We had a meeting in this place with the Law Society during which we asked that same question. We were told about a college of mediators. When we asked who had set up the college, where it was and what were the necessary qualifications, the answers we received were all extremely vague. We were told that there were about 700 people involved in the work at present; indeed, it seems to be a great growth industry. However, no one really knew what qualifications were required. I wonder whether any part of the Bill sets out what a mediator is, in particular a "trained and qualified mediator".
Baroness David: My Lords, I had intended to say a few words, but I believe the noble Baroness, Lady Faithfull, is about to cover what I would have said.
Baroness Faithfull: My Lords, I should point out to the House that Amendment No. 96A deals with the whole question of accreditation as regards training, as will Amendment No. 94 tabled in the name of the noble Lord, Lord Habgood.
The Lord Chancellor: My Lords, I should say, first, that I am most grateful to the right reverend Prelate for having paid some attention to my address to Relate. It is always a thrill when something one has said is read by someone who was not there, especially if that person quotes accurately. I am also grateful to Dr. Jack Dominian for his contribution in which he, as it were, puts me right on the matter. I would certainly wish to try to give effect to his suggestion.
I wish to try to ensure that marriage counsellors are available, but I believe that there should not be too much restriction in that respect. Indeed, the variety of services
36
is something that I would not wish to restrict at present. I hope that the Bill will regulate the law for a considerable time to come. I cannot envisage—and I doubt whether your Lordships can—every possible development and innovation that there may be in improving services. Dr. Jack Dominian is a leading exponent of the need to innovate and develop services to help.
I certainly wish to take account of those considerations in developing the current draft of the rules. One way to do so is, I believe, to include a statement in the nature of the information that must be available that would at least be exemplary of what might be available. Of course, that might not include all that is available, but the information would at least reflect those considerations. I believe that I will probably be able to do that without too much difficulty.
One of the purposes behind Amendments Nos. 72, 74, 77 and 79 is to respond to the concerns expressed by the right reverend Prelate in Committee. The amendments reorder the provisions of Clause 10(2) to give greater priority to the references to "counselling" within the clause. I believe that I can make it possible to accommodate the concerns expressed by the right reverend Prelate and also those expressed by Dr. Dominian in this letter by reordering the wording without damaging what I want to keep; namely, considerable flexibility.
My noble friend Lady Gardner of Parkes wishes to know about mediators. There are a number of trained mediators who have come together to bring forward the standards of the profession and it may be that we will have a better opportunity of discussing that under one of the later amendments which my noble friend Lady Faithfull has proposed. My noble friend Lady Gardner of Parkes would have learned from the Law Society that there are a number of trained mediators who are members of the Law Society and I am sure that at the meeting she attended she would have been assured of just what high quality they are. I have no doubt that others will seek to emulate them, perhaps from a slightly different professional base. In the light of the assurance that I have given to the right reverend Prelate the Bishop of Oxford I hope he will feel that he need not press his amendment.
The Lord Bishop of Oxford: My Lords, I beg leave to withdraw the amendment standing in my name.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 74:
Page 6, line 38, at end insert ("or
( ) the opportunities for the parties to take part in mediation;").
The noble and learned Lord said: My Lords, this is an amendment which, as I have explained, is an attempt to reorder the provisions of Clause 10(2) to give greater priority to the references to counselling within that clause and is brought forward in response to the right reverend Prelate's concern. I beg to move.
On Question, amendment agreed to.
Baroness David Baroness David had given notice of her intention to move Amendment No. 75:
Page 6, line 38, at end insert ("or
( ) the need for the parties to have regard to the welfare of any children of the family and to have regard to the ascertainable views of such children (considered in the light of their age and understanding when making arrangements for their future;").
The noble Baroness said: My Lords, I spoke to this amendment last Thursday and the noble and learned Lord was kind enough to say that he would take it away and would probably bring back an amendment himself at Third Reading to deal with the point. Therefore, I am not moving this amendment.
[Amendment No. 75 not moved.]
[Amendment No. 76 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 77:
Page 6, leave out line 43.
The noble and learned Lord said: My Lords, I spoke to this amendment earlier. It is one of the amendments brought forward to meet the right reverend Prelate's concerns. I beg to move.
On Question, amendment agreed to.
[Amendment No. 78 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 79:
Page 6, line 44, at end insert ("or
( ) in connection with mediation.").
The noble and learned Lord said: My Lords, this amendment is in the same connection. I beg to move.
On Question, amendment agreed to.
4.45 p.m.
Baroness David Baroness David moved Amendment No. 80:
Page 6, line 44, at end insert—
("( ) The Lord Chancellor may make rules requiring a person who is or has been a marriage guidance counsellor assisting one or both of the parties to the marriage with respect to which a statement has been made, or is proposed to be made, to certify at such time or times as may be specified—

(a) whether he has discussed with the party or parties—

(i) the possibility of reconciliation;

(ii) the opportunities for the parties to take part in mediation; and

(iii) the opportunities for the parties to receive legal advice and representation;

(b) which, if any, of those matters he and the party or parties have discussed; and

(c) whether he has given the party or parties the names and addresses of persons qualified to help—

(i) in connection with mediation; or

(ii) by providing legal advice and representation.

( ) The Lord Chancellor may make rules requiring a person who is or has been a mediator assisting one or both of the parties to the marriage with respect to which a statement has been made, or is proposed to be made, to certify at such time or times as may be specified—

(a) whether he has discussed with the party or parties—

(i) the possibility of reconciliation;

(ii) the availability to the parties of any counselling facilities; and

38

(iii) the opportunities for the parties to receive legal advice and representation;

(b) which, if any, of those matters he and the party or parties have discussed; and

(c) whether he has given the party or parties the names and addresses of persons qualified to help—

(i) to effect a reconciliation;

(ii) by counselling; or

(iii) by providing legal advice and representation.").

The noble Baroness said: My Lords, I move this amendment on behalf of my noble friend Lord Archer of Sandwell. This is a long amendment, but it can be a very short explanation. It will extend the Lord Chancellor's power to make regulations specifying the type of requirements, as appears in subsection (2) of Clause 10. It places a requirement upon solicitors concerning information to be given to clients, so that the requirements will also apply to marriage guidance counsellors and mediators. It is important that all service providers should be under similar obligations to provide their clients with information. I beg to move.
The Lord Chancellor: My Lords, I am very appreciative of the principle behind Amendment No. 80 which seeks to apply both to marriage guidance counsellors and mediators the Lord Chancellor's power to make rules in relation to information which legal representatives may be required to give to the court.
I am not sure that this is a wise provision for marriage counsellors. I believe that it suggests that marriage counsellors might stray more into the area of information on divorce, separation, and so called divorce counselling, than I believe the House might wish to see on the face of the Bill which has, as one of its stated general principles, the wish to support the institution of marriage. Your Lordships may have heard the suggestion that some organisations which are concerned principally with marriage guidance counselling fall all too easily into the idea of divorce counselling. I am not saying for one single moment that these allegations are justified, but I certainly would not wish to do anything to encourage them.
I believe that when somebody goes for guidance and help in relation to their marriage, on the whole it is not right for the initiative of suggesting divorce to be taken by the marriage guidance counsellor. It is quite right that marriage counsellors should discuss the possibility of reconciliation with the parties. I do not, however, see that their role involves discussing the possibility of legal representation or mediation with couples. If marriage counselling is not successful and one or both of the parties decides to proceed with divorce, they will be able to get information on all the services available to help them at the information meeting.
I am also concerned especially that the low take up of marriage support services could suggest that couples may be put off counselling if they feel that their counsellor is somehow involved in reporting their discussions to the court. I know that is not the principle behind this amendment, but it is one of the

39
risks that one must take into account in making such a provision. This might make marriage support services seem more like agents of the divorce court rather than organisations whose focus will be on looking at how the marriage can be sustained.
In relation to mediation, it is of course important that mediators, too, have in place arrangements to ensure that important matters such as reconciliation are kept under review during the course of mediation. It is to this end that I have tabled Amendment No. 99A, which is intended to ensure that mediators are in a position to practise in accordance with the principles of the Bill. Your Lordships see that that provides that the Legal Aid Board may not contract with mediators unless they have arrangements in place to ensure that reconciliation is kept under review throughout mediation and that parents are encouraged to consider the welfare, wishes and feelings of the children. I believe that is a good way to indicate the sort of principles we expect mediators to follow.
I should like to consider whether it might be appropriate to add a further provision to Amendment No. 99A to provide that mediators should have in place arrangements designed to ensure that parties are informed about the availability of independent legal advice. I am minded to bring forward an amendment to that effect at Third Reading. That is, mediators should be able to tell the parties that if they want independent legal advice on any matter, then, of course, they can consider that.
On reflection, it does not seem right that mediators are to be required to ensure that arrangements are in place with regard to matters such as reconciliation, children and the availability of legal advice whereas legal representatives merely need to self-certify whether or not they have discussed reconciliation and mediation with parties. I am minded, therefore, to bring forward a government amendment at Third Reading which would strengthen the provisions in Clause 10 by requiring legal representatives to inform not only about marriage counselling and mediation but also about the need for parents to consider the welfare, wishes and feelings of their children when they are deciding arrangements for the future. I referred to that earlier.
I would not seek to place any such requirements on counsellors. The primary objective of counsellors is to help people with marriage difficulties. They are not involved in advising on legal process or negotiating financial settlements, nor in disputes relating to children, and should not be required to certify that they have discussed these matters. Both lawyers and mediators, on the other hand, must have regard to the primary principles of this Bill, one of which is that the parties to a marriage which may have broken down are to be encouraged to take all practical steps to save it. I therefore have no hesitation in making amendments which will more strictly enforce the role of lawyers and mediators in that respect.
In the light of that explanation and that I accept the principle of the amendment, insofar as I have described it as acceptable, I hope the noble Baroness may feel able to withdraw it.
Baroness David: My Lords, I am very grateful indeed for that very full and indeed interesting answer from the noble and learned Lord. I quite understand that he is taking a different attitude to marriage guidance counsellors and to mediators as far as the amendment is concerned. I am very grateful that he intends to bring forward amendments, possibly at Third Reading. That is a substantial concession from the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Directions with respect to mediation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 81:
Page 7, line 7, leave out ("the parties") and insert ("each party").
The noble and learned Lord said: My Lords, in moving Amendment No. 81 I wish to speak also to Amendments Nos. 82 to 84, and to Amendment No. 85 in the name of the noble Earl, Lord Russell.
The amendments are intended to clarify the provisions with regard to meetings. I have tabled the amendments to make it clear that where parties are directed to attend meetings with a mediator for an explanation of mediation under Clause 11 they can attend those meetings separately, either at their own request or at the direction of the court. Concern was expressed at Committee stage by the noble and learned Lord, Lord Archer of Sandwell, on the possibility of intimidation where parties are required to attend together. I agree that that is something we should take all practical steps to avoid.
In addition, Amendment No. 82 makes it clear that each party should be given the opportunity to express his or her own view as to whether he or she wishes to pursue mediation at or after that meeting.
The noble and learned Lord, Lord Archer of Sandwell, also sought to make amendments to this part of the Bill, which makes special provision where there has been domestic violence. However, I am wary of imposing too many conditions in these matters. Mediation is not always inappropriate in cases of domestic violence; for example, where the violence occurred a long time in the past. In any case, people can be intimidated by their partners in many more ways than simply by physical violence. I therefore think it more valuable to make these broad amendments which allow parties to attend meetings separately in all cases if they wish to do so or the court considers it appropriate, and allow them to express their individual views as to whether or not they wish to proceed with mediation, having heard about and, better still one hopes, having understood what mediation is about.
The noble Earl, Lord Russell, sought to address this matter. From a communication that I have received from him, I think he was reasonably content with the way that I have addressed it. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 82 to 84:
Page 7, line II, leave out ("the parties with an opportunity") and insert ("an opportunity for each party").

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Page 7, line 17, at end insert —
("( ) The parties are to be required to attend the same meeting unless —

(a) one of them asks, or both of them ask, for separate meetings; or

(b) the court considers separate meetings to be more appropriate.").

Page 7, line 20, after ("meeting") insert ("or meetings").
The noble and learned Lord said: My Lords, I have already spoken to the amendments, and I beg to move them en bloc.
On Question, amendments agreed to.
[Amendment No. 85 not moved.]
Clause 12 [Adjournments]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 86:
Page 7, line 30, at end insert ("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 noble Lord said: My Lords, I rise to move Amendment No. 86 to Clause 12 (1)(b), which provides for the court's power to adjourn for the purpose of enabling disputes to be resolved amicably.
There is a mistake in the Marshalled List. It states incorrectly that the amendment is at page 7, line 40. It is not: it is at page 7, line 30, at the end of Clause 12(1)(b), where the amendment proposes to add the words as moved.
The unquestioned general principle, which the Government assert time and time again, is that participation in mediation must be voluntary and not compulsory. The purpose of the amendment is to ensure that there are no restrictions—direct or indirect—on the generality of the proposition that mediation must be voluntary.
We know 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 mediator, and perhaps not be able to speak up for herself as she would wish, both for herself and for the children. Let us suppose that she would prefer to be legally represented in court.
As I mentioned in Committee, 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 may hold for women. There are many who agree with her. The proposition that mediation, however hard the mediator tries, is always even-handed between the parties does not win universal acceptance from those who know about mediation in practice.
I come to the amendment. I understand only too well that, in the ordinary way, a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. Courts do say in practice to parties that there may not be much sense in going on with the battle and suggest that the parties go off to see if they can settle the matter between themselves. That often happens. However, I am
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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 if mediation is truly voluntary. It is critical that a court should never be entitled to adjourn court proceedings with a view to inducing a party whom the court thinks should be mediating to participate in mediation when that party has already decided not to do so. The point of the amendment is that it should be made plain that no court pressure of any kind may be brought on individuals to induce them to participate in mediation after they have decided not to do so.
In Committee the noble and learned Lord said:
"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—[Official Report, 23/1/96; col. 1023.]
I may have misunderstood the noble and learned Lord, but to me that sounds uncomfortably as if he were approving of the court granting adjournments to pressure people into mediation when they have taken a principled decision not to take part in mediation—a process which we are constantly assured is voluntary. The principle of voluntariness is undermined if the court is empowered to adjourn court proceedings for the purpose of enabling a dispute to be resolved through mediation when mediation has been refused by one party. I beg to move.
The Lord Chancellor: My Lords, this is not the right time to go into detail about the research on mediation. However, the general findings with regard to mediation are that men and women both describe the process as fair, and women have reported a sense of empowerment and feel that their interests are articulated and treated with respect during the mediation process.
I agree entirely that mediation should be voluntary. That is the basis on which I have put all this forward. Coercive mediation such as, for example, some of the programmes one sees in the United States, may result in women feeling under pressure to reach unsatisfactory settlements. Much of the criticism of mediation that has been voiced from some quarters is based on mandatory, settlement-orientated programmes, in the United States, which are quite different from those which are in operation here.
I do not accept that the amendment is necessary. I feel sure that the court would not seek to impose mediation on people who did not want it. I think it inappropriate that we should, in a sense, limit the powers of the court in a way that I do not think anyone suggests the court would be likely to act. A court "inducing" someone to do something strikes me as perhaps not as appreciative of the fairness and impartiality of the court as some other form of words might be. I believe that our judges who deal with these matters are very sensitive to the attitudes of parties.
Therefore, while I entirely subscribe to the view that if mediation is to be successful it must be entirely voluntary, I do not agree that it is necessary that we put

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the amendment into the Bill. So far as I know, there is no suggestion whatever in the Bill that the court may adjourn for any purpose analogous to this.
I wish to correct something. It has been drawn to my attention that, a few moments ago when speaking to an earlier amendment, I referred to Amendment No. 99A as my amendment. The propriety in that amendment belongs to the noble Lord, Lord Stallard. The Marshalled List has changed slightly since what I said was put together. I should have referred to Amendment No. 99B. Delighted as I am to refer to the noble Lord's amendment, on this occasion I had in mind to refer to my own.
I hope that, in the light of the explanation, the noble Lord, Lord Irvine of Lairg, may feel it appropriate not to press his amendment.
5 p.m.
Lord Irvine of Lairg: My Lords, I confess that I am somewhat disappointed. I believe that it is important that mediation be voluntary. The sole purpose of the amendment is to ensure that it is. If "inducing" is a hard word to use of a court seeking to persuade an individual into a course of action which the court thinks more appropriate, I should be happy to soften the provision by using "encouraging" rather than "inducing" if that removes the offence.
However, I take it that the noble and learned Lord does not accept the amendment, and I certainly do not press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 86A:
After Clause 13, insert the following new clause—
DIVISON OF PENSION ASSETS
(".—(1) Section 25B of the Matrimonial Causes Act 1973 (benefits under a pension scheme on divorce, etc.) is amended as follows—
(a) in subsection (2), after paragraph (b), there is inserted ", and
(c) in particular, where the court determines to make such an order, whether the order should provide for the assets in respect of which the rights of the party with pension rights have accrued ("the pension assets") to be divided between the party with pension rights and the other party in such a way as to reduce the pension rights of the party with pension rights and to create pension rights for the other party;";
(b) in subsection (4), after "pension rights", there is inserted "or if the court makes an order that the pension assets should be divided"; and
(c) at the end of subsection (4), there is inserted "save that, in the case of an unfunded pension scheme, no order may be made which would allow assets to be removed from the scheme earlier than would otherwise have been the case".
(2) Section 10 of the Family Law (Scotland) Act 1985 (sharing of value of matrimonial property), is amended as follows—
(a) in subsection (5) at the end of paragraph (b), there is inserted ", and
(c) in the assets in respect of which either party has accrued rights to benefits under a pension scheme"; and.
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(b) after subsection (5) there is inserted—
"(5A) In the case of an unfunded pension scheme, the court may not make an order which would allow assets to be removed from the scheme earlier than would otherwise have been the case.".").
The noble Baroness said: My Lords, Amendment No. 86A is consequential upon Amendment No. 10, which the House has debated and accepted. I beg to move.
Lord Clifford of Chudleigh: My Lords, share and share alike is an ideal which is fostered at the beginning of a marriage, through a marriage, and with children. However, because of the very presence of the children—
Baroness Hollis of Heigham: My Lords, I hope that the noble Lord will forgive my intervention. I defer to the noble Baroness, Lady Trumpington.
Baroness Trumpington: My Lords, may I ask whether the noble Lord is speaking to the amendment? He must do so.
Baroness Hollis of Heigham: My Lords, if noble Lords will forgive me, the amendment has already been spoken to in the debate on Amendment No. 10. Therefore I assumed that the consent of the House was in that sense a formal consent.
Baroness Trumpington: My Lords, I apologise to the noble Baroness. She is perfectly correct. The noble Lord will now have heard what she said. He cannot continue.
On Question, amendment agreed to.
[Amendment No. 87 had been withdrawn front the Marshalled List.]
Baroness Elles Baroness Elles moved Amendment No. 88:
Before Clause 15, insert the following new clause—

DUTIES OF COURT WELFARE OFFICER
(" .Where any proceedings under this Part are before the court and there are children of the marriage, it shall be an obligation on the Court Welfare Officer in compiling any reports in relation to the residence of the children or contact with the children to use his best endeavours to interview the children in the presence of each of the parents and, where this is not done, in coming to any decision based upon such a report the court shall adjust the weight that it shall give to that report accordingly.").
The noble Baroness said: My Lords, Amendment No. 88 provides for the duties of the court welfare officer in regard to reporting the feelings and interests of the child. Having had considerable debate about children being asked to give their views, particularly in front of the parents, in this amendment, I should be happy for the principle of the duty of the court welfare officer to be considered, but not necessarily to provide that he interviews the children in the presence of each of the parents.
Amendment No. 25, introduced extremely ably by the noble and learned Lord, Lord Simon of Glaisdale, provides that the interests of the children are represented by the Official Solicitor in certain cases. Amendment No. 62, introduced by the noble Lord, Lord Northbourne, as regards the person who should be allocated the task of speaking on behalf of the children in the court, suggests a children's officer, a guardian ad litem or a welfare officer.
I have never been quite satisfied or clear as to who my noble and learned friend considered the appropriate person to speak to the court at the appropriate time on behalf of the children. As I understand it, under the present divorce law it is for the court welfare officer to write a report on behalf of the children to represent their views, feelings and interests to the court. I also understand that because of the pace at which things move through the courts—many undefended divorces do not come before the court; the process is in writing—the interests of the children, if I may so say, are shoved under the carpet and not fully considered.
I put forward the amendment in order to find out from my noble and learned friend, or from those who practise in the divorce courts, how the interests of the child are represented to the court before divorce is granted. What is considered? What weight is given to the report of the welfare officer? Is that officer the right person to undertake that duty at the different stages at which the question of representation has been raised?
Amendment No. 137 is grouped with Amendment No. 88. I have no doubt that my noble and learned friend will speak to that himself. Perhaps I may say how grateful I am to him for having put the provisions of my Amendment No. 87 into the amended Section 41 of the 1973 Act.
Lord Moran: My Lords, like the noble Baroness, I, too, would like clarification as to what the noble and learned Lord considers most appropriate for the representation of the children's interests in court.
Like the noble Baroness, perhaps I may again express my gratitude to the noble and learned Lord for Amendment No. 137 as regards reintroducing the factor of fault in the part of the Bill where the noble and learned Lord considers it belongs.
Lord Mishcon: My Lords, I am quite sure that it is good that the noble and learned. Lord will tell us about the conduct of the welfare officer as regards the welfare of the children. However, unless I have misunderstood the wording of the amendment, I am a little worried. It seems as though the welfare officer would be prevented by this wording from seeing the child on his or her own. I should have thought that it was fundamental that the welfare officer should see the child on his own. I entirely agree that, if the welfare officer is to prepare a proper report, it would be advisable for the welfare officer to see the child in the presence of each of the parents separately. I am quite aware of that fact. But I would hate the idea that the welfare officer is told, "You are expected to interview in the presence of a parent but not to interview the child on his own".
Baroness Elles: My Lords, with the permission of the House, perhaps I may explain the position to the noble Lord. In introducing the amendment, I suggested that I should delete the words:
"in the presence of each of the parents",
or of the parents together. I hope that that answers the noble Lord's point.
Lord Simon of Glaisdale: My Lords, as I ventured to suggest last week, I do not believe that we have
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achieved a consensus on two separate questions: how the children's views should be ascertained, and how the children's interests should be represented. I respectfully agree with the noble Baroness that the welfare officer has an important part to play. He is a probation officer seconded from the probation service for specialist duties: family mediation and conciliation, particularly as regards the children. I do not believe that he is the proper person to represent the children's interests when they are required to be presented to the court, although he may well be the best person to represent the children's views.
I suggested last week that the Official Solicitor was the proper person to represent the interests of the children. I was convinced by my noble and learned friend that the Official Solicitor would not he an appropriate person to carry out that task in all circumstances and in respect of every child whose interests came before the court. However, he has a supervisory role, particularly to instruct counsel in the odd cases where the interests of the child should be represented by counsel.
I suggest that, since the Bill must go to another place, my noble and learned friend may canvass opinion more widely on the basis of the several views that have been expressed in your Lordships' House as to how the two separate functions are best performed and in what degree and what number in each case.
Lord Meston: My Lords, as I understand Amendment No. 88, it presupposes that there is before the court the question of either the residence of the children or contact with them. That would normally arise under the Children Act rather than under the provisions of the Bill. In any event, it is dangerous to think of the court welfare officer as somehow expected to represent the interests of the child in any formal sense. There are cases in which a child is represented in a formal sense either by the Official Solicitor—although resources of the Official Solicitor's office would not allow that to happen in many cases—or by a guardian ad litem from the panel of guardians ad litem.
In such situations, the court welfare officer does not formally represent the child but performs the functions of the eyes and ears of the court, to report back to the court the various material considerations under Section 1 of the Children Act. I can see that there may be cases in which a welfare officer's assistance would be valuable under the provisions of the hardship bar, as it has now been amended this afternoon.
As to the provisions of the rest of the amendment, I bear in mind the qualification as to the noble Baroness's wording, but it is normally good practice for a welfare officer in an appropriate case to speak to the child or children in the presence of each parent, if that is possible. It is normal practice that if, for some reason, the welfare officer has been unable to speak to the child in the presence of one or other parent or has somehow failed to do so, the court would give that defect weight in reaching its decision. Equally, it must be within the discretion of a welfare officer whether he or she should interview the child in the presence of a parent or alone, or whether the child should be interviewed in the

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presence of siblings or a combination of those possibilities. Therefore, with respect to the noble Baroness, I question the circumstances in which she sees the amendment as being useful. Perhaps it is simply designed to add emphasis to existing good practice.
5.15 p.m.
Lord Northbourne: My Lords, I wish to ask a question for information in relation to this amendment and some earlier ones which have referred to the real need for someone to befriend and support the child. My recollection is that Section 17 of the Children Act provides for local authorities to consider the problem of children in need in their area and to make provision for them. I should have thought that children whose parents are undergoing divorce would fall into the category of children in need and that the local authority should make provision for befriending and supporting them.
The Lord Chancellor: My Lords, there are two sets of provisions which we must bear in mind. The first provisions are from the Children Act, to which the noble Lord, Lord Northbourne, has just referred. As he rightly said, the Act contains provisions for a local authority to consider what should be done in relation to children in need. The second set of provisions, those in this Bill, are concerned primarily with divorce. There is a link between them which is elaborated in Section 41 which I seek to amend later.
In the normal case, it would be a complete waste of resources for a court to inquire into the detail of arrangements which are entirely satisfactory, made by parents about their children, where sadly their own relationship has broken down. One of the prime purposes of the Bill is to do our best to avoid any unnecessary trauma to the children in that respect. However, there will be some cases where the intervention of the court is desirable. The powers that the court has to intervene will depend on the Children Act arrangements and what should be done under that Act. We need to link the two and I have provided for that in my later amendment.
We have had discussions with children's organisations about how that can be done most effectively. We need to have information before the court about the children which will highlight the situation in which further concern is properly taken in the matters by the court. That depends on the detail of the statements required from the parties about the children. That is what I propose. I believe that that is the most effective and practical way to bring the proposals forward. It should be done by reference to rules rather than putting it on the face of the Bill. I should not be at all surprised if experience were to show that what one did first could subsequently be further improved with judicial experience of the way in which matters work.
In regard to this amendment, on the last occasion I read out the standards of practice for welfare officers as contained in the national standards. I believe they deal adequately with the problem raised in this amendment.
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With this amendment are grouped Amendments Nos. 134 to 137 in my name, and Amendment No. 144 in the name of my noble friend Lady Elles. Perhaps I might just explain how Amendments Nos. 134 to 137 are supposed to play a part. They were inspired by the amendment tabled in Committee by my noble friend Lady Elles and supported by my noble and learned friend Lord Wilberforce. I recollect his suggestion that it was highly probable that these sentiments would in any event guide the court in its consideration of these matters, but no harm would be done—and indeed some good might be done—by putting them on the face of the Bill. I paraphrase rather inelegantly the words spoken much more eloquently by my noble and learned friend.
In my view it is wise to try to take this idea forward. I considered that the amendment proposed by my noble friend identified those areas which are most likely to indicate to a court that the circumstances of a case are such as to require it to take further action. These are: how the parents have conducted themselves in bringing up the child—for example, if the child has been very well brought up and looked after in every possible way by both parents, that must be a pretty good indication that the interest in the children is likely to continue; the principle that, unless there is evidence to the contrary, it will be in a child's best interest to have regular and reasonable contact with both parents—that will be shown on the statement about what the arrangements are; if it is seen, for example, that the arrangements are that the father will have no further contact with a child, that would raise the court's interest and cause it to look into the matter further; and the risk a child may be at, either because of where a parent with residence has chosen to live or because of the person with whom that parent has chosen to live. The amendment identifies very clearly circumstances which might give rise to concern.
I suggest therefore that the most appropriate time for the court to consider these matters is when it has before it the proposed arrangements for the child's future. That will not interfere with the responsibility of parents to decide the arrangements for their children, and arrangements reached by agreement are less likely to break down than arrangements that are imposed. All noble Lords who have the experience of trying to impose arrangements on unwilling parents will have a good idea of how difficult it is to enforce such arrangements. Agreement is by far the best way forward where it is possible.
By including these factors on the face of the statute, the court will have in its mind what are the issues which, prima facie, might suggest that the circumstances are such that the arrangements should be further examined. If necessary, it will then be able to ask for welfare reports and any other information that is considered necessary in assisting the court to decide whether or not an order under the Children Act is required. That would be a supplement to what is in the statements before the court.
I now turn to Amendment No. 144, grouped with this one. The suggestion of the noble Lord, Lord Northbourne, may well be the right answer: In due course I shall move Amendments Nos. 134 to 137.

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I have sought to explain them in a little detail at this stage because they are grouped with this amendment, and also because this gives the background to a proper relationship between the divorce provisions of this Bill and the provisions in the Children Act which are designed to secure the welfare of the children in all possible circumstances in so far as the state can do so.
Baroness Elles: My Lords, I thank my noble and learned friend for his remarks, and particularly for his introduction to Amendment No. 137. There has been concern on the part of quite a lot of Members of this House as to the direct legal connection between the Children Act and this Bill; and how the interests of the child in particular will be protected by the provisions of the Children Act in relation to divorce proceedings. I am very grateful for that.
I quite understand that there will be problems over Amendment No. 88. However, I hope that my noble and learned friend heard the remarks of the noble and learned Lord, Lord Simon of Glaisdale in relation to considering in the next period who are the best people to look after the interests of the child, to speak on behalf of the child or to be available to look after the interests of the child at any particular point during the course of the proceedings. We are already grateful for the amendment to Clause 9. I think we can say happily that the position of the child in relation to the position of the parties—i.e. the parents—in this Bill has been very much strengthened by the provisions introduced by my noble and learned friend. For that I am grateful. I therefore beg leave to withdraw Amendment No. 88.
Amendment, by leave, withdrawn.
Clause 16 [Time when proceedings for divorce or separation begin]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 89:
Page 9, line 17, at end insert ("and not withdrawn").
The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 90 and 91.
These amendments deal with the time at which marital proceedings come to an end. The Bill as currently drafted provides that such proceedings come to an end on the withdrawal of an application which has been made under Clause 2. However, it is possible for there to be both an application for a separation order and an application for a divorce order before the court at the same time. The amendment provides that in this case marital proceedings will end only if all applications that have been made under Clause 2 are withdrawn. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 90 and 91:
Page 9, line 19, at end insert ("and not withdrawn").
Page 9, line 30, after ("application") insert ("or all applications").
The noble and learned Lord said: My Lords, I have already spoken to these amendments. With the leave of the House, I beg to move them en bloc.
On Question, amendments agreed to.
Clause 17 [Intestacy: effect of separation]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 92:
Leave out Clause 17.
The noble and learned Lord said: My Lords, this amendment deals with intestacy when there is a separation order. It was moved in Committee, when it was also supported by the noble and learned Lord, Lord Archer of Sandwell. I am very glad that he has put his name to the amendment again at this stage.
The law discriminates in favour of marriage in the devolution of property on death. In English law that is only on intestacy. If a testator or testatrix dies without making a will (if the deceased has died without making a will) then the surviving spouse has substantial property advantages over outsiders.
The law of Scotland, as I understand it, discriminates in favour of marriage, also in the law on testacy. I tried to table an amendment to assimilate our law more to the law of Scotland, but it was held by the Public Bill Office to fall outside the ambit of the Bill. So we have to deal only with the English law, which discriminates in favour of marriage where a deceased has died without making a will.
Where there is a divorce, there is no surviving spouse who is relevant, although there may be a new one. But where there is a separation order, the marriage subsists and (except for the intervention of Clause 17, which reproduces the law as it existed, was laid down in 1965 and re-enacted) where there is an intestacy, Clause 17 provides that the surviving spouse shall not enjoy any benefit. The property is to devolve as if she had died.
At the very outset of the Committee stage of the Bill, my noble and learned friend the Lord Chancellor assured noble Lords that there was provision for a separation order, among other circumstances to accommodate a spouse who objected on conscientious grounds to divorce. However, that clause penalises a spouse who on conscientious grounds prefers a separation order to a divorce order. It states that she will not enjoy the benefit that normally accrues to a surviving spouse.
The amendment seeks to eliminate that provision because it takes away one of the advantages which perfectly properly accrue to a spouse who has a conscientious objection to divorce or who may even quite legitimately have an idea on the property advantages. When the matter was raised in Committee, it seemed that my noble and learned friend was reasonably susceptible to the arguments that had been put forward. However, I have since had a letter from him, as has also the noble and learned Lord, Lord Archer, in which he shows himself adamant.
The amendment is very much a matter of the impression that the Bill gives to the public. It is always open to a spouse who is the subject of a separation order to make a will cutting out the other spouse who has

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obtained the order, or indeed the spouse who would benefit if this clause were eliminated may still get benefit under the inheritance, family provision legislation, although there to some extent it is discretionary. But it is a matter partly of the impression that the Bill will give to the public. It is discriminatory in favour of divorce and against separation, where there is always a chance of reconstituting the marriage. It is discriminatory against the separation order. This is one of the most blatant examples.
I said that I had a letter from my noble and learned friend. None of us has had any doubt .of my noble and learned friend's genuine adherence to the concept of marriage as a lifelong institution: a lifelong relationship divinely instituted. But I confess that I cannot feel the same confidence as to everyone whose hand has been in the Bill. By their fruits shall ye know them and one bad apple can contaminate a whole barrel. In the light of that, I read what my noble and learned friend wrote:
"Separation does not have the finality of divorce".
So far, so good!
"It does, nevertheless, seem that spouses who are judicially separated are generally unlikely to wish the other spouse to benefit from the will".
That is an utter misconception. There is no question of a will at all. We are dealing with intestacy and not testacy. The letter continues:
It therefore appears to be inappropriate to remove Clause 17, when to do so could result in an estranged spouse benefiting from the estate against a testator's wishes".
That merely reiterates the error. There is no question of a testator at all. This is a matter of intestacy. It is just a matter of saying that the normal law of intestacy shall prevail and that there shall not be discrimination against somebody who has chosen to have a separation order rather than a divorce order. I beg to move.
5.30 p.m.
Lord Meston: My Lords, the noble and learned Lord, Lord Simon, raised this important matter at Committee stage. He suggested that this provision, which in fact originated in the legislation of 1965, was somehow the product of the "Swinging Sixties", although it is perhaps not the most obvious manifestation of that particular decade of which most of us would have thought.
I suspect that the rationale for the provision that is now to be re-enacted in Clause 17, unless your Lordships agree to the amendment, was that it is supposed that by the time the death has occurred, the estranged spouse has taken advantage of the financial powers of the court in the existing legislation and under the Bill to have claimed and received whatever his or her entitlement might be to a suitable financial settlement. In those circumstances, presumably it is taken into consideration that, in awarding him or her the entitlement, he or she will no longer benefit on the intestacy of the estranged spouse.
The other factor which the court can take into consideration is that a spouse in that situation—one is now talking about a wife—by virtue of electing separation rather than divorce, will probably have
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preserved her entitlement to a widow's pension. Furthermore, if that creates some hardship, despite the provision already awarded by the court under its existing powers, as the noble and learned Lord said, following the death, the spouse concerned has the benefit of the inheritance provision for family and dependants legislation.
I question whether it is appropriate to equate a long estranged legally separated spouse, who may well have received her entitlement under the matrimonial, property and financial legislation, with a wife who is party to a truly subsisting marriage. Having thought about it, I can see the rationale for Clause 17. I suspect that it was the rationale for the original legislation in 1965.
Baroness Gardner of Parkes: My Lords, the case for this amendment was presented in a most interesting way. In replying, I ask my noble and learned friend to clarify a point for me. As I understand the law, if one has made a will and then marries, the will is no longer valid after the marriage. If one has a will and divorce takes place, does that affect an existing will which might have been made a long time ago? If I knew the answer to that I would be better able to consider this amendment.
The Lord Chancellor: My Lords, perhaps I may address myself in the first instance to this amendment. It is just worth pointing out at the start that the basic provision does not originate in the 1960s, but in the 1850s, as Section 25 of the Divorce and Matrimonial Causes Act 1857. There must be a fairly obvious point to made about that.
The original provision was intended to protect the property of separated women from their husbands. Section 25, which was consolidated into Section 194 of the Supreme Court of Judicature (Consolidation) Act 1925, and therefore into Section 20(3) of the Matrimonial Causes Act 1965, provided, on the one hand, for a married woman, after judicial separation, to be treated as not a married woman in respect of all after-acquired property; and for her after-acquired property, and any property which at the date of the decree of separation she had an interest in reversion or remainder, to pass on her intestacy as if her husband had predeceased her.
On the other hand, separated women, noble Lords will be glad to know, retained the right of inheritance on the husband's intestacy. So that was a somewhat one-sided provision designed to protect the property of separated women, while not giving the same protection to separated men. By 1969 the main justification for the provision had gone and the provision was criticised by the Law Commission in its Working Paper No. 9 and its report No. 29, as being half-hearted, arbitrary in its operation and a source of difficulty in administering estates.
The commission recommended that the provision should be extended so that it covered all property of the intestate, and so that it applied to property of both spouses. That was implemented by Clause 30 of the draft Bill annexed to Law Commission report No. 29, which became Section 40(1) of the Matrimonial

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Proceedings and Property Act 1970. So the point is that this matter was very thoroughly considered when it was reformed in the Matrimonial Proceedings and Property Act 1970.
The situation, so far as I am concerned, is that this particular provision is one which has been in the law. It is in this Bill only because, for reasons of convenience, we have repealed a number of provisions to which this measure corresponds. It was thought better, in the interests of clarity, to re-enact this measure. But if the Bill is sending out the message that there is a problem, it would not be very difficult to reinstate the existing law and alter the appeal schedule. It would be a little less convenient, but it would not make very much difference.
My noble and learned friend Lord Simon of Glaisdale referred to my letter to him and quoted from it. I do not know anything about "bad apples", but I take responsibility for all that is done. The letter is signed by me and therefore I am not speaking for anybody but myself. The point I was trying to make, rather inelegantly, was that, on the whole, experience seems to be that when parties become separated the husband, for example, does not intend or wish for his separated wife, if the separation has lasted until death, to benefit from his estate.
One can achieve that, I suppose, in a number of ways. One can make the intestacy provision go one way and then there will be a whole lot of wills going the other; or one can make the intestacy provision go the other way, in which case one does not require so many wills. I can see that it is in the interests of some that there should be a lot of wills. The point I was trying to make in the letter was that, as far as experience goes, it does not look as though there are many wills trying to alter the effect of the current law on this matter. I have not expressed it anything like as well in the letter. If I had to write the letter again I am sure that I would be able to improve on it. Your Lordships will appreciate that I have written one or two letters during the Committee stage of this Bill.
However, the most important thing I said in the letter was that I had had an opportunity of consulting, since Committee stage, with my Ancillary Relief Advisory Group, which is headed by Lord Justice Thorpe. It consists of representatives of the judiciary, the Family Law Bar Association, the Law Society, the Solicitors Family Law Association and two academic lawyers. Their view was that we should stick with the existing law. It is for that reason that I decided that the existing law should be left in. But if, as I said, there is a problem about the message of the Bill because it happens to be re-enacting existing law, I believe that I can deal with that by an amendment which takes this measure out all together and keeps the existing law in its present form.
I believe that what we have is probably more convenient for practitioners, but that of course is not certain. It has nothing at all to do with the legal effect of divorce on wills, which is a separate matter altogether, and where the only problem is separation. The law has been like this to some extent from as long ago as the 1850s although, as I have explained, it was modified considerably in 1970.
5.45 p.m.
Lord Simon of Glaisdale: My Lords, I need not deal at any length with the letter which has been referred to. My noble and learned friend has not disputed that it shows complete confusion between testacy and intestacy, which invalidates the whole objection to this amendment.
My noble and learned friend was inclined to quarrel with my statement that this provision goes back to 1965 although that was supported by the noble Lord, Lord Meston. He said that it goes back to the middle of the last century. That is at best only half-valid.
There was a provision to which he referred and which arose out of the union of two very raffish figures; I am sorry to say that one of them was a predecessor of my noble and learned friend on the Woolsack, Lord Lyndhurst. I am very surprised that my noble and learned friend should take him in any way as a model. The other was Mrs. Caroline Norton, whose husband brought an action for adultery (criminal conversation) naming Lord Melbourne, the Home Secretary—or he may have been Prime Minister by that time—as her lover. That is the origin of what happened in the middle of the last century. It was partly a precursor of the Married Women's Property Act, which was designed to protect the property of married women who were living separately from their husbands under a separation order, as it is now called. That is only half of what is now proposed, which was fully expounded in 1965.
One comes back to this: although lipservice is paid to the right of anybody on conscientious objection to prefer a separation order to a divorce order, although that is conceded, the normal law of intestacy which would benefit only such a person making such a choice is altered to that person's disadvantage.
I said at the beginning that this is mainly a question of impression rather than of substance because the separated spouse can always make a will and the person who might benefit from intestacy has some rights under family provision legislation. As a question of appearance, this once again shows how divorce-minded the Bill is and how at every turn it is in favour of divorce as against separation (where there is still some hope for the marriage because there is no right to remarry). However, in view of the fact that this is largely a matter of presentation and not of substance, I ask your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Funding for marriage support services]:
The Lord Bishop of Oxford The Lord Bishop of Oxford moved Amendment No. 93:
Page 9, line 40, leave out ("may") and Insert ("shall").
The right reverend Prelate said: My Lords, in moving Amendment No. 93, I am seeking to insert the word "shall" instead of "may" in the first line of Clause 18. The amendment seeks, as far as any legislation can, to make grants mandatory rather than discretionary. I shall not speak of the value of marriage support services because the noble and learned Lord the Lord Chancellor is firmly committed to them, as are a good number of other noble Lords. I hesitate also to put forward a case

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of financial hardship because so many charitable bodies today are doing that, but it is important to place certain financial facts and figures on the record in view of the key role which marriage support services will be asked to play.
Over the past 10 years, the contribution of central government funding to each hour of counselling undertaken by Relate, for example, has dropped from 24 per cent. to ,under 10 per cent. of the unit cost. That means that currently Relate has to find £10 for every hour of counselling delivered to supplement the funding obtained from clients and government. The sum which Relate has to raise amounted to £4 million last year and is becoming increasingly difficult to find. Exactly the same story could be told in relation to the Jewish Marriage Council, the Tavistock Institute of Marital Studies, One Plus One, and Marriage Care, the Catholic agency.
We are all conscious of the huge cost of divorce to the country as a whole. At present the Government spend something like £3 billion on picking up the pieces of broken marriages, but less than 0.1 per cent. of that sum is invested in marriage support services. A simple way of putting that is to say that for every £3,000 spent on divorce, less than £3 is spent on supporting marriage. However, as I have said, the marriage support services will be asked to play an increasingly important role in that area in terms of marriage preparation, marriage research and marital counselling, all of which we believe in. It is important that they are funded adequately. I beg to move.
Baroness Young: My Lords, before my noble and learned friend the Lord Chancellor replies to the points made by the right reverend Prelate the Bishop of Oxford, perhaps I may ask about the general funds which are given to such organisations. What proportion of the money that is given actually ends up helping married couples, either in terms of counselling or subsequently?
It is often said—some of the material that I have read from such organisations indicates this—that those organisations counsel quite a number of other people, such as unmarried couples, homosexual couples and lesbian couples. As I have said before, if public money is going into something, it should go to those parts of an organisation which the Bill is designed to support and which I think that all Members of your Lordships' House wish to support. I hope that I shall be given an answer to that question because I have received letters which indicate that there would not be such a long wait for marriage guidance counselling if such organisations concentrated their efforts exclusively on marriage guidance counselling and not on other activities.
The Lord Bishop of Worcester: My Lords, I should like to speak on behalf of those who have in principle supported the Bill from the start as being a Bill which has support for marriage and the family at its centre. That is why so many of us have supported the Bill through thick and thin.
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It is important that the services which support and bolster marriage should be funded because, if we fail on that, I believe that the last state will be worse than the first. We shall be left with a Bill which seeks to support marriage and the family but which is not able to do so. It sometimes happens that splendid legislation passes both your Lordships' House and the other place, but in the end there are not the funds to implement that which has been proposed.
If I may attempt to respond to the noble Baroness, Lady Young, it is possible for there to be pro-rata funding. That happens in a minor way in my own diocese. When I have to ask for the help of, say, marriage guidance counsellors, I can pay for that which they do without necessarily having to subscribe vaguely to their whole enterprise. So, we could deal with that problem.
The cost of divorce to this country is massive, but by comparison what we spend on services to assist marriage is minimal. I hope that we can be as good as our word and have the courage of our convictions. It is good that this Bill has been brought forward by the Government because it shows that they are concerned about the state of the nation. I hope that they will back it with the necessary funds.
Lord Elton: My Lords, I think that there is a consensus that there shall be marriage support services and that they shall be financed with the assistance of public funds. I suggest that there is also a consensus in favour of the proposition advanced by my noble friend Lady Young that that money should be directed to the purposes of the Bill specifically and not elsewhere.
I rise only to ask my noble and learned friend—I regret that I have not given him notice of this—whether he has thought further about the point that I raised in Committee when I drew attention to the need for some form of preparation during education for the responsibilities of marriage now that it comes so early in life. Indeed, parenthood often comes before the end of a school career.
I suggested that Clause 18(1)(c) should embrace research into the effects of education on marital breakdown. My noble friend did not say that that activity would fall within the definition of this subsection, nor did he go so far as to say that the money would be spent in that way. I hope that he will be able to reassure me on the definition, either now or later in writing. Amendment No. 94 appears to be grouped with Amendment No. 93. One wonders whether the noble Lord, Lord Habgood, will speak to that or whether it will be debated separately.
6 p.m.
The Earl of Perth: My Lords, I should like to support the amendment of the right reverend Prelate the Bishop of Oxford. We are grateful for the noble and learned Lord who introduced the clause. It was introduced specifically to help with the problem of marriage counselling. But I feel that the word "may" does not truly represent the feeling of the House and that what is required is "shall". Although it will still be qualified by the words "with the approval of the

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Treasury", it shows that the House is extremely anxious that that should happen. I very much hope that the amendment will be accepted and that the clause introduced by the noble and learned Lord the Lord Chancellor will to that extent be strengthened.
Baroness Gardner of Parkes: My Lords, I should like to speak to Amendment No. 93. However, I would have liked to speak also to Amendment No. 94. I see that Amendment No. 94 in the name of the noble Lord, Lord Habgood, is grouped with Amendment No. 93, but he has not moved it.
Lord Habgood: My Lords, I thought that it might be appropriate to take Amendment No. 94 separately. However, I have been persuaded that it should be grouped with Amendment No. 93, because essentially it is a probing amendment. It does not cover the same ground as Clause 18. I do not believe that mediation is included under support services, nor does the particular issue that I wish to raise come under Part II of the measure which deals with the financing of the mediation services.
The point of the amendment is the immediate concern about interim finance if the mediation services are to expand and provide effective central control of standards. When the Act has been running for some time and money comes in through legal aid there may be some other arrangements, as opposed to direct funding, to enable the mediation services to be financed through legal aid. But the particular problem is immediate. We are well aware that mediation is crucial to this Bill, but the fact is that without more resources the present mediation services may not be able to cope with the demands which will be made upon them. They are very small. The central organisation is very small. There is a danger that all kinds of enthusiastic would-be mediators will rush forward to fill the vacuum, unless the central administration of the various mediation bodies can be strengthened.
It is all the more important because the noble and learned Lord has made clear that he does not himself wish to monitor and supervise the standards of the mediation services. Therefore, it is essential to have strong central bodies to ensure that this is done and are sufficiently widespread in the nation as a whole so that they will be the obvious people to turn to, not just those who set up a badge as a mediator, which it is perfectly possible for anybody to do at the moment.
The expansion, consolidation and piloting of the experiments, which the noble and learned Lord has said he wishes to undertake over a period of about two years following the passage of the Bill, will take place at a time when presumably money will not be coming in via the legal aid channel. One looks for a guarantee of interim payments to allow the mediation services to do what must be done if the Bill is to be effective.
It may assist your Lordships if I say a word about how National Family Mediation is financed. I declare an interest because I am one of the patrons of that body. There are 60 local services to which approximately 650 trained mediators are attached. All of these local services are separate charities, and most are
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self-sustaining. They are funded from a variety of sources. They get some money from legal aid; some comes from the probation services; some charge client fees; some receive support from local authorities; and they also seek charitable funds. These are held together in National Family Mediation by the central services which consist of three paid employees to cover the whole nation. Those central services are concerned with such matters as: general policy, professional standards, the education of mediators, public relations, monitoring local services, appropriate literature and keeping in touch with mediation bodies on an international basis. All of that is done by three full-time members on a budget of less than a quarter of a million pounds. There is no core funding from the Government for that service. Unless there is core funding this tiny organisation will simply collapse.
There are pressures to bring together the three main mediation services in the country to form a so-called college of mediators which will provide training and assure standards. That cannot be done as long as the mediation services are dependent upon finance from trusts, charities and, as to a small amount, affiliation fees. For a variety of reasons (which I need not go into) trust money is drying up, not least in anticipation that if the Government put through this legislation they will pay something for it.
I fully recognise the problems faced by the noble and learned Lord the Lord Chancellor in trying to secure finance from the Treasury. I deeply sympathise with him. But there is a question of credibility here. The sums required are extremely modest but are crucial to the successful implementation of the procedures. Therefore, although I do not press the amendment, I very much hope that he can give an assurance that, first, he understands the problems and, secondly, that help will be forthcoming.
Lord Coleraine: My Lords, as a patron of National Family Mediation—which we know is the larger of the two organisations that look after mediation at the moment—is the noble Lord telling us that unless substantially more funding is available it will not be possible to get mediation off the ground and properly piloted during the two-year period presently anticipated by my noble and learned friend?
Lord Habgood: My Lords, what I am saying is that the operation of the Bill is put at risk unless there is substantial funding, because at the moment mediation services deal with about 15 per cent. —I am quoting off the top of my head—of divorce cases. If that is going to expand to what we hope for under the Bill, it must entail an expansion of central services. One is talking about a whole different scale of operation which will need the funding if it is not to collapse under its own weight.
Baroness Seear: My Lords, I should like briefly to return to Amendment No. 93 which presses that there "shall" he funds available for conciliation. That is a matter which has been of great concern to all of us interested in the Bill throughout these discussions. I should of course declare an interest in that I have a longstanding connection with the Tavistock Institute for Marital Studies.

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Without conciliation, the purposes behind the Bill cannot be achieved. Conciliation is not cheap for the individuals concerned. It is carried out usually on a one-to-one basis. It is time-consuming, and it has to be done by properly trained, skilled people who cannot come cheaply. Unless there is a requirement in the Bill that money should be available for conciliation, the purposes of the Bill will be undermined.
Mediation in the sense that the term is used in the Bill is extremely important. It is part of the Bill. We understand that there will be money for mediation in this sense, but mediation without the availability of conciliation, which will not cost money to the people who need conciliation, will not achieve the Bill's purposes. I press the noble and learned Lord the Lord Chancellor to recognise that this is at the very heart of what he is trying to do if he is trying to save marriages. On a purely financial basis, we have all heard this evening—we knew before—how much divorce costs. Conciliation, properly done, saves us money. That, if for no other reason, should commend the amendment to the Government.
Baroness Faithfull: My Lords, I support the noble Lord, Lord Habgood. One of the problems is that the mediation service—I say this as a fellow patron—has grown and is being used far more than previously. The staff have not only to deal with all the extra cases; they have to raise the money. People who would be good mediators are at the moment having to raise money in the local offices. One of the difficulties is that the mediation service is becoming well known and well used, and therefore needs the money to run the service.
Baroness Gardner of Parkes: My Lords, I am worried by both amendments. I oppose Amendment No. 93 because I believe that it is better to retain the word "may" rather than to use "shall". Although in principle I am very much in favour of marriage counselling, I should like to know how anyone judges its success to determine whether the money is being well spent. We have no idea whether many of these counselling services benefit people and in what sort of numbers.
We do not know what standards are expected of marriage counselling. In the health service we are all obliged to fit in with the Patient's Charter and achieve certain results. Will people be expected to achieve certain results with mediation and marriage counselling? I shall be interested to know.
When I listened to the noble Lord, Lord Habgood, I was worried, as I was when I attended the Law Society meeting when mediation was talked about. He confirmed what I said earlier this afternoon, that it is a huge growth industry. Anyone can set himself up—he confirmed this—as a mediator. After I left the Law Society meeting I spoke to several people who had no jobs whom I thought might well qualify as mediators. I said, "There you are, there's an opening for you. Look into that. Find out how you get into this College of Mediators, because it will be something for the future. It might be a job for you".
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There must be some standards. The Law Society told us that it has no fixed standards and that anyone can set up as a mediator. The noble Lord, Lord Habgood, has just said that. If these proposals are to be effective, there will have to be proper standards. He said—this has been confirmed by my noble and learned friend—that he will not supervise. It sounded as if no one will supervise. That worries me. We will be building up a huge counselling and mediation industry. We must be sure that it will be run in the right way and to the advantage of people and in support of marriage.
My noble friend Lady Young raised a good point. She said that many of the resources are not being spent on marriage. That is another relevant point. All voluntary organisations are having trouble surviving in terms of funding. At one point we heard from the noble Lord, Lord Habgood, that the mediators were self-sustaining—that was the phrase he used—whereas a few minutes later we heard that they needed all this extra money. There was even a suggestion that legal aid would pay for the mediators. My experience of most things that receive legal aid is that they grow faster than anything that does not receive legal aid. Again, I have reservations.
My greatest concern is to ensure that these people are suitably qualified. I should like to know what standards of qualification are being set up. I should also like an assurance that money given to them will be money well spent.
6.15 p.m.
The Duke of Norfolk: My Lords, when the noble and learned Lord replies, I hope that he will clarify a position which I thought was definite. In earlier definitions in the Bill, "mediation" has meant looking after the break-up of the marriage, counselling the two parties who are to divorce and making arrangements for the sad distribution of assets and for the future of the children.
I, too, attended the Law Society meeting in the Moses Room where it was categorically said that most of the mediators will be lawyers or solicitors who know what they are doing. It was almost a closed-shop debate. I see my noble friend Lady Gardner of Parkes nodding her head. It was said that only lawyers and solicitors could be mediators and that they would all be rewarded through legal aid.
The right reverend Prelate used the word "mediator" to cover that and in relation to marriage support agencies. As I understand it there are two things: one is mediators dealing with divorces, which is very sad, who are paid for out of legal aid; and then there is this new proposal of marriage support agencies, about which the right reverend Prelate the Bishop of Oxford has spoken, which we are introducing in the Bill. We hope that they will be rewarded by the Treasury through Votes to the Lord Chancellor who will control them with his watchful eye.
I urge that these services are supported strongly and funded properly. The kernel of the Bill is that these agencies will be able to prevent marriages ever reaching divorce. They will succour the needy who are worrying

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about their marriages. The Lord Chancellor will see that those agencies give money to heal the marriages which are going wrong.
Lord Northbourne: My Lords, I think that the noble and learned Lord the Lord Chancellor will agree that the Bill will just not work unless there is adequate provision for mediation and for the reconciliation services. While I agree with the noble Baroness, Lady Gardner of Parkes, that there is a need to control the quality of the services available, I support the idea underlying the amendments but question whether they go far enough. I am not so worried about the word "may" as about the words "with the approval of the Treasury". Can the noble and learned Lord convince the House that the Treasury is likely to support mediation and conciliation services to the tune that is required if the Bill is to work? If not, should we not be introducing an amendment to "lay upon the Lord Chancellor the duty of ensuring the provision of adequate services for reconciliation and mediation"? Is it not the case that in Australia the obligation is laid upon government to provide adequate services for mediation?
The Lord Chancellor: My Lords, two distinct matters are raised in Amendments Nos. 93 and 94 and it is important to distinguish between them. First, the amendment moved by the right reverend Prelate the Bishop of Oxford changes "may" into "shall". I understand what is behind the proposal but it is obvious that it would not do very well to have "shall" in that position immediately preceding the phrase,
"with the approval of the Treasury, make grants in connection with",
followed by a list of projects. Obviously, "shall" in that situation is worth while only if it is enforceable and no enforceability is easily associated with a clause such as that.
However, we must not lose the perspective to the operation. It is the first time that there has appeared in any statute the authority to give grants for these particular services. I hope that your Lordships will feel that it is a step forward to get such a recognition into a Bill. Obviously, it is not done without a degree of persuasion of others because many people have ideas about how they would like to spend such money and they are in competition with us.
The second point that I wish to make bears exactly on the matter raised by my noble friend Lady Young. The grants referred to under Clause 18 are in connection with the provision of marriage support services, which I would take to mean services being in support of marriage and not in connection with other types of relationships such as those she mentioned.
Secondly, I believe that research into the causes of marital breakdown is extremely important. It includes the issue to which my noble friend Lord Elton referred. If one of the causes of marital breakdown is that people get married young without adequate preparation for marriage, which is a defect which could be replaced or repaired, that would he covered by the proposal. I am not saying which project we would wish to support. As I have explained, we have already studied fully the types
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of service which are presently available. We have arranged for a seminar for people in that area to take place on 3rd April, when we will consider how the matter should be taken forward. Research into ways of preventing marital breakdown is closely related to the second project. Having found the causes the question is, what cures can be applied?
I explained during the course of the Bill that many people associate large costs with marriage breakdown. I have no doubt whatever that there are such large costs. Therefore, it is obvious that, if one can demonstrate that £1 spent in this area prevents large costs in other areas, the case for securing Treasury approval would be strong because the Treasury is no more anxious than any of your Lordships to pay out taxpayers' money consequential on marital breakdown if that can be prevented.
Therefore, one of the matters which must be attended to in any funding of projects under this clause is the arrangement made by those seeking the funding to demonstrate the effectiveness of their work. Some who have already been funded have given some demonstrations of the extent to which their work is effective. I believe that something of that kind is essential in this type of progress. Therefore, I strongly take the view that adequate support for these headings is required. The level of support which from year to year these services will receive will depend crucially on the extent to which they can demonstrate success in the objectives to which I have referred.
I have noticed that one of the objections sometimes made to the Bill is that it will produce a great army of people hitherto out of work who will suddenly find employment in this area. Your Lordships may take it that I have no intention whatever of moving down that road. I believe that such work is skilled work and that it is capable of being tested in a way that is not easy as regards much other work. My noble friend Lady Gardner referred to the health service. Your Lordships know that it is not always easy to be absolutely clear about the effectiveness of a particular treatment. Indeed, to some degree medical negligence litigation is concerned with that very problem.
I believe that this particular type of work in aggregate is capable of being tested quite profoundly. Therefore, I say to the right reverend Prelate that, first, an amendment of this kind would not be textually suitable and, secondly, that it is important that any arrangements made in this area involve a test of their success. I strongly support that type of service and I believe that it has much to offer. As the right reverend Prelate said, the importance of this Bill is that it emphasises how central to our nation are the institution of marriage and support for that institution.
Your Lordships may take it that on the basis that I have explained I shall certainly give my commitment to do everything possible to produce as good a service as one can. However, that must depend on the service demonstrating its success in avoiding the development of marriage breakdown. Standards and so forth will be reflected in the degree to which the services are successful. I hope that the right reverend Prelate will feel that that is appropriate in this connection.

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As regards Amendment No. 94, I have already made a grant towards developing standards for the mediation profession. However, as regards legal aid, I am expecting that mediation will prove to be a useful and more appropriate alternative to legal aid in many of the disputes that will be covered in the subject matter of this Bill. That too requires skill and my noble friend Lady Gardner of Parkes may rest assured that there is no question of my authorising the payment out of legal aid money to anyone who is not appropriately qualified to act as a mediator. I believe that during the course of the remarks I heard it said that the Law Society was saying that there would be a good number of lawyer mediators. I believe that it is a good profession for lawyers to follow. It has a most distinguished ancestry.
There are also people other than lawyers who may have these skills. Again, it is right that they should be developed. This process is capable of being tested because mediated agreements will be the result in these situations, and the question will be how effective they are and how well they last. So all of this is capable of being tested in a very realistic way.
The noble Lord, Lord Habgood, said that the mediation services would like more money if they can get it. I have not come across many services that are not in that position. On the other hand, these matters are being developed. They have been supported and—subject to the sort of help I have already given in respect of developing the standards to be expected in mediation when this Bill comes into effect—it is right that we should leave matters on that basis. The ultimate funding of mediation, under this Bill, will arise through the legal aid fund, by arrangements properly made under the terms of the legal aid statute as amended by the later provisions of this Bill.
I hope I have answered your Lordships' questions, particularly the point raised by my noble friend Lady Young. It is quite clear that the power in this Bill to make grants is expressly defined as relating to the support of marriage and marital breakdown and the causes and cures of that.
6.30 p.m.
The Lord Bishop of Oxford: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his reply. I know that we are all grateful that Clause 18 is there at all. We recognise that it is a considerable achievement.
As to the questions of the noble Baroness, Lady Young, I am quite clear that the main focus of all the agencies whose names I quoted earlier—education or research or marriage counsellors—is marriage in one form or another. Of course, those agencies will probably have slightly different philosophies because, as I mentioned before, they include the Jewish Marriage Council, the Tavistock Institute for Marital Studies, One Plus One and the Catholic agency, Marriage Care. As the noble and learned Lord the Lord Chancellor said, the focus of the Bill is clearly on marriage.
The noble Baroness, Lady Gardner of Parkes, quite properly raised questions about standards and results. I have been pressing for only properly approved
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organisations to be mentioned in the Bill, and if there is a roster of properly approved organisations that will be one way of monitoring standards and results. I am sure these organisations, being reputable organisations, would not fear in any way a proper critique of their achievements or lack of them. They are professional bodies and open to scrutiny.
I do not have a full set of figures but there are two points which relate to the questions raised. A recent Relate study shows that 25 per cent. of couples who were living apart at the start of counselling were living together six months after the completion of counselling. Secondly, 10 per cent. of couples who thought that their marriages had ended said that as a result of attending counselling with Marriage Care they had discovered the energy to start again. Those figures are by no means definitive, but I am sure their work would be open to any scrutiny. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 95:
After Clause 18, insert the following new clause—

TRANSITIONAL PROVISIONS
(".—(1) The "special procedure" (whereby petitions for divorce based on section 1(2)(a), (b) or (c) of the 1973 Act have accelerated and informal consideration) is hereby abolished.
(2) No decree of divorce shall be pronounced in respect of any petition based on section 1(2)(a), (b) or (c) of the 1973 Act until a period of twelve months for reconciliation, reflection and consideration has elapsed since the date on which the court received the petition.").
The noble and learned Lord said: My Lords, this, I venture to say, is an important amendment. It gets rid of the roundly denounced, universally denounced, so-called quickie divorce.
Subsection (1) of the new clause gets rid of it procedurally, and subsection (2) of the substance. I am speaking also to Amendment No. 116, which is the effective implementation.
The necessity for this new clause rose late on the last day in Committee, in fact after eleven o'clock. The noble Lord, Lord Coleraine, told me when this legislation would be brought into effect, and my noble and learned friend the Lord Chancellor said he thought it would be two years after Royal Assent. I do not quarrel with that. It is eminently sensible to make sure that the administrative substructure is in place first. We have the care that was taken over the Children Act on the one hand, which has been a success, and, on the other hand, the disaster that followed the Child Support Act. The necessity, therefore, is to make sure that the quickie divorce disappears as rapidly as possible and does not have to wait two years until my noble and learned friend is ready to bring the rest of the measure into effect.
I do not need to expatiate on the disadvantages of the so-called quickie divorce. They were in the forefront of the propaganda in favour of this Bill, which was heavily promoted by the Lord Chancellor's Department. The noble Lord, Lord Irvine of Lairg, gave a description of how it worked procedurally, and it certainly reflected no

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credit on the law. It was a patent step towards what has always been the ultimate aim of the extreme permissive divorce reformers; namely, the simple registration of a divorce—as simple as the registration of a marriage, or even simpler.
One has to go back, as subsection (2) shows, to the 1969 Act, although I have cited it in its re-enactment in 1973. As your Lordships now well know, the Divorce Reform Act pretended to be based on irretrievable breakdown of marriage but in fact depended on the so-called five facts which, together, were the exclusive grounds of breakdown that could be alleged, and any one of them was a conclusive ground.
The first, as your Lordships know well, and is referred to in Section 2, is on the ground of adultery. But it was divorce in a new form. It was divorce stripped of anything which might impede it; for example, an agreement to produce the evidence of a divorce or even plotting that a divorce should take place—even one party plotting that the other should commit adultery because connivance and collusion disappeared.
The second ground was unreasonable behaviour. The third ground was desertion for two years, reduced from three years. The third introduced into our law for the first time divorce by consent after two years' separation. Both Church and state stood against divorce by consent over the centuries because the Church said that it is inconsistent with the vows that have been made, not just privately but in the face of the congregation. The state said that the institution of marriage was more than the concern of the spouses themselves; it was a fundamental institution of society.
The last ground was unilateral separation after five years. In fact, that was the only ground that was before the Royal Commission because irretrievable breakdown was very much an afterthought. But the ground of unilateral repudiation was rejected by Archbishop Fisher giving evidence on behalf of the Church of England to the Royal Commission on marriage and divorce. Notwithstanding that, that measure was handed over by the Lord Chancellor's Department and negotiated by the Law Commission with a Private Member. It was supported by the Bishop of Exeter in your Lordships' House who volunteered to act as a Teller.
As early as February 1970, before that measure had ever come into force, it was pointed out in a lecture to the Institute of Legal Executives at the annual Riddell lecture that the earlier provision could be used for divorce by consent. The promoters of the Bill in both Houses had assured Parliament that although the measure introduced divorce by consent, it was only after two years separation. But it was pointed out that adultery, without the bars of collusion or connivance, could be used to achieve an immediate divorce.
Nevertheless, the Law Commission and the Lord Chancellor's Department proceeded to consolidate the 1969 Act into the 1973 Act where we now have it. But they did not stop there because they brought in subsequently the procedural provision of the quickie divorce. One could immediately obtain a divorce by consent with a put-up case of adultery. That could then
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be rushed through the courts informally, rapidly and disgracefully, in the way that was described by the noble Lord, Lord Irvine of Lairg.
That is the position that we have—a thoroughly discreditable provision of the law which is relied on as the principal ground for this measure. It is abrogation strongly relied upon. Talking to Members of your Lordships' House, I have found that even those who are deeply disturbed about the thrust of the Bill before us say that at present one can obtain a divorce in an average of six months and at least this Bill stipulates a 12-month lapse. Therefore, is it not plain after that which the noble Lord, Lord Coleraine, ascertained, that there is urgent need not to wait for two years and possibly more but to get rid of that disgraceful provision immediately? That deals with that subsection.
Amendment No. 116 amends the Bill to the effect that the provisions can be brought into force, and stipulates that this particular provision shall come into force on the passing of the Act. I beg to move.
6.45 p.m.
Lord Moran: My Lords, I have put my name to this amendment and I strongly support it. It seems to me to be very important that we should remove the special procedure at the earliest possible moment. I too listened to the noble Lord, Lord Irvine of Lairg, at an earlier stage when he described this procedure. What he said was quite new to me and I did not realise that such a high proportion of today's divorces go through simply by post. They arrive at the court and are dealt with, so to speak, on the nod with minimum consideration. That seems to me to be profoundly unsatisfactory and I am quite sure that we should try to remove that procedure, as my noble and learned friend Lord Simon of Glaisdale has suggested, at the earliest possible moment and not wait for two years.
Lord Coleraine: My Lords, I support the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, because I believe that it is necessary to provide some form of interim law to cover the period of at least two years before this Bill is brought into effect.
I should like to add that it seems to me that one should go further than is proposed by the noble and learned Lord's amendment because the effects of a quickie divorce are as much ill thought out in the ground that must be proved as in the speed at which the divorce can be achieved. I am talking about the behaviour ground.
It is well known and referred to at paragraph 2.5 of the White Paper that it is almost impossible to defend the behaviour ground in a divorce. The White Paper states:
"The details pleaded in divorce petitions in support of, for example, the fact of intolerable behaviour, do not need to be corroborated and are irrebutable. Such allegations are therefore easy to make and easy to establish".
Experience shows that they are almost impossible to defend.
In our debate on Thursday last on the debate on Amendments Nos. 11, 12 and 13 in the name of my noble friend Lady Young, which would have

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re-introduced fault into the divorce law, the right reverend Prelate the Bishop of Oxford described the case of a friend of his who had written to him to explain what had happened in his divorce. The letter read:
"The solicitor advised her,"
that is the wife,
"that she could get a quick divorce if she went for unreasonable behaviour. This did not include adultery or violence. It did include her view of my failings vastly exaggerated by the solicitor for the purpose of proving that the marriage had irretrievably broken down".
The letter went on to say:
"The 'faults' did not seem legally serious enough for divorce".
The right reverend Prelate observed correctly:
"The present law is very flawed, as we have heard from that moving testimony".—[Official Report, 29/2/96; col. 1652.]
Had I been able to speak in that debate, I would have drawn the attention of the House to the fact that the amendment moved by my noble friend was drafted in terms to improve the fault ground of behaviour. Under Section 1(2)(b) of the Matrimonial Causes Act 1973, what has to be shown is,
"that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."
On a true construction of those words, I understand that "petitioner" means the particular petitioner in the case under consideration and not the ordinary,
"reasonable spouse considered as petitioner."
Therefore, the test of behaviour is subjective, not objective. It means that, in determining whether a particular petitioner can or cannot reasonably be expected to live with a particular respondent, the court has to take into account the character and personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged.
The amendment to which my noble friend spoke last week, Amendment No. 12, would have changed the grounds so that it would have to be proved that,
"the respondent has behaved in such a way that a reasonable spouse, considered as petitioner, could not be expected to live with the respondent".
If that had been appreciated, I believe that the right reverend Prelate the Bishop of Oxford would have realised that it will not be so easy in the future to get away with a behaviour ground merely by saying, for example, "My husband was very messy in the bathroom, he would leave his pyjamas on the floor. I, being the person that I am, found it intolerable to live with him". In fact, an objective ground for divorce would have been introduced. That was one of the points which the noble Lord, Lord Meston, addressed when he dealt with and commented upon the points raised by the right reverend Prelate.
If the noble and learned Lord, Lord Simon of Glaisdale, wishes to produce an amendment which would really get rid of all the bad effects of the quickie divorce, I believe that he ought also to look at the behaviour grounds in the 1973 Act, and incorporate the
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words proposed by my noble friend Lady Young, or other words. That way he would ensure the introduction of an objective definition of the behaviour ground.
Lord Meston: My Lords, I should, first, declare an interest in that no one present in the Chamber would be more pleased than myself—with the possible exception of the noble Lord, Lord Phillimore—if the so-called "special procedure" were abolished. Its introduction was a fairly serious financial blow to the junior Bar and was undoubtedly intended to effect a considerable saving to the legal aid fund. Indeed, I am quite sure that it had that effect.
At the time, I remember we all grumbled that one still needed a hearing in open court to wind-up a company but not to wind-up a marriage. Before the introduction of the special procedure, the petitioner had to go to court with his or her lawyers and give oral evidence to a judge of the breakdown of the marriage and evidence of the supporting facts which were relied upon. The procedure introduced in the 1970s converted that into a largely paper exercise.
However, I question the phraseology in the amendment. In particular, I question whether the "special procedure" can now be described as an "accelerated" procedure. The special procedure involves a number of stages. The petitioner has to apply for the petition to be considered by the court and swear an affidavit, or make an affirmation in support. The district judge has to certify that he is satisfied that the petitioner has made good his or her case and is entitled to a decree. He then has to fix a date for the announcement of that decree.
I seriously question whether that practice is any quicker than the machinery which existed before the introduction of the special procedure, whereby the petitioner simply applied for a hearing date and the petition, if undefended, was set down in a list of cases for hearing by the court on a particular day. If the process was any slower before the introduction of the special procedure, it can only have made a difference of weeks and certainly not of months. Therefore, I invite noble Lords to consider whether they are in fact, by way of the amendment, doing away with the so-called "quickie divorce".
I also question the use of the word "informal". It is certainly true that under the special procedure, the petitioner does not have to give evidence in open court, but he or she still has to swear an affidavit or make an affirmation in support of the matters set out in the petition. That is treated sufficiently seriously in that, if a false affidavit is sworn and discovered, the Queen's Proctor can intervene in the normal way.
With respect, I should point out that the noble Lord, Lord Coleraine, made a separate point about defended divorces. We are in fact talking about the special procedure, which applies only to undefended divorces. However, the noble Lord is perfectly right to say that it is not altogether easy under the present regime to defend a divorce, especially if behaviour is alleged. But the Legal Aid Board takes the view that it is common ground that the marriage has irretrievably broken down. There are certainly considerable procedural pressures

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within the machinery of the court to persuade people to compromise divorce suits so that they do not take up substantial time in the courts with arguments over allegations of behaviour which, if necessary, can be watered down. The question of defending divorces is not the same as the issue regarding the special procedure. I wonder whether the abolition of that procedure would really make any impact on the speed with which an undefended divorce could be obtained.
Baroness Elles: My Lords, I should like to express my support for the principle set out in the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. The noble Lord, Lord Meston, pointed out that there may be technical difficulties in so far as we are talking about undefended divorces. He also wondered whether the amendment would have the desired effect which lies behind the noble and learned Lord's proposals.
As I understand it, those proposals entirely support what my noble and learned friend the Lord Chancellor has been saying right through the proceedings on the Bill; namely, that one of the main purposes of the legislation is to abolish quickie divorces. He could not see why someone who was at fault should be able to get a quick divorce and be able to remarry, whereas in other cases, if one had to wait for consent for two years or five years, the innocent party may be prevented from remarrying. I understand that to be one of the principles involved.
The other principle stressed by my noble and learned friend this afternoon is in sticking firmly to his view that, under the Bill, the minimum time from the date of the statement should be a year. That will give couples time for reconciliation, reflection and consideration. Regardless of the actual wording of the amendment, it is quite clear that the noble and learned Lord, Lord Simon, has the objective of introducing a system whereby the quickie divorce is stopped and no divorce granted until after one year from the time when the petition is presented to the court.
I suggest that the principle underlying Amendment No. 95 and the implementing amendment, Amendment No. 116, should be looked at again and, possibly, retabled on Third Reading. I hope that my noble and learned friend will agree that the principle is one that he can support. That redrafting should also take into account one problem not addressed by the current amendment; namely, the question of those divorces which are, so to speak, on track at present.
I think it would be very difficult to introduce with this Bill at Royal Assent that this particular amendment or principle should be adopted straight away but then only start the new system as from the date of the Act coming into force which would not be made retrospective.
Lord Stoddart of Swindon: My Lords, since I have signed the amendment I would like briefly to support what has already been said by the noble and learned Lord, Lord Simon, and others. I believe that the case that has been put is entirely logical and one which I hope the noble and learned Lord the Lord Chancellor
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will accept. The only thing that strikes me is that all the way through this Bill we have been talking about the necessity to end quickie divorces. It seems to me that we need not have had this Bill at all. All we need to have done was to repeal the 1973 Act and we would have achieved what the noble and learned Lord wanted to achieve and what everybody else apparently wants to achieve.
7 p.m.
Baroness Young: My Lords, I want to support everything the noble and learned Lord, Lord Simon of Glaisdale, has said on this. This is entirely in line with what the noble and learned Lord the Lord Chancellor wishes: that is, to get rid of the so-called quickie divorce and to keep, as my noble friend Lady Elles said, the month. As I understand it, the special procedure fixes the time between the decree nisi and the decree absolute at six weeks at least, which by any measure is a very short time. The original statute suggested six months. What we would be doing by this would be having a year. This is a very important principle. If we believe in it we should stand by it.
The Lord Chancellor: My Lords, the principle of the quickie divorce is that you get divorced more quickly if you allege fault than if you do not. That is my understanding of the principle behind it and that is enshrined in the present law. This amendment is not intended to take effect to change that while the matter is in transition. I am certainly very much in favour of doing away with that principle because I think that it is inimical to any kind of signal that fault is something of which Parliament disapproves and to which a stigma is attached.
This amendment does not attempt to do that. What it seeks to do is to produce on the existing law some part of what we are proposing: the one-year period of reflection and consideration. As I understand it, this transition will allow—indeed, require—allegations of fault to be made in the petition. The amendment refers, as your Lordships have it, to grounds I (2)(a), (b) or (c) of the 1973 Act; that is to say, grounds which require the allegations there referred to to be made. If I thought that that was a reasonable way forward I would certainly have considered that for the main provisions, but the point is that that destroys the idea of reconciliation. If you have to start off your petition by making allegations of fault you destroy the whole basis—
Lord Simon of Glaisdale: No, my Lords. What it does is to accept what my noble and learned friend proposes, namely, that for the next two years there will be a petition based on adultery or on unreasonable behaviour. It does no more than accept what he proposes.
The Lord Chancellor: My Lords, it does a good deal more than that because it seeks to impress upon that a period of reconciliation, reflection and consideration. What is more inimical to reconciliation and reflection with the purpose of restoring the marriage than to require that the process starts with allegations of fault? I would have thought, with great respect to your

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Lordships, that this would be introducing the concept of the period for reflection and consideration in the worst possible atmosphere where it has very little chance of success.
Lord Coleraine: My Lords, is the noble and learned Lord, Lord Simon, saying that the period for reflection and conciliation is going to come into effect from the beginning of the Bill, from when the Bill receives Royal Assent, or shortly afterwards, because it seems to me that what the noble and learned Lord, Lord Simon, is saying is that this amendment is to take place before the provisions of the Bill come into effect, which would introduce this period of reflection and consideration.
The Lord Chancellor: My Lords, my noble friend has read the amendment and, as far as I can understand, the amendment in subsection (2) of it does just that. It says,
"No decree of divorce shall be pronounced in respect of any petition based on section 1(2)(a), (b) or (c) of the 1973 Act until a period of twelve months for reconciliation, reflection and consideration has elapsed since the date on which the court received the petition".
Can your Lordships imagine a better way to destroy the idea of reconciliation than to start off by making allegations of fault on the basis of adultery that has destroyed the marriage or conduct that has destroyed the marriage? It is impossible to put these two together and have a workable system.
I would love to go down this road; I would love to stop quickie divorces tomorrow, but the problem is that you have to substitute something better. You have to substitute something which has a chance of working. What I want to substitute is a period for reconciliation, reflection and consideration, and the best way to destroy that is to require the people to make these allegations to begin with. If we do go down this road your Lordships will be seriously damaging the period of reconciliation, reflection and consideration before it gets a proper chance to operate. I am anxious to introduce this new machinery as quickly as possible.
In answer to my noble friend, Lord Coleraine, I said that we need to do it deliberately because I want it to work, but the last thing I want to do is to introduce it against a background which is calculated to destroy it before it starts. I am as keen as anybody to stop these types of divorce but I do not believe you can do it by this means in a way that is likely to be effective.
The second point I want to make is this. As the noble Lord, Lord Meston, has pointed out, all you would be doing is elaborating a procedure which has very little effect. I explained to your Lordships the other day, the previous day on Report, that in my early days it was all fault-based and the idea, for anyone who actually experienced it, that that helped and made marriage more successful and helped to produce reconciliation is just nonsense.
Much as I would like to support getting rid of these divorces quickly, the only way to do it is by introducing a constructive, properly thought out new system asthis Bill seeks to introduce. I believe it will do that if your
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Lordships pass this Bill in something like its present form. However, I believe that the system in the amendment will not do so.
If your Lordships look at subsections (1) and (2) of the amendment, what is the point of subsection (1) unless you wish to give, as the noble Lord, Lord Meston, said, more legal aid money to lawyers? If your Lordships wish that as an aim in itself then you will pass this amendment. But if, on the other hand, you wish me to use the money to help set up something better, then you will refuse this amendment. I cannot see for the life of me what the benefit is of subsection (1) of this amendment. I can see some sense in subsection (2) but for the insuperable problem to which I have drawn attention, namely, that you do not have much of a chance of reconciliation if you have to start off by alleging that the marriage has broken down by one of the named features. I hope that your Lordships who share my view that the sooner we get rid of the present system the better will not support this amendment on the grounds that it does so.
Lord Simon of Glaisdale: My Lords, I am grateful to all those who supported the amendment. I am particularly grateful to the noble Baroness, Lady Young, who put it as a point of principle, which it is. So your Lordships are free to vote on the amendment as conscience directs.
My noble and learned friend said over and over again that the amendment requires the person seeking a divorce to allege a fault. It does no such thing. It requires nobody to do anything. It proceeds on the basis that for the next two years that is how divorces will be obtained. I do not accept for a moment that because a fault has been alleged in a petition there is no opportunity, no suitable need, for consideration, reflection and, if possible, reconciliation. There are many petitions where the parties can be helped in that way by being delayed for a year and being given assistance with counsellors.
The quickie divorce is such a disgrace to the law and such an affront to the institution of marriage that I must ask your Lordships to support me in the Division Lobby.
7.11 p.m.
On Question, Whether the said amendment (No. 95) shall be agreed to?
Their Lordships divided: Contents, 27; Not-Contents, 101.

Division No. 1

CONTENTS

Archer of Weston-Super-Mare, L.

Halsbury, E.

Ashbourne, L.

Harris of High Cross, L.

Clifford of Chudleigh, L.

Howell, L.

Coleraine, L.

Kilbracken, L.

Craigmyle, L.

Kinloss, Ly.

Cross, V.

Massereene and Ferrard, V

Elles, B.

Moran, L. [Teller.]

Fitt, L.

Northbourne, L.

Gardner of Parkes, B.

Orr-Ewing, L.

Grantley, L.

Pearson of Rannoch, L.

Griffiths of Fforestfach, L.

Perth, E.

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Robertson of Oakridge, L.

Stallard, L.

Stoddart of Swindon, L.

Simon of Glaisdale, L.

Young, B. [Teller.]

NOT-CONTENTS

Acton, L.

Irvine of Lairg, L.

Addison, V.

Jeger, B.

Allenby of Megiddo, V.

Jenkins of Putney, L.

Beloff, L.

Kinnoull, E.

Birdwood, L.

Lawrence, L.

Blaker, L.

Lindsay, E.

Boardman, L.

Lindsey and Abingdon, E.

Boyd-Carpenter, L.

Lockwood, B.

Brabazon of Tara, L.

Long, V.

Burnham, L.

Lucas, L.

Carmichael of Kelvingrove, L.

Lyell, L.

Carnegy of Lour, B.

McColl of Dulwich, L.

Carnock, L.

McConnell, L.

Carter, L.

Mackay of Ardbrecknish, L.

Chalker of Wallasey, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Chesham, L. [Teller.]

Clanwilliam, E.

Mackintosh of Halifax, V.

Colwyn, L.

Marlesford, L.

Courtown, E.

Mason of Barnsley, L.

Craigavon, V.

Mersey, V.

Cranborne, V. [Lord Privy Seal.]

Meston, L.

Cumberlege, B.

Miller of Hendon, B.

Darcy (de Knayth), B.

Monkswell, L.

Dean of Harptree, L.

Mountevans, L.

Denham, L.

Moyne, L.

Dixon-Smith, L.

Munster, E.

Donoughue, L.

Northesk, E.

Dornand of Easington, L.

Oxfuird, V.

Dubs, L.

Park of Monmouth, B.

Dundonald, E.

Perry of Southwark, B.

Elton, L.

Peyton of YeoviL, L.

Faithfull, B.

Phillimore, L.

Falkland, V.

Rawlings, B.

Flather, B.

Redesdale, L.

Gainsborough, E.

Renton, L.

Geddes, L.

Russell, E

Glenarthur, L.

St.John of Bletso, L.

Goschen, V.

Seear, B.

Graham of Edmonton, L.

Shaw of Northstead, L.

Grey, E.

Smith of Gilmorehill, B.

Habgood, L.

Stedman, B.

Haddington, E.

Strathclyde, L. [Teller.]

Hamwee, B.

Taylor of Blackburn, L

Harris of Greenwich, L.

Taverne, L.

Haskel, L.

Thomas of Gwydir, L.

Henley, L.

Tordoff, L.

Holderness, L.

Trumpington, B.

HolmPatrick, L.

Wade of Chorlton, L.

Hooson, L.

Wilcox, B.

Howe, E.

Wise, L.

Inglewood, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
Baroness Trumpington: My Lords, I should like to say that I was quite wrong, and I have already apologised in writing to the noble Lord, Lord Clifford, in preventing him from speaking when it was his right to do so. It is, of course, open to any noble Lord to speak to any amendment at the point when the Question is put.
I beg to move that consideration of the Report stage of the Bill be adjourned until twenty-past eight.
Moved accordingly, and, on Question, Motion agreed to.

Contracting Out (Management Functions in relation to certain Community Homes) Order 1996
7.20 p.m.
Baroness Miller of Hendon: My Lords, I beg to move that the draft Contracting Out (Management Functions in relation to certain Community Homes) Order 1996, laid before the House on 16th January, be approved.
Your Lordships will recollect that the Criminal Justice and Public Order Act 1994 included powers of demonopolisation of the provision of secure accommodation in residential children's homes. That measure was brought forward after full consultation with local government and the voluntary and private sectors. The power was implemented in May last year. Also included in the Criminal Justice and Public Order Act was a power to enable local authorities to contract out the management of existing secure accommodation in community homes and, with the consent of managers, in controlled community homes.
That power will be implemented shortly. The statutory instrument before us today relates to an order-making power included in the Deregulation and Contracting Out Act 1994 and will enable local authorities to contract out the management of open (non-secure) accommodation in community homes. We have consulted on this measure with interested parties, including local government organisations.
All the powers that I have mentioned are interrelated. They support the Government's policy towards the child care system, which is to encourage a wide and diverse range of providers as in other aspects of social services. We believe that local authorities should be able to bring the philosophy and experience of the voluntary sector or the particular skills of the private sector to bear on the management of children's homes. Local authorities should also be able to choose from a range of options in their search for the most efficient and effective ways of providing accommodation for "looked after" children.
Residential care remains an important element in the options open to local authorities in placing looked after children. It represents a positive choice, not a last resort, and the quality of care should be of the highest order. This measure offers local authorities greater flexibility in making arrangements for such care.
I should like to reassure your Lordships that local authorities will continue to be responsible for decisions about the placement of children in their care and they will continue to have proper regard for the rights and welfare of young people.
I should also like to make it clear that, as soon as a legislative opportunity presents itself, the Government will bring in a power to enable local authorities to contract out open accommodation in controlled community homes. The lack of such provisions presents an anomaly which, because of parliamentary time constraints, we were unable to rectify when the Deregulation and Contracting Out Act 1994 passed through this House.

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This matter has already received consideration in the Standing Committee of the other place, where it was not opposed. Indeed, it was described by the Opposition as largely "uncontentious".
Moved, That the draft order laid before the House on 16th January be approved [6th Report from the Joint Committee].—(Baroness Miller of Hendon.)
Lord Carter: My Lords, the House will be grateful to the Minister for her very clear explanation of the order. I did not entirely understand one point. Paragraph 2(2) leaves out of the order the contracting out—or the privatisation—of secure homes. When the Minister replies, perhaps she will amplify the last point that she made about the new order which the Government intend to bring in. She referred to,
"open accommodation in controlled community homes".
I presume that those are not homes which are secure homes. Perhaps she will clarify that point, because those are specifically left out of this order for reasons that I fully understand. If she will explain that, I shall be grateful.
From these Benches we are pleased to support the order. I have a few questions on clarification. What are the cost implications, if any, for the local authorities? Are they related to costs or efficiency? How will emergency referrals be handled? Will the contracts let be based on the number of places provided with some spare capacity allowed, or will the contracts be let on some other basis? I imagine that there are occasions when those homes are used for temporary accommodation while children are awaiting fostering. Presumably there will have to be some leeway in the contract to allow either for temporary use or for emergency referrals.
Will the Minister also tell the House what arrangements will be made for the education of the children where the management is contracted out? Will the contract have specific educational provisions or are those to be the responsibility of the relevant education authority? If there is an overlap between the two, how will it be handled?
Finally, and most crucially, what are the inspection and supervision arrangements for these contracts? Who will be finally responsible for ensuring that the requirements are met which we all accept? We have had some unfortunate episodes in children's homes in recent years. I am sure that the Minister is satisfied, but we should like it on the record that contracting out will not lead to a greater risk of such unfortunate incidents.
The children in these homes have come from disturbed and disadvantaged backgrounds. We should not add to the burdens on them. I am sure that that is not the intention of the order. If the Minister will explain those points, and, in particular, the open and controlled environment, I shall be grateful.
Baroness Miller of Hendon: My Lords, I am grateful to the noble Lord, Lord Carter, for his thoughtful contribution, and the questions that he posed. I shall do my best to deal with those anxieties. I shall leave his first concern until the end.
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The first question that the noble Lord asked me was how local authorities will meet the cost of placing children. There should not be any costs. The revenue costs of running children's homes already fall on the local authorities, which may charge other authorities placing children. Central government also pays local authorities in respect of certain types of placement. That will continue. However, if there are cost implications regarding the management, those will be offset by savings in not having directly to manage the homes.
The noble Lord was concerned about emergency referrals and spare capacity. If the judgment of the local authority is such that some spare capacity is needed, there is no difference between allowing for spare capacity in local authority-run homes and those subject to contracted out management. They may all be part of the contract and one would expect it to be covered by the contracting out services within the home.
One would expect the education and question of where the authorities place the children to be arranged through the contracts. We are certainly not trying to change the regime in any way.
The noble Lord is right to bring attention to the importance of inspection. I am pleased to tell him that inspection arrangements for children's residential care are being considered as part of the 1995 review, which deals with all inspection and regulation arrangements. But in the meantime, as the purchasers, local authorities will wish to satisfy themselves about the level and quality of care service which is provided. The contract, in effect, will be a powerful tool that the local authority can exercise.
Section 70 of the Deregulation and Contracting Out Act does not allow secure homes to be contracted out but the Government intend to enable contracting out of secure and controlled community homes when the legislative time allows. As I understand it, the controlled homes are a historical anomaly; they were the old approved homes. They are not covered by the secure homes legislation to which I referred at the beginning of my speech.
I am sure that noble Lords will agree with me that the measure before the House today will allow local authorities greater flexibility in the delivery of an important service. Residential care remains a significant element in looking after those children who, for one reason or another, are in the public care. For, while the number of young people placed in residential care has reduced in recent years, those who are placed are often the most difficult and disturbed. We owe a duty to them to ensure that high quality services are available and that those services represent value for the taxpayers' money. The contracting out order achieves this by ensuring that all the safeguards currently in place will remain, added to which the wealth of experience of the voluntary and private sector can be brought to bear on this area of provision. I hope that I have managed to reassure the noble Lord on the matters that concerned him. I commend the order to the House.
On Question, Motion agreed to.
Lord Lucas: My Lords, I beg to move that the House do now adjourn during pleasure until twenty minutes past eight.

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Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.31 to 8.20 p.m.]

Family Law Bill [H.L.]
Further consideration of amendments on Report resumed.
Clause 19 [Interpretation of Part I etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 96:
Page 10, leave out line 8.
The noble and learned Lord said: My Lords, this amendment is consequential on the decision of the Committee that Clause 6 of the Bill introduced into the House should not stand part. The essential part of Clause 6 has now been incorporated into Clause 4 in such a manner as no longer requires the definition in Clause 19. I beg to move.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 96A:
Page 10, line 13, at end insert—
(" "mediation" means family mediation conducted by a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of this Part by the Lord Chancellor.").
The noble Baroness said: My Lords, in moving this amendment, I seek to speak on the National Family Mediation Service. There has been so much misunderstanding concerning both the service and those who work in it that I hope noble Lords will forgive me if I give a full explanation, including a definition of the family mediation service.
Family mediation is a process in which an impartial third person—the mediator—assists couples considering separation or divorce to make arrangements to communicate better, to reduce conflict between them and to reach their own agreed decisions. The issues to be decided may concern separation; the divorce; children; finance; and property. The mediator has no stake in any dispute, is not identified with any of the competing interests and has no power to impose a settlement on the participants, who retain authority to make their own decisions. Couples enter mediation voluntarily to work together on the practical consequences of family breakdown and to reach proposals for settlement which may then be endorsed by their legal representatives—that is important—and the court, wherever appropriate. Mediation offers an alternative to negotiation by solicitors and to adjudication through the courts, but is not a substitute for legal advice.
There are three routes to the mediation service: one, as a result of an information session; two, referral from a solicitor; and three, a direction from the court.
Those working in the mediation service are carefully chosen and, if accepted, are trained. Having trained, they work; and for the first few months their work is supervised. Many mediators are professionals: probation
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officers, solicitors, and in some cases doctors; and there are lay people who are interested in the work and suited to it.
It is with sadness and regret that I hear some people talk about mediators as "the do-gooders". I remind such people that, for instance, members of the Magistrates' Association are not necessarily professionals; they are not necessarily trained in the first instance, and all are volunteers, drawing only their expenses. I suggest that mediators fall into the same band.
Mediators receive training. A college for mediation has been set up under the guidance of Dame Margaret Booth, a former judge. The role of the college is to make recommendations as to the content of the courses, their standard, and a high structure of accreditation. Other professions have a college: there is the Royal College of Nursing, the BMA, the Royal College of Psychiatrists, and many others. As with other colleges, this amendment seeks approval for a body which aims to raise standards, produce a programme of training and provide accreditation.
I fully appreciate and well understand the noble and learned Lord's desire not to regulate professions such as mediation. I shall, however, be interested to learn what it is that persuades him that granting approval—quite a different matter—to a body concerned with mediation for the purposes of Part I would require him to act as a regulator for that body. I ask the noble and learned Lord whether he does not consider it right that the mediation service is approved—not regulated, approved—as is the case with other professions. I beg to move.
Baroness Trumpington: My Lords, is my noble friend also speaking to Amendment No. 98AA?
Baroness Faithfull: No.
The Lord Chancellor: My Lords, notwithstanding that very short answer, I think my noble friend's remarks in respect of Amendment No. 96A probably cover Amendment No. 98AA as well.
Mediation primarily arises in this matter from the provisions of Part II in relation to legal aid. There are concerns about protecting a client against the risk of incompetent mediators. It is clearly important that at a stressful time of life, during the breakdown of a marriage, couples consult professionals who can be trusted to perform a good job.
However, I do not see this as an area in which the Government should be subjecting the mediation profession to unnecessary regulation. I am not persuaded that the consumer is at significant risk. National Family Mediation and the Family Mediators Association have in place procedures to ensure adequate selection, training, supervision and accreditation of family mediators and powers to remove individuals or mediation services from the registers if they do not reach minimum standards.
In addition, I understand that a United Kingdom college of family mediators has been formed which has agreed common standards and will have the same power to remove from the registers services that do not reach those standards. The United Kingdom college is

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planning to work out consistent standards with the Law Society in respect of family solicitors offering mediation. The Law Society intends to regulate solicitor mediators. That indicates quality of standards in an area that the profession is taking seriously and is dealing with adequately without the need for government intervention. After all, those bodies are all in existence as voluntary organisations at present. It must also be remembered that standards in mediation in this country have been built up over the past 15 years, and neither mediation nor high standards are new.
In relation to legal aid I have tabled Amendment No. 99B, which provides that mediators must have in place,
"arrangements designed to ensure … that the possibility of reconciliation is kept under review throughout mediation; and … that the parties are encouraged to consider the welfare, wishes and feelings of the children".
It also provides that the Lord Chancellor may direct the Legal Aid Board to include in the contract such other provisions relating to the provision of mediation for the purposes of legal aid as he may require. The Legal Aid Board will require mediation services with which it contracts to meet the terms of a mediation franchise specification. That specification is to be developed during the pilot study. But one option is to require that mediators and their supervisors are accredited by a relevant professional body. The board will audit compliance with the specification and non-compliance in key areas will result in suspension or termination of the contract.
These arrangements would appear to me to meet the concerns indicated by the amendment in relation to accreditation. I should not consider the Legal Aid Board entitled to contract with any service that did not comply with those standards. I do not believe that anyone could object to the information meetings giving information to those attending about the possible risks of attending mediation with a service that has not been accredited and approved for state funding purposes. It would be perfectly possible, for example, at the information meeting to declare which are the state accredited systems. Anyone who went to anyone else would do so at his own expense and accept the consequences.
I envisage the standards set by the Legal Aid Board becoming a kite mark for quality across the profession. That would give the client the information necessary for him or her to make an appropriate judgment regarding which mediation services to use without the Government needing directly to approve the mediation services as well.
In those circumstances, I feel that it would be unwise to develop a system which goes beyond that. The approval will flow from the fact that the Legal Aid Board is entitled to contract for state funded services with the particular type of services envisaged. I regard that as giving a very reliable indication to clients as to whom they might use reasonably safely for that purpose.
In the light of that explanation, I hope that my noble friend will feel able to withdraw the amendment. The same principles also apply to the later amendment to which I referred.
8.30 p.m.
Baroness Faithfull: My Lords, perhaps I have a low IQ but I am not sure that I understood that explanation. Am I to understand that the Legal Aid Board would approve of and give approval to the mediation services?
The Lord Chancellor: My Lords, the point is that I would be able to specify with whom the Legal Aid Board could enter into contracts. Those contracts would specify the standards of service to be provided, including the professional standards to which I referred. That is the most effective way to secure such regulation as is necessary in that area. My noble friend would be the first to agree that over-regulation in mediation—the Lord Chancellor knows best—would not be a very wise policy for me to adopt (apart altogether from my inherent humility). I think that that method of accreditation, which is not more than saying that this is who the state would use, is right in principle and sufficient.
Baroness Faithfull: My Lords, I thank the noble and learned Lord for that reply. I understand that it would not be proper for the Lord Chancellor to undertake that. I only wanted a body to be accredited, not to include training or having anything to do with individuals. After all, the National Health Service is paid for by the Government. The Royal College of Nursing is a body on its own but it is acknowledged by the Department of Health. I thought that possibly it would be the same in this case.
The Lord Chancellor: My Lords, with the leave of the House, perhaps I may tell the noble Baroness that that is what I had in mind. The bodies which will receive public funding would have that stamp of approval. That would be a fairly secure indication to anyone looking for mediation services that those would be the services to which to go.
Baroness Faithfull: My Lords, I thank the noble and learned Lord for that explanation. I should like to consider the matter further and perhaps bring it back at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull moved Amendment No. 97:
Before Clause 21, insert the following new clause—
(".—(1) Where a marriage or relationship has broken down or is in danger of breaking down and a contact order (as defined in section 8 of the Children Act 1989) in respect of a child of the family has been granted by the court to one party to the marriage or relationship and has not been complied with, the Legal Aid Board may grant representation under Part IV of the Legal Aid Act 1988 to that party to assist him in seeking enforcement of the order.
(2) Where a party to whom subsection (1) applies is not eligible for legal aid, the court may appoint a court welfare officer to assist in seeking enforcement of the order.").
The noble Baroness said: My Lords, this amendment concerns the position of men or women—not only men—who do not conform to the access arrangements laid down by the court. I recognise that this is a very difficult area. The situation refers in the main to men.
In this country at the moment, as in the past, it is mostly women who are given the custody of children. But sad to say, some women find it very difficult to allow their children to visit their father. They make excuses, which, on the face of it, appear to be valid—excuses such as the child is ill, or the child has a sports day, etc. As time goes by, the children begin to lose contact with their father.
That is not the wish of the children. I regret that it is the wish of some mothers, though not all. If the father is given custody, which is not very often, a similar situation might arise. At the moment, if people do not comply with the contact arrangements there seems to be no way to enforce them. Therefore, the first part of the amendment seeks to ensure that if a man does not have access to his children he can obtain legal aid and go to court to ask for enforcement of the access arrangements. However, many men are just above the legal aid level but cannot afford to go to court. Therefore, the recommendation is that they could go to the court welfare officer.
I realise the weakness of my amendment. What does the court do? What are the sanctions? I have not made any reference to sanctions. I should prefer first to hear the debate. I beg to move.
Lord Elton: My Lords, I do not want to protract the proceedings this evening but I should like to utter a few words of welcome to the second part of the amendment, simply because it is a gesture toward that rather large section of the population which is too rich to receive legal aid and too poor to afford the law. It is nice to see something being done for them.
Lord Simon of Glaisdale: My Lords, perhaps I may add one or two comments. The noble Baroness said that it is the general practice of the courts to award custody of the children to the mother. My experience is now many years away and I should welcome hearing what my noble and learned friend has to say about that. But in my time, the practice was rather different. If there were very young children, almost always the custody was given to the mother. But by the time that a boy was seven or eight Years old, it was generally considered that he needed a father's influence and that was reflected in the custody or access order.
Secondly, the reference by the noble Baroness to access calls to mind a point that has been frequently canvassed in the course of the Bill; namely, whether it is the divorce which does the damage to the child or whether it is the preceding acrimony or even the separation. That question has been repeatedly canvassed. We may have lost sight of two matters which perhaps make the divorce the decisive element. There are remarkably few men in this country who can afford more than one wife. So one of the results of divorce is that one, or generally both families, go down to income support level. That poverty has its effect, as well as any emotional disturbance, on the child.
The noble Baroness referred to the difficulty of enforcing access and contact. That is a very real difficulty. That is the second stage which makes me feel that divorce can be decisive. My noble and learned
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friend referred to it in Committee as the indoctrination of a child. So often, after a divorce, quite naturally one finds a surrogate parent substituted for the natural one. That is again a source of great strain as it almost invariably involves, sometimes unconsciously, indoctrination of a child.
Now that we have come almost to the end of our deliberations, is it not quite plain that the only way we can save children from the trauma of divorce is by putting children first, not merely with our lips but in our legislative acts, and say that there shall be no divorce when there is a child of the family under 16 years of age?
Lord Clifford of Chudleigh: My Lords, I echo the words of the noble and learned Lord, Lord Simon of Glaisdale. I also support the noble Baroness. Contact is absolutely essential to the father; contact and custody to the mother is the norm. I am not going to repeat what the noble and learned Lord has just said but, very sadly, it is absolute fact. One of the most damaging things to a child is indoctrination. It is one of the hardest things to eradicate and one of the most difficult to get into a form of equanimity when it comes to both parents. I totally agree with what the noble Baroness has said.
Lord Meston: My Lords, the norm nowadays is governed by the Children Act which includes the presumption that there is no order, either for residence or contact, unless an order is specifically necessary. The question of enforcing contact involves the court in what can often be a delicate and difficult task requiring, from the point of view of the judge, a combination of tact and firmness which is not always easy to achieve.
Certainly, the noble Baroness, Lady Faithfull, is absolutely right in suggesting that fathers—and typically it is fathers who wish to enforce contact, either by achieving an order or by enforcing an existing one—should have proper representation. But I am by no means sure that legal aid is somehow excluded in cases in which an application has merit and the applicant has passed the appropriate means test. Therefore, I question the necessity for the first part of this amendment unless there is evidence that somehow legal aid is being withheld in appropriate cases.
8.45 p.m.
The Lord Chancellor: My Lords, civil legal aid is already available for proceedings in the county court and High Court, not only in relation to applying to the court for a contact order, but also for a further application should the order not be complied with. In the magistrates' court assistance by way of representation is available. In appropriate circumstances emergency legal aid is also available. So the first part of this amendment is already fully covered.
Under Section 7(1) of the Children Act the court may ask for a court welfare report regardless of whether or not legal aid has been granted to the parties. The court also has the power under Section 16 of the Children Act to make a family assistance order. That requires a court welfare officer or local authority officer to be made available,

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"to advise, assist and (where appropriate) befriend any person named in the order".
Those named in the order may include,
"any parent or guardian of the child; any person with whom the child is living or in whose favour a contact order is in force with respect to the child, [or] the child himself".
There are thus already arrangements in place to ensure the kind of aid and assistance which my noble friend would regard as desirable.
It would be wrong to try to impose a new and separate system on the one presently in existence. But I would like to say one thing about the background to this matter. As has been said by my noble and learned friend Lord Simon of Glaisdale—I believe it was taken up also by the noble Lord, Lord Clifford of Chudleigh—one of the great difficulties is indoctrination. In the experience I have, that usually takes place at the earlier stage when the parties are getting into conflict. One of my most fundamental objectives in making it unnecessary to make allegations against the other party to the marriage where that is not necessary is just precisely to limit that because there is nothing more harmful to the relationship between a parent and child than to have that parent denigrated by allegations which the child comes to know about.
Therefore, I believe that it is part of the background to all of this to try to relieve the situation of the kind of material which leads to indoctrination because once one has it, as the noble Lord, Lord Clifford of Chudleigh, said, it is mighty difficult to eradicate. Once it is there it is very difficult to remove.
It is very difficult for the court to know what to do in that situation. I am sure that my noble and learned friend has faced this as a judge, as I have, where the mother has all sorts of reasons why the father should not see the child. It is very difficult to get behind them. It is mighty difficult for the court to really have effective means of enforcing the measure without harming the child. I believe that the kind of arrangements which are in place are the best that are available. I say to my noble friend that one of the important things is to some extent to try to attack the root of the problem. I do not claim that all the problems will be solved. I believe that what is proposed, and the atmosphere sought after in this Bill, at least goes some way towards meeting the problem.
Baroness Faithfull: My Lords, I thank the noble and learned Lord for his reply. Perhaps I may make two points. First, I am most grateful to him for having laid down and made public from your Lordships' House that there is a system which can be adhered to for the time being. I have to say, unkindly, that there are some—perhaps court welfare officers—who have not helped the men when they have been in trouble. Secondly, while I agree that there is indoctrination, there is the other side of the coin. I have come across children who have run away from home because the mother will not let them see the father. That has caused great problems. Therefore, there is another side to the matter which has to be tackled. Perhaps that may be done on a social work basis rather than through the law. I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 21 [Legal aid for mediation in family matters]:
Lord Stallard Lord Stallard moved Amendment No. 97A:
Page 11, line 16, after ("to") insert ("reconciliation or").
The noble Lord said: My Lords, this amendment is designed to do two things. It provides funding for reconciliation on the same basis as it is provided for mediation. It provides that where a person's financial circumstances qualify him or her for legal aid, they will automatically qualify that person for legal aid for reconciliation also. I stress "a person's financial circumstances" because I am not referring to organisations. Funding for such organisations has already been well covered today. I have great admiration and respect for those Members of your Lordships' House who have declared themselves to be closely involved with such organisations, particularly in relation to mediation, and I am happy to declare my interest: I am not connected to any organisation at all. I am more concerned now with individuals than with organisations.
I believe that it was the noble Baroness, Lady Young, who touched on what is a real fear among many people. I refer to the growth of the mediation industry. There is a fear that mediation will take over and that we shall see a huge organisation, with state funds and God knows what else, such as colleges offering diplomas for mediators. It has already been said that people are queuing up to get on to mediation courses. However, that is not what the whole thing is about.
I thought that we had laid to rest the argument about mediation versus reconciliation—at least, I had hoped that we had done so. However, many noble Lords appear to use the phrases indiscriminately, making a mistake that the Law Society did not make in its briefing on the facts of mediation, which clearly states:
"The purpose of mediation is not reconciliation. Instead, it is intended to help divorcing couples reach decisions for themselves about future arrangements for the home, the children, finances etc. Mediation can help resolve disputes about these issues.
Mediators have a clearly defined role. The mediator's job is to help couples reach agreed solutions. They assist negotiations as a neutral third party. They do not:
Provide marriage guidance counselling.
Offer legal advice.
Comment on whether an agreed solution is fair to both parties and properly protects their interests.
Advise the parties independently".
For me, that is an essential definition of a "mediator".
However, I am arguing that before a mediator becomes involved in future arrangements for the unfortunate marriage, there have to be attempts to reconcile the couple. I believe that reconciliation is the stage before mediation. I have suggested that nothing should happen in terms of mediation until at least six months have expired for reconciliation. I still hold to that point of view. The amendment is designed to promote that possibility of reconciliation right up to the

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time of divorce and to provide for reconciliation to be funded from legal aid funds in just the same way as it is funded for those who qualify for mediation.
I believe that it was the Lord Chancellor who reminded us about the first amendment which was designed to save marriages. We should do all that we can to save marriages. I have taken the view right from the beginning of our deliberations on this Bill that, without reconciliation, we have hardly any chance of saving any marriages. If we are sincere about saving marriages, we must be sincere about reconciliation. Reconciliation must be the first step. I believe that some form of reconciliation might have helped to save the marriage breakdowns that we read about every day.
We have voiced our concern about the effect of divorce on children. There is enough evidence to prove that the children of divorced parents are significantly more likely to under-achieve at school, to be unemployed, to turn to crime and to repeat the whole cycle by becoming divorced themselves. There have been many studies into, and reports on, that. There is also robust evidence to show that experiencing divorce as a child can have adverse effects on one's health, behaviour and economic circumstances 30 years later. We have heard evidence to that effect in this debate.
We also know that divorced men and women have significantly worse health problems than those who are married. Evidence on that is contained in a book called Marital Breakdown and the Health of the Nation (second edition) 1995. Furthermore, 50 per cent. of divorced men regret being divorced. I understand that between 20,000 and 30,000 people every year petition for divorce but turn back from going through with it. We need to get as many couples as we can to try reconciliation.
The Lord Chancellor's own MORI poll was quoted by the noble Baroness, Lady Young, who reported that it showed that 60 per cent. of people support the present two-year separation period where both parties consent. Indeed, those who supported the period for reflection and consideration favoured a period of 20 months. There is a feeling outside—among the fellows on the Clapham omnibus—that there should be more time for consideration. Divorce should not be rushed into. It should not be something that is hurried, with only 12 months' notice being given and "bang bang" and that is the end of it—divorce with no holds barred.
I believe that it was the noble and learned Lord the Lord Chancellor who said that there is no proof that money could be saved as a result of this process. However, the state spends over £3 billion every year on the consequences of divorce and we know that reconciliation is possible because we know that every year there are between 20,000 and 30,000 fewer divorces than there are petitions. We know that a substantial proportion of couples turn back from divorce. That saves money. Every time a couple turn back from divorce and are reconciled we save money
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on social security and other benefits. Therefore, it is not absolutely factual to say that no money could be saved by adopting our proposals—
The Lord Chancellor: My Lords, I do not know to which of my numerous speeches the noble Lord is referring, but I have no recollection of saying what he has just recounted.
Lord Stallard: My Lords, if I am wrong, I hope that I shall be forgiven. I had thought that that was what the noble and learned Lord said earlier although I did not take down his words verbatim. I believe that the noble and learned Lord challenged us by saying that there is no proof that money could be saved. We shall have to look this up in Hansard tomorrow. If I am wrong, I certainly apologise, but I have a clear recollection of the noble and learned Lord referring in some way to the saving of money in relation to marriages.
The Lord Chancellor: My Lords, perhaps the noble Lord will allow me. What I said—we are all subject to Hansard and to the vagaries of my memory—was that I thought that if it could be shown that particular services prevented marital breakdown and saved the consequent costs, it would be much easier to get the necessary funding for those services. That is the theory of what I advanced.
Lord Stallard: My Lords, I accept the correction because I certainly recall the first part of the statement which the noble and learned Lord has just repeated. However, that makes no difference to what I am saying, which is that it has been shown that if marriages can be saved, money can be saved. That is the point to which I am replying. I think that we can readily agree on that.
Amendment No. 97A, and those grouped with it, would have the effect of doing what we set out to do at the beginning of the Bill, which is to save marriages, by taking the obvious first step of trying to get the couples to think again. We should give them at least six months to think about whether divorce is the right thing or whether they could be reconciled and become one of the thousands of couples who have already decided that they prefer to stay married. Divorcing couples should remember the many more who regret having gone through the divorce process and who would happily go back to their marriages. I believe that that is all that I need to say because most of these points have already been made. I beg to move.
9 p.m.
Baroness Young: My Lords, I support the noble Lord, Lord Stallard, in these amendments. If one thread has run through all the proceedings of this Bill it is the importance of reconciliation. I believe I am right in recalling that the noble and learned Lord, Lord Irvine, made this very point at the start of the Committee proceedings.
These amendments promote two things: the possibility of reconciliation right up to the time of divorce and for reconciliation to be funded out of legal aid. They provide for the funding of reconciliation on the same basis as for mediation. If a person's

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circumstances qualify them for legal aid for mediation they will automatically qualify for legal aid for reconciliation. They make it quite clear that reconciliation is voluntary, and both parties and the counsellor must consent before legal aid funding can be used. I believe that the purpose is quite clear.
I like these amendments because they are specific to the individuals involved. They deal with those matters to which individual people are entitled. Earlier in our proceedings today I supported the general funding of marriage organisations, but I consistently made the point that in my view funding should be only for marriage and not for all of the ancillary work that these organisations conducted. Although I welcome general funding, there can be no guarantee that the public money that is given will find its way to the people who really require it for reconciliation. We have recently passed the amendment moved by the noble and learned Lord the Lord Chancellor about supporting services, research into marriage breakdown and general funding for marriage organisations. But none of these gives a guarantee to individuals that they will be assisted in the process of reconciliation. At the end of the day, that is what it is about.
These amendments may not be properly drafted; they may be too general. I would entirely understand, as I am sure would the noble Lord, Lord Stallard, if they had to be taken back and looked at again. But I believe that everybody would be tremendously reassured to know that reconciliation, to which all of us attach importance, including the noble and learned Lord himself, was made much more specific to the couples who required it and some funding came out of the money which went generally to organisations and was specifically directed to the people whom all of us would like to help.
Lord Stoddart of Swindon: My Lords, I have been pleased to put my name to these amendments and I very much support them. I should like to emphasise the points that have been made by my noble friend. Reconciliation is not only about saving marriage, although that must be the prime concern. It can also be about saving the taxpayer's money. Therefore, it is worth taking these amendments and the whole question of reconciliation very seriously. One merely has to give an instance of what has to be done when a marriage breaks down. Whereas one family has been housed in a single house, as soon as a breakdown occurs another house is required. Very often that is supported by public funds. Additional costs will arise. The cost to the taxpayer of marriage breakdown can be very high. It is worth while spending time and money on reconciliation services.
I also agree with my noble friend that those involved in reconciliation do not necessarily need long college training. Reconciliation requires understanding, common sense, experience and, above all, a sense of humanity. I am sure that when my noble friend puts forward these amendments he is talking about proper reconciliation. That is why I support the amendments. Not only will we save money on social services and what have you. If we can save marriages from divorce
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we will save a lot on lawyers' fees. I understand that the cost of a five-hour counselling session is £47. Solicitors charge the Legal Aid Fund £160 per hour for their services in divorces. I would have thought that that alone underlined the need for these amendments. Therefore, I ask noble Lords for their support.
Lord Habgood: My Lords, it would be unfortunate if the impression got about that there were two rival organisations, one concerned with reconciliation and one with mediation. What we are concerned with are people we are trying to help in desperately difficult situations, with appropriate techniques for various stages of the process. It seems to me that mediation as it is referred to here comes after the stage when couples have decided that reconciliation is no longer possible and they have to go forward to a divorce. Even so, within the process of mediation the way to reconciliation is not closed. I hope that I shall help the House by reading a short passage from what National Family Mediation says about this subject:
"It is the current practice of family mediators to establish with the couple at the outset of mediation whether they each believe that the marriage has broken down. If there is any indication that they are not agreed, or that they are not certain, then the mediator will explore this and refer them if they are willing for marriage counselling.
Throughout the mediation process the possibility of reconciliation is kept under review by the mediator and if any uncertainty emerges about whether the marriage is over or not, he or she will explore this with the couple". There is no real conflict here; we do not need the amendments.
Baroness Elles: My Lords, perhaps I may intervene, because the more we discuss this, the more difficult I find it to understand. The noble Lords, Lord Stallard and Lord Stoddart of Swindon, made clear the role of the mediator, as opposed to that of the person who is, so to speak, responsible for reconciliation. I understood when we discussed this in Committee that the mediator has a role to play which is set up specifically in the Bill as originally presented by my noble and learned friend. It is to deal with financial matters, property and children—making arrangements for the application for divorce. Those arrangements have to be made before an applicant can go to the court to ask for a divorce.
What I do not understand, and I should be most grateful if my noble and learned friend would explain it, is what is the reconciliator's role? Is it the same person as the mediator or is it someone else? I had understood it to be someone else, and that the reconciliator, for instance, would have started, as I hoped if my amendment had been accepted, between the information meeting and the statement being made, so that there would be a chance to fit in the reconciliator at that early stage to avoid going to the next stage of the process. I should be most grateful if I could have a clarification of this matter, and specifically on the mediator's role. Who will pay the mediator? Who will be responsible for initiating the process of reconciliation and providing the help needed to save the marriage?
The Lord Chancellor: My Lords, perhaps I may start by trying to answer the question that has just been asked by my noble friend Lady Elles. The matters in dispute

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between parties who are going forward to divorce will normally include property and children, if they have children, and the arrangements connected with those matters. If the arrangements about property and children can be agreed, there is no need for court intervention. That is one of the principles of the Children Act so far as concerns the children. The court needs to be told about that matter for the divorce process, as your Lordships know, but there is no need for court intervention if that can be agreed. On the other hand, if it cannot be agreed, the court can settle the matter on a decision as between the parties.
The process of mediation is a process by which, instead of having adversarial litigation, there is a mediator, who is independent of the parties, as the noble Lord, Lord Habgood, and my noble friend Lady Faithfull said earlier, who helps them to come to an agreement, and who draws their attention to advice that may be available to them, the nature of the problem, and so on.
I read into the proceedings on the previous occasion a statement from the mediation bodies as to how they address matters of fault and conduct as between the parties, because in order to go forward we need to look at that. That is what mediation is. It is a process which, in default of success, will issue in a legal process. Therefore it is appropriate that legal aid in the ordinary form might be available or extended to cover mediation.
Reconciliation is different. First, reconciliation is a result; it is not a process. If people have been at variance—they cannot get on—and there is a discussion with someone who helps, it may be that they are reconciled. If that happens, the marriage is repaired and the costs that would follow on marriage breakdown are saved. Your Lordships will not find anything I have said inconsistent with that.
Marriage breakdown in this country is costly. I have said, and I say again, that, in so far as services that are provided are proved to be effective in preventing marital breakdown that otherwise would occur, thus saving the financial consequences of marital breakdown, there must be a strong Treasury motive, apart from anything else, in putting the money into the process that leads to reconciliation rather than towards the other costs which follow from marital breakdown. That is my position and always has been.
The next point is that reconciliation is of course, as I say, a result, and it is a result which we would greatly like to achieve, but in looking at this one has to look at the process. What is the mechanism by which it may be assisted? If anything is clear to me as a result of a study of this problem, it is that, where a marriage enters on problems, the sooner it receives help the more likely it is that help will be effective. The more the marriage has got into trouble, the more it is on the rocks, the more difficult it is to get it refloated. Therefore, the earlier something is done the better. That is why I believe it is wrong to attach the provision to a legal process and to think of reconciliation, conciliation or advice services as associated primarily with the ultimate stage of a divorce process. In my submission, the correct way to fund the service is the way I am proposing in the Bill; namely, by grants to those who provide the service.
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Of course, there may be a question of how often one can receive such help. In the ordinary course, before one can obtain legal aid one must undertake a test to show that one has some kind of case. Such a test would be difficult to apply to this provision. I understand that we need a recognised marriage counselling service to which people can go when it might be helpful to them. That is the structure that I propose in the Bill; namely, grant aid as regards those services. I have indicated that the level of grant aid is likely to be very much affected by the ability to establish that the aid given by this means is effective in preventing marital breakdown. I submit that the right method to be used in funding help for couples seeking reconciliation is that which I have proposed; namely, by grants to those who can provide an effective service.
The right reverend Prelate the Bishop of Oxford mentioned some figures which Relate has given to test its abilities in this connection. That would be a proper footing on which to give grants. That is the best and most effective way of getting money to people in the form of service which may be of utility to them. My noble friend Lady Young asked whether it would be certain that the money would go to those services. That is precisely why I have defined the services very closely in the grant aid provisions in Clause 18.
I believe that this is the best way of securing the kind of service which the noble Lords, Lord Stallard and Lord Stoddart of Swindon, wish. I hope that your Lordships will support this method of funding, which is not related solely to the end of the process but is likely to provide funding for services at a time when they are more likely to be effective in the structure of the Bill. I hope that in the light of that explanation the noble Lord will withdraw his amendment.
9.15 p.m.
Lord Stallard: My Lords, I am grateful to noble Lords who have contributed to this short debate and for the noble and learned Lord's positive response. I am still a little doubtful about the matter and I wish to study the noble and learned Lord's reply. The noble Lord, Lord Habgood, appears to have misunderstood a point. I said that if the waiting period were extended to 18 months the legal aid funding for reconciliation would be available during the whole period. Noble Lords should think about that suggestion before condemning it totally out of hand.
I am disappointed that on the face of the Bill there is not the same recognition of reconciliation as there is of mediation. I would have thought that we could have been a little more positive about reconciliation for people who qualify for legal aid. I am not so much concerned with the organisations and the grants as I am about the ordinary people involved. If they qualify for legal aid for mediation they should qualify for legal aid for reconciliation. That is the difficulty, and I wish to take time to read the noble and learned Lord's reply. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 97B:
Page 11, line 26, leave out ("this Act") and insert ("the Family Law Act 1996").
The noble and learned Lord said: My Lords, this amendment, to which I referred earlier, corrects a drafting error. I ought to have referred in that part of the Bill to the Family Law Act. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 97C to 98AA not moved.]
Clause 22 [Provision and availability of mediation]:
[Amendments Nos. 98B to 98E not moved.]
Earl Russell Earl Russell moved Amendment No. 99:
Page 12, leave out lines 15 and 16 and insert ("and the parties suitable to the dispute having regard to all the circumstances of the case.").
The noble Earl said: My Lords, to avoid repetition and for the convenience of the House I speak also to Amendment No. 107.
Amendment No. 99 is simply a matter of clarification; to make clear that mediation should only be used where mediator and both parties think it is appropriate.
The noble and learned Lord gave us some assurance about this in Committee—that mediation should not be used where it appears to the parties to be inappropriate—but, of course, we do not know which party. It is possible that one party may think mediation is appropriate, another party may think it is not appropriate. We need some mechanism to resolve such cases.
More generally, we have in the clause a presumption in favour of mediation from which there will be exceptions, contained in regulations which we have not yet seen. The noble and learned Lord conceded that if the parties at the outset do not want mediation then there will not be a presumption in favour of it. But the question which still concerns me is whether there may be other cases, not foreseen at the time of the drafting of the regulations, when mediation may nevertheless not be appropriate and it would be suitable to allow parties who have refused or withdrawn from mediation to have access to legal aid. If the answer is no, then we have the risk of a rather bureaucratic system and perhaps the risk of imposing a code of values.
Assume, for example—and I hope your Lordships will not say this is impossible—a divorce involving two Jehovah's Witnesses. I know they are not supposed to divorce, but not everybody in the world confines themselves to doing what they are supposed to do. Their code of values may not be exactly identical to those employed by the mediators. They may find themselves in a situation where they could perfectly well have reached an agreement by themselves, perhaps with the aid of a couple of solicitors, but having a series of values held by the mediators imposed upon them which they find that they cannot accept. To say that a party in such a situation cannot have access to legal aid is likely to produce a certain amount of injustice.
There is a risk here—which does not apply to my hypothetical Jehovah's Witnesses but might apply to others—of people going round the fences instead of over
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them. A couple of days ago a newspaper reported a most remarkable story of a horse race in which objections were lodged, as a result of which the horse which finished tenth was declared the winner because all the others had been round a fence instead of over it. If we make divorce too difficult there is a risk that people will simply go round the fences; they will separate and form irregular unions with other parties because the bureaucratic procedure of divorce is too uncongenial to them. So, unless we allow some safety valve for ordinary human feelings, we may be in worse trouble than when we started. I beg to move.
Lord Irvine of Lairg: My Lords, I speak to Amendment No. 106 and will make a few observations on Amendment No. 106A in the name of the noble and learned Lord, although he has not yet addressed that amendment.
Clause 24 adds this provision to the Legal Aid Act:
"For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except—

(a) in relation to prescribed descriptions of proceedings; or

(b) in prescribed circumstances".

I emphasise the words "is to be considered" as more appropriate than "taking proceedings".
The effect of the provision is to place upon the Legal Aid Board in the generality of divorce cases a duty to refuse legal aid representation in favour of mediation. The clause means that the Legal Aid Board must, not may, refuse legal aid representation in family proceedings on the ground that mediation is to be considered as more appropriate than taking proceedings.
In practice, Clause 24 bites on cases where parties under the existing rules would be eligible for legal aid for representation in proceedings relating to family matters—for example, disputes about periodical payments, division of family assets or, perhaps even more important, children. But the Legal Aid Board is required to say, "We know that you do not agree to mediation. We know that mediation is supposed to be voluntary and the Government have always said that. But nevertheless, under the statute, we are required to regard mediation as more appropriate, whatever you may think, so there will be no legal aid for court representation but we will represent you in mediation". That is the reality.
If that is the position which the Legal Aid Board must adopt at the same time as it continues to assert that mediation is voluntary, I have no doubt that most people would think that that assertion of voluntariness is a hollow sham.
The purpose of Amendment No. 106 is to qualify the direction to the Legal Aid Board which is contained in Clause 24 by a provision that mediation is not to be considered as more appropriate than taking proceedings where either party to the proceedings does not agree, under Clause 12, to take part in any mediation. Unless that amendment is agreed to, mediation will not be truly voluntary because the Legal Aid Board will have to say

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to applicants asking for legal representation in proceedings relating to family matters, "Sorry, but we have to regard mediation as more appropriate".
At the time that I heard it, I regarded as helpful the response from the noble and learned Lord to this amendment when I moved it in Committee on Thursday, 25th January. The noble and learned Lord's replies are to be found at cols. 1213 to 1216 of Hansard. I observed on two occasions, without any contradiction from the noble and learned Lord, that I understood him to have given,
"an assurance that he will state, as one of the prescribed circumstances constituting an exception in the regulations, where a party does not wish from the outset to participate in mediation".— [Official Report, 25/1/96; col. 1216.]
However, having read carefully the debate on that amendment in Committee, I am now less clear than I was at the time that the noble and learned Lord was giving as explicit an assurance as I thought that he was giving. Therefore, it will assist me in deciding the position that we should adopt, even at this late hour this evening and certainly on Third Reading, if the noble and learned Lord will be kind enough to confirm precisely the assurance that he was giving in relation to the content of the regulations on this subject.
However, as a matter of principle, I believe that it is not right to leave such a central point in relation to voluntariness of mediation to regulations which are to come in the great hereafter. The critical point, affecting as it does access to legal aid for court representation where mediation said to be voluntary has been declined, must be on the face of the Bill.
For the convenience of the House, in the interests of brevity and because the noble and learned Lord has not yet moved his Amendment No. 106A, I desire to make a few observations. I do not regard that amendment as beginning to meet the point which either the noble Earl, Lord Russell, or myself have made and are seeking to make. First, on a point of detail, I rather think—although the noble and learned Lord will correct me if I am wrong—that his amendment is inaccurately expressed on the Marshalled List. I believe that the amendment should read:
"Page 14, line 12",
and not "line 13". It should then continue to say,
"leave out from ('except') to end of line 14".
The provision would then read:
"For the purposes of determining whether to grant representation for the purpose of any proceedings, recourse to mediation is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than taking proceedings except—"
and then we would include the words of the amendment—
"where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable; or
"in such other circumstances as may be prescribed".
A mediator may well think that mediation is suitable and would therefore obviously decline to certify that mediation does not appear to him to be suitable. It seems to me that that does not begin to meet the point made by the noble Earl, Lord Russell, and myself; namely,
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that a party may not want to participate in mediation in reliance on the off-repeated assurance that mediation is voluntary.
In that circumstance, the purpose of my amendment (Amendment No. 106) is that the Legal Aid Board should not be required to regard mediation as more appropriate and, therefore, refuse to provide legal aid for representation where a party chooses not to participate in mediation which that party has been assured is voluntary.
It is no comfort to be told, as Amendment No. 106 implies, that the mediator thinks that mediation is suitable—I suppose I could say cynically, "Well, he would, wouldn't he?"—if a party does not agree and if the Legal Aid Board says "No" to representation on the basis that, under Clause 24, mediation is to be regarded as more appropriate than taking proceedings. That is why, in my submission, Amendment No. 106 is the provision that is required. It makes clear that mediation will not be regarded as more appropriate by the hoard when a party declines to take part in mediation.
I hope that I have made my position on the matter plain. I hope also that, if the noble and learned Lord has an assurance to give in relation to the anticipated content of regulations on the subject, he will say precisely what he has in mind. For my own part, I have to say that I take the view that this is something which is so important and so central to the assurance that mediation is a voluntary process that it should be dealt with on the face of the Bill.
9.30 p.m.
The Lord Chancellor: My Lords, I shall deal first with the situation regarding Amendment No. 99 moved by the noble Earl, Lord Russell. Under the current provisions of the Bill, a person shall not be granted mediation unless it appears to the mediator that mediation is,
"suitable to the dispute … the parties and all the circumstances".
The amendment would provide that mediation should not be granted unless it appears suitable to both the mediator and the parties. The decision would therefore become one to be taken jointly by the mediator and the parties according to the suitability of the case. There would no longer be a requirement to take into account the suitability of the parties themselves for mediation.
The Government believe that it is mediators themselves who will be in the best position to assess suitability of persons and cases for mediation. Of course it is very important that this is done very much in consultation with the relevant party or parties and taking into account their attitude, willingness and other circumstances. Parties may not fully understand the mediation process and will thus be unable to give a fully informed view of suitability in all the circumstances of their case.
As the clause currently stands, mediators will be required to take into account the suitability of the parties for mediation as well as the appropriateness of the case itself. The Legal Aid Board will be concerned to ensure that proper quality assurance criteria are in place to ensure that mediators fulfill this role responsibly. This

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clause will, however, prevent mediators from granting mediation, and so state funding, where a case or person is not suitable for such assistance. If certification as to suitability for mediation is by both mediator and parties, this may give rise to disputes between parties as to their suitability and, without some sort of objective assessment by a third party, may also lead a strong party to coerce a weak one into concurring against the weaker party's best interest with a decision either to mediate or to refuse to mediate. In other words, should that sort of situation arise, the protection of the weaker party is in the mediator. I should add that, as this clause links in closely with Clause 24, it is a mediator who will have to certify suitability and so the responsibility must be entirely that of the mediator, as the grant of state funding for representation may be dependent in part on such certification.
That is not to say that the client will have no part to play in that decision-making process. When assessing the suitability of parties for mediation, the mediator cannot ignore the views of the client. However, consulting with and listening to the client are not the same thing as the client self-certifying suitability. In my submission, Amendment No. 99 is not an appropriate amendment for that reason.
I turn now to Amendment No. 106 of the noble Lord, Lord Irvine of Lairg, to which he has spoken, and my own amendment, No. 106A. These amendments are both concerned with Clause 24. Amendment No. 106, tabled by the noble Lord, Lord Irvine of Lairg, and the noble and learned Lord, Lord Archer of Sandwell, would have the effect of disapplying the presumption in favour of mediation if either party does not agree to take part in mediation. My Amendment No. 106A has at its heart the same wish as this amendment—to make sure that mediation will not be compulsory for those on legal aid. However, my amendment differs from this one in that it requires that parties applying for legal aid who are not involved in a dispute which comes under one of the proceedings to be prescribed in Clause 24 shall have to attend an assessment interview with a mediator in order better to understand mediation and its benefits.
I should say that my Amendment No. 106A is in the Marshalled List in the place where I intended it to be because I wished to keep in place the power to prescribe some types of proceedings in respect of which mediation might not be suitable at all. During the debate in Committee, some concern was expressed that the presumption would lead to people being forced into compulsory mediation. I hope that my amendment, which is designed to make clear the connection between the rebuttal of presumption in favour of mediation in Clause 24 and a mediator's assessment of suitability for mediation under Section 13B(3) of the Legal Aid Act 1988 introduced by Clause 22, will assure those who have expressed this concern that that will not be the case.
Let me try to explain how I see this operating in practice, because I think it is extremely important that in this area any refusal is an informed refusal. I do not want people just to say, "I do not like the sound of mediation". We want them to understand precisely what
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is involved because I think there is a public interest, apart altogether from questions about money and so on, in trying, if we can manage it, to get the process that generates least heat in this area. It may help to set out how I intend that the presumption should operate.
In short, it is assumed that a party requiring legal representation might first approach a solicitor. The solicitor would establish whether the case fell into one of the prescribed categories of proceedings which automatically rebutted the presumption. As I indicated earlier, such cases might be public law Children Act cases or applications for protection measures against domestic violence. Those are two examples which occurred to me as falling into the regulations under head (a). If the case fell into a prescribed category the solicitor could then make an application to the Legal Aid Board for a certificate for representation. If the case did not fall into a prescribed category the presumption could only be rebutted in prescribed circumstances.
The amendment makes clear that one of those circumstances will be that a mediator has certified that the parties were unsuitable and/or the case was inappropriate. The solicitor would therefore need to refer the client to a mediator for an assessment of suitability for mediation. An important criterion of any such assessment will be the attitude of the parties. Any unwillingness to mediate which is persisted in despite assurances and explanations given by a mediator indicates that mediation will not succeed, and so a party or parties who are unwilling are likely to be deemed unsuitable for mediation. There would, in any event, be little point in forcing such persons into mediation.
On the other hand, it seems from experience that in practice it is not uncommon for parties to say no to mediation if asked in very general terms, particularly by a solicitor and particularly one in whom the client has confidence. However, once parties have met with a mediator and had the opportunity to discuss what is involved and its benefits, they often change their minds and become willing at least to try one or two sessions, assuming their partner is also willing. If, despite such a meeting, parties remain unconvinced, they will have been made fully aware of mediation and at least will be making an informed decision not to attempt mediation. It is important that parties are put in a position of fully understanding mediation and how it might help them. Therefore, the object of a suitability assessment is to enable clients, in consultation with a mediator, to make an informed decision about what is the right course of action for them and not to force them into mediation.
That is why I have put my amendment in this way. There is also the point that I believe that the amendment of the noble Lord, Lord Irvine of Lairg, would affect matters only at the outset. It is at least possible that in the course of mediation a disagreement might arise which would lead to circumstances in which it might be appropriate for representation to be substituted. I hope that that would not happen often, but it could happen.
That is my approach to these matters. It is my submission that the relationship between Clause 22 and the mediator's approach to it and Clause 24 is of such a character that an informed decision not to mediate

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would mean that the presumption would not apply. I have kept the flexibility of powers to designate circumstances in which the Clause 24 presumption would not apply. That is an answer to the point made by the noble Earl, Lord Russell, that it is impossible to say now that we know everything. Circumstances could arise that we are not aware of at this stage, and the regulation-making power is the best way of handling that kind of problem.
I hope that in the light of that explanation the noble Earl will feel able to withdraw his amendment.
Baroness Elles: My Lords, before my noble and learned friend sits down perhaps I may ask him a question with regard to mediation in relation to Amendment No. 106A, which states:
"Where a mediator has certified for the purposes of section I 3B(3)…that mediation does not appear to be suitable".
What right would a party have or what procedure is available to appeal against the mediator's decision? It could be that one of the parties wanted mediation and would regret that such a decision should be taken by a mediator.
My noble and learned friend will be aware that anybody who has had to deal with divorce cases knows of many instances where the woman, particularly after going through the process for six months, becomes quite neurotic and is almost impossible to deal with, either through mediation or a legal representative. As the noble Lord, Lord Stallard, rightly points out, we are dealing with people rather than with law. One could have a mediator saying, "I cannot deal with this person" for whatever reasons—neurotic or psychological. What right would that party have to appeal against such a decision by a mediator? I shall be grateful if my noble and learned friend will advise me.
9.45 p.m.
The Lord Chancellor: My Lords, it is difficult to deal with every possible situation. This is a matter of co-operation. The mediator in question would be intended as the person who would undertake the mediation. Obviously the relationship has to be one in which the three parties can work together. If the mediator says, "I am sorry, I cannot do anything for you"—I assume that he would not mention the factors that my noble friend referred to—the party might then say, "In that case I shall just go for representation". But if not, it would always be possible to try a different mediator. In order to have mediation, one must have a mediator who is willing to undertake it. That is where ultimately the court is the last resort because the court cannot refuse to undertake decision making even where parties are not particularly reasonable.
The answer is that one would have to try another mediator to see whether he or she would be willing to step in where his colleague had feared to tread.
Lord Habgood: My Lords, before the noble and learned Lord sits down, I wonder whether it might be helpful if I were to quote from the mediators' code of
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practice. Much of the discussion that we have had has been theoretical. This is what mediators are advised to do:
"Participation in mediation is always voluntary and any participant or mediator is free to withdraw at any time. If a mediator believes that any participant is unable or unwilling to participate fully and freely in the process, the mediator may suspend or terminate the mediation and may suggest that the participants obtain such other professional services as may be appropriate.
"Mediation aims to assist participants to work out the arrangements which they consider appropriate to their own particular circumstances. In mediation decision-making always rests with the participants".
The Lord Chancellor: My Lords, in so far as that is addressed to me as a question at this stage, I accept it entirely as being a correct account of how mediators will proceed.
I think that it is rather theoretical to suggest that mediation can proceed without the parties agreeing to continue with it.
Lord Irvine of Lairg: My Lords, before the noble and learned Lord sits down, will he clarify this point on Amendment No. 106A? I refer specifically to the words,
"where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable".
Does the noble and learned Lord advise us that if one party on consideration intimated the decision that he or she did not wish either to participate or to continue to participate in mediation then the mediator would be under a duty to certify that mediation did not appear to be suitable?
The Lord Chancellor: My Lords, yes, that is my understanding. I believe that hat is a more flexible provision than one which determined the issue only at the beginning. This would open the way for a mediator, having had perhaps two meetings and having got on to a subject which the party was not prepared to discuss, or something of that kind, to state that the certification was possible.
I take the view that that is what the amendment means and that it has the effect of producing an informed decision rather than a decision which might be taken in the absence of proper information about what is involved.
Earl Russell: My Lords, I hope that the noble and learned Lord has been able finally to sit down. Nevertheless, I believe that those were three extremely helpful interventions which have got us quite a long way forward.
I was most grateful to the noble and reverend Lord, Lord Habgood—and I hope I am right and that is his correct style—for his stress on the mediator's code that mediation must be voluntary. What has worried the noble Lord, Lord Irvine of Lairg, and myself is that in some cases mediation may be more voluntary than in others. For someone of considerable means being without legal aid, which they probably would not get anyway, is not particularly distressing. But if someone who can only employ a solicitor with the help of legal

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aid does not get it then the degree of voluntariness in going to mediation may be much smaller than in some other cases. That is the situation that concerns us.
It is just possible, before the next stage of the Bill, that if we could put together what the noble and reverend Lord, Lord Habgood, said, what the noble and learned Lord said about the position of the mediator being in effect required to certify mediation as not suitable if the parties do not want it and the concerns of the noble Lord, Lord Irvine of Lairg, we might be in a position to get a new form of words that would satisfy all parties. If not, then Amendment No. 106 would be the proper answer to the situation.
I am still worried about it. As the noble Lord, Lord Irvine, predicted, I am not in the least happy with Amendment No. 106A. The House knows that I am somewhat allergic to the phrase:
"in such … circumstances as may be prescribed".
I take the noble and learned Lord's point that it allows for dealing with future circumstances. But the point is that the procedure only allows us to deal with categories. Here we are dealing with individuals. In cases where mediation is unsuitable, it may be unsuitable for reasons which have nothing to do with any category whatever. The intervention of the noble Baroness, Lady Elles, was much to that point. So I cannot be entirely happy about that idea. I do not believe that that amendment is the way forward.
The noble and learned Lord was confident that the mediators themselves are ultimately always the best judges of whether mediation is suitable. There is a distinct Platonist streak in the thought of the noble and learned Lord. We have here guardians taking decisions for the rest of us through the benefit of their wisdom. They do not always feel comfortable. I am reminded of the occasion—apocryphal no doubt—when the infant future Kaiser was being smacked by his nurse. The nurse said: "Believe me, this hurts me as much as it hurts you". "Oh", said the Kaiser, "and in the same place?" Assumptions taken by wise and benevolent superiors may be taken with the greatest care and benevolence in the world, but they may still not fit the person. In the end, especially in family law, it is the person for whom we are legislating. If the procedure is not acceptable to the person, they will go round the fences and circumnavigate the whole procedure.
Amendment No. 99 is not the answer to the problem. I beg leave to withdraw it without prejudice to what the noble Lord, Lord Irvine, may see fit to do with Amendment No. 106.
Amendment, by leave, withdrawn.
[Amendment No. 99A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 99B:
Page 12, line 21, leave out from ("Chancellor") to end of line 22 and insert—
("(6) Where the Board enters into a contract for the provision of mediation under this Part, the provision made by the contract as to the conduct of the mediation must include—

(a) provision requiring the mediator to have arrangements designed to ensure—

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(i) that the possibility of reconciliation is kept under review throughout mediation; and

(ii) that the parties are encouraged to consider the welfare, wishes and feelings of the children; and

(b) such other provision as the Lord Chancellor may direct the Board to include.

(7) Directions under this section may apply generally to contracts, or to contracts of any description, entered into by the Board, but shall not be made with respect to any particular contract.").
The noble and learned Lord said: My Lords, during the debate at the Committee stage of the Bill, I indicated that I felt that there might be some merit in having a code of practice dealing with mediation in order to ensure that public funds are directed towards those mediators who are providing a good quality service in the areas which we feel are most important. I have been considering such an amendment since the Committee stage. After discussion with the mediation profession and the Legal Aid Board, I have come to the conclusion that what is required is the amendment which I have put forward.
It is difficult for the Government statutorily to promulgate and support a code of practice without falling into the trap of regulating the profession itself, and that too rigorously. That is particularly so in relation to mediation, which needs freedom to develop and innovate in order to provide the best quality service as quickly as possible as the years go on. That said, it is clearly important that public funds are not spent on providers who do not provide a good quality service.
The Government are concerned to ensure that mediators are in a position to provide assistance in accordance with the aims of this Bill, in particular to keep the possibility of reconciliation under review, and to remind parents to consider at all times the welfare, wishes and feelings of their children. It is my view that in order to ensure that where public money is at issue in the provision of mediation, those ideals should be assured. I therefore tabled this amendment to provide that the Legal Aid Board may not contract for mediation unless it has in place arrangements to ensure that reconciliation and the welfare of children are given appropriate consideration during mediation.
These matters are currently dealt with in the code of practice issued by National Family Mediation. Other important matters are also covered. I am very grateful to the noble Lord, Lord Habgood, who gave a very clear statement about the details of that code when the House last deliberated on the Bill. The Legal Aid Board will of course not be restricted by this amendment as to what other provisions it can, and cannot, include in its contract. I should expect the contracts issued by the board to include provision relating to many other arrangements envisaged by the code of practice, together with more general provisions concerned with provision and delivery of mediation services, such as price, quality assurance, criteria and output.
I remind the House that the Lord Chancellor has power to direct the board as to particular provisions which the Lord Chancellor requires to be included in contracts. That allows the Lord Chancellor flexibility to make further directions as to the content of contracts if

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that becomes appropriate. But the significance of these amendments is that he would have to require that those were dealt with in any contract into which the board might enter. I beg to move.
On Question, amendment agreed to.
Clause 23 [Payment for mediation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 100:
Page 12, line 30, leave out ("mediator") and insert ("Board").
The noble and learned Lord said: My Lords, this relates to an amendment tabled by the noble and learned Lord, Lord Archer of Sandwell, which would provide that contributions in respect of mediation would be referred to the Legal Aid Board rather than to the mediator. I considered this matter and concluded, having discussed it with those involved, that we should give effect to the wish of the noble and learned Lord. Therefore, Amendments Nos. 100 to 102 and 105 are directed to that end. I beg to move.
Lord Elton: My Lords, since there is nobody there to say it, I rise to thank the noble and learned Lord for having incorporated this provision in the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 101 and 102:
Page 12, line 31, leave out ("mediation, charges or fees") and insert ("costs of providing the mediation, a contribution").
Page 12, line 32, at end insert—
("(3A) If the total contribution made by a person in respect of any mediation exceeds the Board's liability on his account, the excess shall be repaid to him.").
The noble and learned Lord said: My Lords, I have spoken to these amendments. With the leave of the House, I beg to move them en bloc.
On Question, amendments agreed to.
Earl Russell Earl Russell moved Amendment No. 103:
Page 12, line 33, leave out ("may") and insert ("shall").
The noble Earl said: My Lords, with this amendment I also speak to Amendment No. 104. These concern the statutory charge. That is like a charge on a house in the case of a mortgage. It is a machinery to ensure that there is something for paying legal aid. The object of these amendments is to introduce the same procedure as is used in standard matrimonial cases at present.
If the statutory charge is not imposed, there is some anxiety that it may lead to pressure to use mediation, which may put unjustifiable pressure on those who are subject to it. There is a difficulty if legal aid cannot see any way of recovering its costs. In effect, it provides the procedure that we have at present. If there is any reason why we should not apply this provision, I shall listen with a great deal of care. In the meantime, I beg to move.
10 p.m.
The Lord Chancellor: My Lords, as the provision is currently drafted, it gives discretion as to whether or not such regulation shall be made. I believe that it is better that there should be a discretionary power relating to the
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application of the statutory charge for mediation. As the noble Earl and other noble Lords know, there is a good deal of mechanism required in the imposition of the statutory charge. One wants to be sure that it would all be appropriate in respect of the sums involved. Application of the statutory charge is extremely complicated. The Government and the Legal Aid Board will wish to monitor how mediation works in practice before deciding how best to implement the statutory charge in respect of mediation costs.
I speak against Amendment No. 104 at present but not against the intention behind it. I have always intended that when the statutory charge is applied through regulations to mediation in family matters there should be some replication of the statutory disregard which applies in matrimonial matters for advice, assistance and representation. I do not think it appropriate to place that on the face of the Bill as does the noble Earl's amendment. The figure of £2,500 has been in place for some time. At some point it may become appropriate to change it and I do not for one moment imagine that the noble Earl would wish to prevent that, particularly if it were changed upwards. Additionally, I have already indicated the problems which I foresee in introducing the statutory charge in respect of mediation costs. I should like to see the results of the pilot study into mediation before deciding exactly how the statutory charge should apply in that context and before any decision is taken as to the level of disregard.
I have been advised that, through an oversight, the current draft of the Bill does not give the Lord Chancellor the necessary regulation-making power to apply the disregard to the statutory charge in respect of mediation. I therefore intend to bring forward an amendment at Third Reading to rectify that situation. I am obliged to the noble Earl. It was by directing our attention closely to that matter that he brought the point to my notice.
Some flexibility is required. Your Lordships may feel fairly satisfied that if it is feasible there will be some pressure to do it in the machinery of government. To impose an obligation to have that charge in respect of mediation would, I think, be unwise at this stage. One must have regard to many circumstances in deciding whether or not it should be done, and, if so, exactly how it should be done in relation to mediation.
In the light of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Russell: My Lords, I am most grateful to the noble and learned Lord for the care and thought that he has devoted to this issue. The occasion almost matches the time during the passage of the Child Support Act when the noble and learned Lord accepted, late at night, an amendment that I had not even moved.
I understand entirely his concern about piloting and why he is concerned about discretion to allow things to develop. I had hoped for a few more indications of how that discretion was likely to be used. I believe that we may now legitimately expect that at Third Reading.

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I take the noble and learned Lord's point about uprating. It is a point well taken. But one of the very few cases in which I accept the legitimacy and propriety of the Henry VIII clause is for uprating. In fact, it was what King Henry VIII himself introduced it for. So, in my amendment that is a drafting defect which needs correcting. I have no doubt that the noble and learned Lord will do it. I shall be very interested to see what comes forward at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 105:
Page 13, line 10, leave out ("subsection") and insert ("subsections (3A) and").
The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 100. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 105A to 105D not moved.]
Clause 24 [Mediation and civil legal aid]:
[Amendment No. 105E not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg had given notice of his intention to move Amendment No. 106:
Page 14, line 12, after ("matters,") insert ("except where either party to the proceedings does not agree to take part in mediation,").
The noble Lord said: My Lords, I shall not move this amendment, on the basis that this is a subject which we shall revisit on Third Reading.
[Amendment No. 106 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 106A:
Page 14, line 13, leave out from ("proceedings;") to end of line 14 and insert—
("( ) where a mediator has certified for the purposes of section 13B(3) above that mediation does not appear to be suitable; or
( ) in such other circumstances as may be prescribed." ").
The noble and learned Lord said: My Lords, I spoke to this amendment in the debate on Amendment No. 99. I beg to move.
On Question, amendment agreed to.
[Amendment No. 107 not moved.]
Clause 28 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:
Baroness Young Baroness Young moved Amendment No. 108:
Page 18, line 23, after ("parties;") insert—
("( ) the conduct of the parties;").
The noble Baroness said: My Lords, we have now moved into Part III of the Bill. This particular amendment concerns occupation orders, which, I believe, were formerly called ouster orders. In the debate that we had last Thursday my noble and learned friend the Lord Chancellor acknowledged that conduct is relevant. He said,
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I recognise … that there are situations in which the conduct of married people has relevance. This is particularly so in relation to the consequences of breakdown. The two principle areas where these matters are relevant are in relation to the distribution of property and the arrangements for children".—[Official Report, 29/2/96; co1.1663.]
This amendment is related to conduct because Clauses 28, 30 and 31 omit any reference to conduct in the list of matters which the court should take into account. In this respect, they amount to a reform of the Matrimonial Homes Act 1983, where conduct was a factor and where some degree of blameworthy behaviour had to be shown before a man or a woman could be excluded from his or her own home.
In connection with this clause we must bear in mind that Clause 40 empowers the court to make an occupation order ex parte wherever it is "just and convenient" to do so. Thus, under the Bill, a man may be turned out of his house with no advance warning, with no opportunity to defend himself and for no cause associated with his own behaviour. That is not only turning the clock back to where it stood before the landmark decision of your Lordships' House in Richards v. Richards 1984. It is going further even than the courts were prepared to go in those days by offering ouster orders on an ex parte basis.
Amendment No. 108 in fact re-establishes contact in the list of matters to be taken into account under Clause 28(6). In fact, it does no more than restate existing law to curb arbitrary and capricious behaviour by some custodial spouses who are prepared, for example, to use the children in a war over occupation. It is the, "I don't want him under my roof any more" syndrome.
Amendment No. 109 addresses an important issue which is related to the one that I have just stated. Under Clause 28(7), the court "shall", not "may", make the order excluding Party B where it appears that Party A, or any relevant child, "is likely to suffer significant harm" if the order is not made, subject only to the balancing considerations in Clause 28(7)(a) and (b).
What is "significant harm"? The term is not defined save that Clause 57 defines "harm" as,
"ill-treatment or the impairment of health",
or, in the case of a child, "health or development".
No one wishes to see a prolongation of physical ill-treatment or mental cruelty. But it is all too easy to obtain a doctor's certificate saying, "This patient of mine is in a depressed condition and will improve only if his or her partner leaves the matrimonial home". Understandably, doctors pay no attention to the interests of the other occupants of the household because really they are attending to their particular patient.
I believe that subsection (7) is in fact unnecessary. All matters relevant to the court's decision are comprised in subsection (6), which, with minor exceptions, and subject to the addition of paragraph (d) on conduct, mirror the existing law.
There is no pressure for change from members of the public on this matter, but I believe that there is a real risk of running ahead of public opinion if Clause 28 as it stands becomes law. To exclude someone from his or

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her home for other than strong reasons is a gross violation of civil liberties. The two amendments raise a very important issue and I hope that my noble and learned friend will consider them carefully. I am not proposing anything other than that the law should be as it stands at present, but the law seems to be being altered by the Bill. Indeed, the Bill is weakening it, because it does not include the conduct of the parties. I beg to move.
Lord Simon of Glaisdale: My Lords, I venture to second this amendment although I shall not repeat the reasons that have been given by the noble Baroness, Lady Young. Having been retabled, Part III is completely wide open to amendment. On Second Reading and again in Committee, I ventured to deprecate any attempt to rewrite it or even to do anything far short of that. On the other hand, I also ventured to approve the slight adjustments that my noble and learned friend had made in the Bill as it emerged from the Jellicoe Committee last Session. I deprecated attempts at wide amendment partly because that might adversely affect the Jellicoe procedure and partly because that Bill had been closely examined by the Jellicoe Committee.
However, in my submission, this amendment is justified—indeed, it is called for. In invoking conduct, it brings this provision into line with Clause 9, where conduct is especially mentioned as relevant in the case of orders precluding divorce. Conduct is also statutorily relevant when one comes to such matters as financial provision orders or property orders. Including conduct here brings this provision into line with those others.
There is also a technical reason which I hope your Lordships will allow me to put forward. It is a technical rule of statutory construction which is called the ejusdem generis rule. It is a rule of common sense. It says that, where there is a general provision and particular instances associated with it, the general provision will be construed in the light of the particulars. If there were an Act of Parliament dealing with, for example, the transport of animals and it referred to, "cows, sheep and other animals", the phrase "other animals" is wide enough to include menagerie animals, but the court, applying common sense, would say that Parliament could not have intended that and that "other animals" must be construed in the light of the cows and the sheep and might, for example, include domesticated goats. That is the question here. One sees the words "shall have regard to all the circumstances". If it stopped there it would certainly be broad enough to include conduct. However, it goes on to particularise (a), (b) and (c). Those matters would not necessarily be cognate with conduct. If one wanted conduct to be considered in all the circumstances, having particularised three one must add the fourth. Therefore, I support the amendment.
10.15 p.m.
Lord Clifford of Chudleigh: My Lords, I repeat my support of the noble Baroness in both amendments. I do not mind reiterating the Richards case, because what the judge has to say about that is worth noting. He felt that,
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having granted Mrs. Richards' application, he had to make what he described as a thoroughly unjust order. The judge expressed disgust by saying:
"Justice no longer seemed to play any part in this branch of the law".
We are discussing the same branch. The matter would have remained there had not the noble and learned Lord, Lord Hailsham of St Marylebone, introduced the need for a degree of blameworthy behaviour when the decision was appealed. I am grateful to Dr. Stephen Cretney of All Souls College Oxford for bringing this matter to my attention. I know that he has advised others in this House.
Part III of the Bill removes the requirement for the court to have regard to the conduct of the parties before making an order. Instead, it adds an entirely new balance of harm test which will dictate when an order should or should not be made. There is no mention of justice or reasonableness in the proposed balance of harm criterion. One wonders if there is any valid reason for leaving it out. After all, justice and reasonableness are now given prominence in Schedule 2. Your Lordships will note that from Amendments Nos. 120A and 126D.
The courts have made it clear that an ouster order is a draconian measure. That seems to me to be plain commonsense. Do we not need more than a mere balance of harm test? Do we not need to have some misbehaviour before we require a court to eject a party? We should be most grateful to the noble and learned Lord the Lord Chancellor for his Amendment No. 112F which goes some way to meet this point. One wonders whether it may go a little further. If it is asserted that a child is being considered, the mere presence of the respondent may be enough to have him ejected. The definition of "harm" in the case of a child extends to the impairment of development, which is very different from domestic violence.
The noble Baroness has already mentioned medical opinions. In practice, it would not be difficult to secure a medical opinion that the presence of one party in a home damaged the health of a child. At the very least, the harm test should go. If conduct is restored, the harm test adds nothing and can be removed. Part III, and particularly these clauses, is not chiefly about domestic violence. In my reading of this part of the Bill I am unable to find the word "violence". It may be there and I should be grateful if someone would point it out to me. In any event, I support the noble Baroness.
Lord Meston: My Lords, this important question was considered extensively during the Jellicoe Committee stage of the Family Homes and Domestic Violence Bill, as it was, now substantially restated in this part of the Bill. The arguments were finely balanced, but my recollection is that in the end the decision was to remove express reference to conduct and to prefer to focus on the effects of conduct or misconduct, hence the reference to "health, safety or well-being" in subsection (6)(c).
The thinking was that under the existing system—I can confirm this to some extent from personal experience in practice—references to conduct in the

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Matrimonial Homes Act 1983 tend to encourage sometimes exaggerated allegations of misconduct, typically by the applicant to persuade the court to grant an ouster order. The intention, as I have already said, of the Committee in agreeing the formulation which is reproduced in the Bill was that rather than look at conduct itself, it was more appropriate and realistic to focus upon the effect of misconduct.
I have no doubt that, as under the existing law, ouster orders will continue to be regarded as drastic orders of last resort. It will undoubtedly continue to be the position that ex parte ouster orders will be extremely rare.
The Lord Chancellor: My Lords, Amendment No. 108 seeks to include conduct as one of the specific criteria the courts must consider when deciding whether to make an order regulating the occupation of the home under Clause 28(3). Under Clause 28(6) the court is instructed to have regard to all the circumstances. It will thus be able to take conduct into account whenever it considers it right to do so.
There are also three specific factors to which the court is to have regard. These are the relative housing needs and resources of each of the parties, their financial resources and the effect of any decision by the court to make an order or not on the health, safety and well-being of the parties or any relevant children.
The reason for that focus is to concentrate the mind of the court on the effect that any order it may make will have on the parties, and the effect it will have if they continue to live in the current situation. That does not mean that conduct is not relevant. It often will be. Clause 28 recognises that.
In addition to the three factors that I have mentioned, where it appears to the court that the applicant for the occupation order, or any relevant child, is likely to suffer any significant harm if an order containing one or more of the provisions in Clause 28(3) is not made, the court has to apply the balance of harm test.
When the test is satisfied the court has a duty to make an order under Clause 28(3). Amendment No. 112F, which I have tabled and to which the noble Lord, Lord Clifford of Chudleigh, referred, changes the definition of "harm", taking account also of the amendment which was tabled in Committee by the noble Lord, Lord Irvine of Lairg, so that harm to the applicant must be attributable to the conduct of the respondent, (although not necessarily deliberately) so conduct in those cases is clearly important and taken into account. However, for the reasons I have given, that does not fit well into the subsection proposed by my noble friend Lady Young.
The effect of Amendment No. 109, which I assume my noble friend intended us to have regard to at this time also, would be to remove the balance of harm test where the applicant, whatever the marital status or relationship to the respondent, was entitled to occupy the property. The balance of harm test requires the court to consider whether there will be significant harm to an applicant or child if no order is made. If the court
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concludes that there will be such significant harm then it considers what significant harm there may be to the respondent or the child if the order is made.
The court is then required to balance the two and if the harm to the applicant or child is greater than the harm to the respondent or child the court must make the order. The purpose of this test is clearly to focus the court on the effects both of its actions and on the domestic situation of the parties. By removing the test the court's emphasis would be on different areas, and without the addition of the balance of harm test Clause 28(6) could operate to give undue weight to the economically weaker party, which would be the opposite of what my noble friend and the noble Lord, Lord Clifford, have in mind.
Additionally, the test or questions of a similar nature are part of each of the clauses dealing with occupation orders. This amendment removes the test only from that clause which deals with an applicant who is entitled to occupy the home by virtue of having some property interest in it. It would therefore create the anomaly that a court would sometimes be under a duty to make an occupation order for a former spouse who had no interest in the property, but would have no such duty to make an order for a former spouse or spouse who had such an interest. Taken together, the two amendments would have the effect of requiring the court to consider conduct before any order was made under Clause 28, but not under any of the other clauses dealing with occupation orders. That would be a clear anomaly.
For the substantial reasons that I have outlined, I suggest that the amendments are not appropriate in the circumstances of this case and, if given effect to, would create considerable anomaly. The matter was examined carefully in the committee chaired by my noble and learned friend Lord Brightman. The report of its proceedings is available. Amendments Nos. 108 and 109 have the effect which I have sought to describe.
Baroness Young: My Lords, in moving the amendments I have taken the advice of Mr. Peter Duckworth. I recognise that they are not complete as they stand. Indeed, were they to be accepted consequential amendments would have to be made to Clauses 30 and 31. Therefore, I recognise the point made by my noble and learned friend.
Perhaps I may say that he spoke with such rapidity when he read his brief on this point that at times I found it slightly difficult to follow all the intricacies of the argument. However, I understood from the noble Lord, Lord Meston, that when the matter was considered by the Jellicoe Committee the arguments were finely balanced.
References were made to conduct and my noble and learned friend has recognised that that is included in this part of the Bill. However, he has not explained, to my satisfaction at any rate, why the present situation is not working and why he has overturned the provisions of the Matrimonial Homes Act in writing this part of the Bill. That was not clear and he did not explain the aim of this part of the Bill.

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I shall read carefully what has been said. I am not entirely satisfied by the answer that I have received. I believe that if we do not get this matter right there could be real injustices created. I shall withdraw the amendment, although I shall probably return to it on Third Reading.
Amendment, by leave, withdrawn.
[Amendment No. 109 not moved.]
Clause 31 [One cohabitant or former cohabitant with no existing right to occupy]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 110:
Page 22, leave out line 24.
The noble Lord said: My Lords, in moving Amendment No. 110, I shall speak also to Amendments Nos. 111 and 112.
These three amendments are designed to restore the full force of the previous Bill before concessions were made to appease what I have previously described as an uninformed minority in the other place, a minority that was in fact 20 years out of date.
The Domestic Violence and Matrimonial Proceedings Act 1976, as the noble and learned Lord is well aware, gave protection both to spouses and to unmarried partners against domestic violence. That protection was underpinned by a power in the court to make an ouster order against the violent party.
Amendments Nos. 110 and 111 are designed to restore the Bill to its original form, with which the noble and learned Lord previously agreed in one important respect—that is, to restore the balance of harm test in all cases. Under Clause 28(7), the test for making an ouster order in favour of the partner with the right of occupation against the partner without any such right—for example, against a partner with no legal interest in the property—is to make the order if the order will protect the applicant or a child from significant harm, but not to make that order if as great or greater harm will be caused to the other party or a child from the making of the order. That is what is called the balance of harm test. What is required is for the court to make a detailed appraisal of the consequences of making or abstaining from making an order.
Neither the Law Commission nor your Lordships' House in its previous deliberations suggested that there was anything wrong with the balance of harm test in both classes of case. Our previous Jellicoe Committee was chaired, with great success, by the noble and learned Lord, Lord Brightman, whom I am pleased to see in his place even at this late hour. I hope that he will stand up for the decisions of his Committee on that occasion. Neither the Law Commission nor your Lordships' House before suggested that there was anything wrong with the balance of harm test or that it should not be equally applicable in cases where the victims of violence had no strict legal right to occupy the property.
The new provisions distinguish between orders made in favour of those with an entitlement to occupy and orders made in favour of those with no such entitlement. So the balance of harm test, if satisfied, must result in
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orders in favour of those with rights in the property. But, even if the balance of harm test is satisfied in favour of those without any legal rights in the property, the matter is purely within the discretion of the court.
Under the proposals of the Law Commission, if the court is of the view that the balance of harm test is satisfied—that is, that more harm would be caused to that applicant or any child than would be caused by not making the order—the court must make an order in favour of the non-entitled applicant.
The fact is that the test for non-entitled applicants is being deliberately changed to their disadvantage. The courts will be bound to give effect to the different test in their cases and to hold that they have a discretion to withhold protection from non-entitled partners even though the balance of harm test is satisfied in their cases.
That severely weakens protection for the abused because it consigns to a second-class protection those already vulnerable because they lack property rights. It cannot be said—and I ask the noble and learned Lord on the Woolsack to say if he disagrees—that the two different tests will make no difference in practice. If that is what is to be said, why make the difference? The purpose of these amendments is to give equality of court protection to all victims of domestic violence; and that must be right in principle.
Amendment No. 112 deals with a related but distinct subject. It is aimed at restoring the previous provisions in the Bill in the form in which they left your Lordships' House which hereto have been altered as a sop to a minority of objectors. But the way in which they have been altered here opens up a dangerous gap in the protection which the court may confer on victims of domestic violence.
The previous provisions gave the flexibility of renewing protection for as long as was necessary. Of course, the court would need to be satisfied that the continuance of the ouster order was necessary to protect the victim and any children. Typically, the court might make an ouster order for, perhaps, three months. The reasoning would be that in a domestic crisis the parties need time to reflect on and to take steps to deal with their situation. But if for good reason the three months did not prove to be sufficient, under the old provisions—the provisions which first appealed to the noble and learned Lord—the court had the flexibility to continue its protection for as long as was needed.
Ouster orders in favour of non-owners may now be for six months only with the possibility of one further extension of six months but no further extension whatever the circumstances. I recognise that it may be that in many cases twelve months will, in practice, be adequate. But in the circumstances of such cases in a very sensitive jurisdiction, where the facts of every case vary so infinitely, it is unhelpful to tie the court's hands to arbitrary time limits. The judges should be trusted.
I have little doubt that some cases will arise in which acute difficulty will be found in rehousing the abused party or where the couples may be elderly, ill or even terminally ill. If alternative accommodation does not become available to the abused party within 12 months,

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under the Bill in its present form the courts are literally powerless to prevent that individual being turned out in the street. That must be wrong in principle.
I daresay that there may be sops to the uninformed which may not matter much in practice. Although he did not express himself in that language on Second Reading, that was the general sense of what the noble and learned Lord, Lord Brightman, said on that occasion. But I must submit, with respect, that this is one sop too far. It is repugnant to justice. Those who are in favour of the changes to the previous provisions—the previous provisions in which the noble and learned Lord believed—really have a duty to explain how their object can conceivably be arrived at by insisting on this gap in the courts' protective powers. How can the removal of the discretion to provide protection over an unlimited period of time conceivably strengthen the family or family life?
I suggest that this gap leaves the abused and the uniquely vulnerable at risk of homelessness. I have some difficulty in accepting that the noble and learned Lord really believes that the alterations to the provisions in the previous Bill, now incorporated into this Bill, are genuine improvements. If he thought that the new provisions which he has brought forward are right, why did he not bring them forward in the first place? I have difficulty in accepting the proposition that he is truly persuaded by the arguments of the uninformed minority to which he has acceded. Therefore, I commend these amendments with a greater sense of confidence. I beg to move.
Lord Brightman: My Lords, I support the amendments. I begin by emphasising that the Family Homes and Domestic Violence Bill of the last Session, upon which this part of the Family Law Bill is based, was not directed towards saving the institution of marriage; it was directed towards regulating matters after the marriage had broken down and after a family home has ceased to be a family home. It was directed towards the avoidance of violence between a couple who had set up home together and then split up. Above all, it was directed towards the protection of any child living in the family home. The purposes of Part III of this Bill are precisely the same.
One way of regulating matters introduced by the earlier Bill, and repeated in this Bill, is the making of an occupation order, or ouster order as it is so often called; that is to say, a temporary order regulating the occupation of the family home after the breakup of the relationship between the parties. For those purposes there is no logical reason for differentiating between an unmarried couple who set up home together and a married couple who set up home together. The earlier Bill, therefore, rightly equated an unmarried couple with a married couple for the purposes of that Bill.
That was surely correct. If a couple are living together and the relationship comes to an end, exactly the same problems will arise whether the family home has been set up after a marriage in church, a marriage in a registry office or no marriage at all. Any children that the couple may have will need exactly the same protection in the
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one case as in the other. Therefore, it seems to me that the court ought to have jurisdiction to make the same orders on the same basis whatever the origin of the family home.
Under the Bill that we are now considering there is to be a built-in bias against an unmarried couple who set up home together which did not exist under the earlier legislation. The question before your Lordships is: is it right to introduce that bias? To spell out the bias in broad terms, an occupation order is to have a maximum life of 12 months in the case of an unmarried applicant who does not have property rights in the family home. No such ceiling exists in the case of a married applicant. Further, what I will call the "balance of hardship" is to be weighed differently if the family home was based on a marriage than if it was based on cohabitation without marriage. That does not seem to me to be logical because this part of the Bill is not concerned with marriage or divorce; it is concerned with a family home and the children who live in it. Therefore, I ask myself why different rules should apply to the jurisdiction of the court according to whether the family home was based on a marriage or on cohabitation.
In approaching this part of the Bill and the amendments proposed to be made to it, five factors have weighed with me. First, the distinction between a family home set up by a married couple and a family home set up by an unmarried couple is not one which was recommended by the Special Public Bill Committee which examined the predecessor of this part of the Bill over many days and in great depth. Secondly, it is not a distinction which your Lordships sought to introduce into the earlier Bill which was passed by your Lordships. Thirdly, it is not a distinction which applies to non-molestation orders under the later clauses of the Bill, Fourthly, it is not a distinction which is supported by the Law Society. The Law Society has written to me to say that it supports the provisions of the earlier Bill in preference to Part III of this Bill. Fifthly, it is not a distinction supported by the Family Law Committee of Justice. That committee is chaired by Dame Margaret Booth. Before her retirement, Dame Margaret had immense experience in this field. She was a judge of the Family Division of the High Court for 15 years, from 1979 to 1994.
As a result of those considerations, I have no doubt that I ought to support this group of amendments, which are designed to restore the provisions of the Family Homes and Domestic Violence Bill of the last Session.
I am bound to speak on this matter objectively. I must therefore address one further question which concerns me and on which I may differ from the noble Lord, Lord Irvine. How important are these amendments to the general scheme of the Bill? I am not convinced that in practice it will make a great deal of difference whether the amendments are accepted or rejected. Twelve months—which, as your Lordships have been told, is the maximum currency of an occupation order in the case of a non-property owning cohabitant—should be adequate for sorting out the situation. As regards the balance of hardship, as I said at Second Reading, I feel sure that a judge will always seek to promulgate an

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order that is fair and just and suited to all the circumstances of the case without adopting too legalistic an approach.
In the result, although I certainly support the amendments, I do not think that it will be catastrophic if your Lordships reject the amendments. Above all, I want to see Part III of the Bill placed on the statute book as soon as possible, either with or without the amendments that are proposed.
10.45 p.m.
Earl Russell: My Lords, I agree with every word that the noble Lord, Lord Irvine of Lairg, and the noble and learned Lord, Lord Brightman, have said, and I do not propose to repeat it.
Baroness Darcy (de Knayth): My Lords, as very much a lay member of the committee so skilfully chaired by my noble and learned friend Lord Brightman, I should like warmly to support the amendments. Surely when dealing with cases of domestic violence what matters is the level of protection that you give to those involved, not whether they have been married or cohabiting. As my noble and learned friend said, the children of all parties need equal protection. Therefore, if the noble Lord, Lord Irvine, decides to divide the House, I shall go through the Lobby after him, because I feel that the committee got it right.
I should like also to associate myself strongly with the sentiments of my noble and learned friend, Lord Brightman. I have the utmost respect for the noble and learned Lord the Lord Chancellor, and I see that it is very important to get the Bill through.
The Lord Chancellor: My Lords, my noble and learned friend Lord Brightman summarised the situation in a way that, like the noble Earl, Lord Russell, I cannot improve on. However, I should point out, as I did in Committee, that the amendment appears to refer to subsection (4) rather than subsection (5). Perhaps that is a correction that the noble Lord, Lord Irvine, would wish to make at some stage, if by any chance this amendment were to survive.
The noble Lord took to me to task, in a rather gentle way, for having come forward with a Bill which is not exactly the same as the one that left this House in the previous Session. But, fortunately for the country, I am not a dictator and I require to get Bills through Parliament. Strong views were expressed in the other place about aspects of this matter, views of which, as a responsible Minister, I have to take some account.
My noble and learned friend Lord Brightman said that there was a bias against the unmarried—I paraphrase, of course—which there ought not to be. There is a distinction between the married and the unmarried in respect of rights in the matrimonial home, in that the married person has a right in the matrimonial home whereas the unmarried person does not. That distinction is in this Bill, just as it was in the law before.
It is not for me to articulate the worries of my friends in another place about this Bill. However, I think that they were concerned that the Bill might give the impression that we were seeking in all respects relevant
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to the measure to equate the unmarried with the married. The Bill does not do that, and never has. But I was obliged to address those concerns. The Bill has always recognised a clear distinction between the unmarried and the married in that the married have rights in the matrimonial home which the unmarried do not.
This series of amendments deals with the unentitled cohabitant—that is, one who has no property right in the home in question. Looking at the matter in the light of the examples in case law, it seemed to me that the distinction between the two classes could be reasonably reflected in the way that I have done by giving effect in this way to the amendment which these amendments are designed to retract, without damaging the real protection that the Bill affords.
I suggest that providing for a maximum period is consistent with the fact that the unmarried do not have rights in the matrimonial home in this specific situation. I think it also right that the courts should have a discretion in the matter which they do not have in the case where the person in question has a right in the matrimonial home. After all, you would expect rights to have some effect.
I am not saying that the courts should be told precisely what to do by reason of the absence of right. What I am saying is that, where there is an absence of rights, the court should have complete discretion. I have no doubt that the court will do justice taking account of all the circumstances. In my submission, it is right to take some account of the distinction which exists between the married and the unmarried. I have sought to do so in a way which I am glad to think is considered by my noble and learned friend, who knows this Bill well, as one which will not have a very significant effect in practice in diminution of protection.
On any view, orders under this jurisdiction are draconian in character, and, where the person has no right whatsoever apart from the order in the matrimonial home, it seems right that there should be a limit on the extent to which the court can take such a serious step as to remove someone who would otherwise be entitled to occupy the home for the benefit of someone who had no such entitlement.
I therefore believe that it is appropriate, having regard to the progress of the provisions through Parliament, that such orders should be finite and subject to the restrictions which the amendments are designed to remove. Discretion in relation to the balance of harm test appears to me to be appropriate. A reasonable limit on the orders that may be made where there is no other entitlement seems to me also to be appropriate. I therefore do not feel able to accept the amendments.
Lord Irvine of Lairg: My Lords, it is a truism that no one is entitled to be a dictator in a democracy. I can think of no one less qualified by character and attitude of mind for that position than the noble and learned Lord on the Woolsack. However, the irony is that it is the uninformed minority whom the noble and learned Lord has permitted to be the dictators in the matter. I shall return to the amendments on Third Reading with some confidence on the basis that the noble and learned Lord truly—if I may put it this way—continues to agree with

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himself the first time round rather than agreeing with himself the second time round. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 111 and 112 not moved.]
Clause 36 [Additional considerations if parties are cohabitants or former cohabitants]:
Earl Russell Earl Russell moved Amendment No. 112A:
Leave out Clause 36.
The noble Earl said: My Lords, it would not be right for me to challenge anything in Part III of the Bill without first paying tribute to the noble and learned Lord on the Woolsack for the amount of care, thought, effort and sheer intelligence that he has devoted to what is now Part III of the Bill, both in this Session and in the last. Anything I say is not meant to cast the least doubt on the proposition that he has done a good job of work.
I also wish to say how much we owe to the Special Public Bills Committee, under the Jellicoe procedure, chaired by the noble and learned Lord, Lord Brightman. I have looked at the minutes of the committee and it gave a far more exhaustive consideration to the Bill than any we have managed in the Whole House. I believe the procedure to be a good one. As regards these Benches, this is a free vote Bill. As I understand it, this is an issue of conscience and I hope that the point is taken all round.
In the debate on the humble Address, the noble and learned Lord said that the changes were a matter of achieving consensus. I understand the need to achieve consensus. The question is whether the changes have achieved it. They have conciliated some people, at the price of causing—to use language in the euphemistic way appropriate to this Chamber—extreme distaste to a large number of other people. If I am asked whether the changes have achieved consensus, the words which come to mind and which I shall not repeat are those of Eliza Doolittle.
I am not aware of a single person of my acquaintance who does not regard the changes, especially Clause 36 which I now address, with extreme distaste, to put it no higher. If the noble and learned Lord wishes to get a flavour of the way many outside this Chamber feel about the changes, he might look at the discussion on the Rory Bremner show after the Bill was abandoned in the last Session. I should not like to be on the receiving end of such comments.
The clause to which our attention is directed here is Clause 36 which instructs the court, in deciding whether to make an occupation order,
"to have regard to the fact that the parties have not given each other the commitment involved in marriage".
That clause is on a fork with which we in this Chamber are perhaps familiar: either it is useless or it is pernicious. The question is: does the clause actually diminish the physical safety of people in cohabiting couples who have been subjected to assault? If it does, it is pernicious. It lowers the duty to preserve the Queen's peace below a series of abstract principles
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which, in any country that puts the Queen's peace first, have to come second. But if the clause does not have immense practical effect, what is the point of putting it there?
At present, 20 per cent. of live births are to cohabiting couples. Assuming that they have roughly average fertility, that means that approximately 20 per cent. of couples are cohabiting. That is one in every five couples we might meet at a party. So, if we start holding forth to five couples about the evil of cohabiting, it is very likely that one of those couples will be among the people we are denouncing. Those are the sort of circumstances in which it is wise to mind one's manners. Speaking in this way of large bodies of one's fellow citizens is neither good politics nor good form.
You can, now, if you are filling in an entry for Who's Who, appear in the volume along with your partner instead of your spouse. Invitations to presidential receptions in the British Academy—which is not an entirely unreflectable body—say that you may bring your spouse or your partner. It is in fact a recognised status. Those who hold that status, and those who, like me, have many close relatives and friends in that position, are liable to take offence at any suggestion that they should be treated as second-class citizens.
Why should they be so treated? One could argue a perfectly logical case on grounds of the religious sanctity of marriage. One must respect the view of those who think that only marriage in the sight of God is legitimate. I make no argument with that. But the Bill has already abandoned that ground by extending its protection to those who, like myself, are married in the sight of the state but not in the sight of God. So I do not see how this distinction can possibly rest on that view of the sanctity of marriage.
The next possible ground is that which was advanced by the noble Lord, Lord Habgood, at Second Reading: the ground that marriage is a public status and cohabiting is not. That would be a sound ground in principle on which to make this distinction. But I believe it to be unsound in fact.
Since the National Assistance Act 1948, the law has increasingly come to recognise cohabiting as a status. The jobseekers' regulations that we passed last month referred, without any apparent second thought, to "a married or unmarried couple". I was most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for conceding in Committee that the view that cohabiting is a public status in law is a valid one. That recognition, made against his own inclination, is an outstanding example of the courtesy and integrity which make the noble and learned Lord one of the most valued Members of this House. I am deeply grateful to him for it.
Cohabitants are clearly identifiable. So, if they in fact hold public status—and I will listen to what the noble and learned Lord says about that—that is not a reason for discriminating against them.
The reason given in the Bill is that they have not given each other the commitment involved in marriage. That, also, I believe to be false in fact. What I take to be the commitment involved in marriage is that sheer gritty determination which makes you, when things go

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wrong, buckle down and decide that you are going to make it work, come hell or high water. Among those people I know well who set out to cohabit some 30 years ago, perhaps believing that they were bringing in a new order, that commitment has been as present and as absent as among the married couples that I know. In fact, there has been no difference. That is one of the things that amuse me most about the whole debate. They simply behave like any married couples that I know.
The noble and learned Lord the Lord Chancellor, and indeed the noble and learned Lord, Lord Simon of Glaisdale, argued that the law may, in certain circumstances, discriminate between the married and the cohabiting. That I grant, but there must be certain conditions precedent. First, the discrimination must be relevant to the purpose of the enactment; and secondly, the discrimination must not override something of greater importance. I believe that this clause fails both those tests. The preservation of physical safety is, I believe, more important than plain sentiment. I do not see why the test of cohabiting is relevant to the purpose of this Bill, which is physical safety.
moment ago, the noble and learned Lord on the Woolsack tried to rest a distinction on the ground of rights in the home. But that point, however sound it may be in general, is not here material. We are dealing with couples, whether married or cohabiting, where the spouse does not have a secure right to occupation in the home. One couple married is treated differently from another couple cohabiting, who in all other legal particulars are identical. That gives offence to 20 per cent. of couples for no good reason that I can see. Either it is a folly or it is a gratuitous offence. Either way, I do not see what useful purpose this clause serves. I beg to move.
Lord Habgood: My Lords, the noble Earl, Lord Russell, was kind enough to refer to my comments in the Second Reading debate. I speak in this matter as one of the unenlightened minority. Despite his very winning speech, I feel that there is an important distinction between marriage and cohabitation. Perhaps I did not express that extremely well when I referred to marriage as a public status. I should have said that it is a public and legal status.
Surely, the simple difference between marriage and cohabitation lies simply there; that one is a legal status and the other is not. One knows who is married; and being married carries certain rights and responsibilities. One may know who is cohabiting—I certainly grant that there are many for whom in practice cohabitation works out in the same way as marriage—but a cohabitee can equally well be somebody who has simply shacked up with somebody else for the past six months.
Unless one can draw some distinction between the permanent commitment and the kind of casual association which is sometimes what cohabitation is, then one is on a very slippery slope indeed. It seems to me that the place at which that distinction is drawn is where a relationship is legally recognised, and that is what marriage is about.
Lord Clifford of Chudleigh: My Lords, I totally agree with the noble Lord, Lord Habgood. I feel that the noble
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Earl should possibly consider that he may have been slightly misleading the House when he spoke of 20 per cent. Noble Lords know very well that there are people who, to coin a phrase, shack up. Let us be honest. If cohabitants produce children—let us say that one cohabitant is called Smith and the other is called Jones—are the children to be called "alias Smith and Jones"?
As regards the other point that the noble Earl mentioned, about invitations to parties as man and wife or a man and partner, that does not necessarily mean to say that the partner happens to be equivalent to the wife. I believe that the statistics that were brought up are totally misleading.
The Lord Chancellor: My Lords, in considering the question of what to do in relation to the powers referred to in Clause 31 of the Bill, which, as your Lordships know, is the clause which deals with a co-habitant or former co-habitant with no existing rights to occupy, it provides, and did provide when it left this House on the last occasion, that among the things which the court were to consider, in all the circumstances of the case, were the nature of the parties' relationship. I should have thought that it was quite obvious that parties who have co-habited for an extremely short time would be in rather a different position in an order under this kind of provision, from those who had been living together for, say, 20 or 30 years.
There are a number of aspects of the parties' relationship which are relevant. I would have thought, faced with this problem, that it was perfectly reasonable to bring out the fact that, among the differences in relationships, was this particular difference. In my submission to your Lordships, this is a difference that is perfectly defensible; namely, that the parties have not given each other the commitment involved in marriage. That does not mean to say that they may not have given each other some other kind of commitment, but whatever it is, however like the one in marriage, it is not actually the commitment involved in marriage. They may even decide to stick it out through thick and thin and to have the grit and determination to go on all their lives. But they have not done so in the commitment involved in marriage. That is the way I see it.
They do not take vows in public which lead to legal obligations on both of them. Even following divorce, in the married situation the parties may have financial obligations to one another. By contrast, co-habitation can involve many different degrees of commitment, and so much so that I would go so far as to say that the only thing which is certain is that it is not the same as marriage. That is why I have focused particularly on that fact. This difference is all that Clause 36 is drawing to the attention of the court.
I fully accept that a co-habitant has the same right to be protected from violence as a married person. I do not accept that Clause 36 in any way prevents that. It is right that the court should take account of all the circumstances, including whether or not the parties are married, when deciding whether an occupation order is appropriate and what its terms should be. That is not making any distinction of a class type, whether second-class or first-class or anything, but making a

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distinction which in fact exists; namely the distinction between a co-habitant and a married person. What effect that will have on the court's consideration in any particular case is a matter for the court, just as I said earlier, in relation to Clause 31, when the court has to consider the nature of the parties' relationship. The precise effect of that, in the particular circumstances, is left to the court.
This clause was put in in answer to concerns expressed to me by colleagues in another place. It is legitimate to meet their concerns in this way which in no way damages the structure of the Bill and draws out in effect a particular aspect of a relationship which, in any event, will be implied. Certainly there is nothing to suggest that we are doing other than acknowledging an existing and realistic state of affairs, leaving the court without any further direction to take such account of it as it thinks proper in all the circumstances.
Lord Irvine of Lairg: My Lords, of course there is a distinction between those who have given to each other the commitment involved in marriage and those who merely cohabit, but can the noble and learned Lord give a practical illustration of how that distinction is a relevant distinction for the purpose of the exercise by the court of its power to make an occupation order?
11.15 p.m.
The Lord Chancellor: My Lords, yes. The married couple have financial obligations to one another which the unmarried do not have, and that might well be relevant. For example, if a cohabitant is thrown out of the matrimonial home, that cohabitant may have no redress whatever against the owner of the home, whereas a former spouse who is thrown out may well have a financial entitlement to, for example, a periodical allowance or something of that kind. In such circumstances, the relevance of the relationship may well be important.
Earl Russell: My Lords, it may surprise the noble Lord, Lord Habgood, that I agree with practically everything that he said. I think we all agree that we cannot extend protection except to people who have a public and legal status. If we do anything beyond that, we are doing something which is in danger of being void for its uncertainty. It is my understanding—the noble and learned Lord, Lord Simon, supported this point in Committee—that cohabitation is now a public and legal status. It was never my intention in moving this amendment to defend those who have shacked up together for a short time. That is far too vague to be proper to bring within the law.
The status of cohabitation is so well recognised in social security law (where it is part of the foundation of the basic principles of the law on the subject) that I think that it is clear enough. There are tests by which it can be recognised; such as where there are shared households and shared finances. When the noble and learned Lord said that a former cohabitant will not have any financial entitlement in the property, he is in fact mistaken. A good many cases are known to me
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personally of where a cohabitating couple have had a shared mortgage. If that is not a financial entitlement, I do not know what is. In such cases, we are dealing with something which is not void for uncertainty. Had I believed otherwise I would not have moved the amendment.
I say briefly to the noble Lord, Lord Clifford of Chudleigh, that the test I used in arriving at my 20 per cent. figure is the test used by Social Trends of a birth registered by both parents. I think that that is a sufficiently precise step to be taken seriously, and that the editors of Social Trends are right to rely on it.
I listened with great care to the reply of the noble and learned Lord on the Woolsack, but I simply do not understand why the difference which he rightly perceives is relevant to the force of this Bill. He talks about not making the commitment involved in marriage, but it seems that you could equally well say that I have not made the commitment involved in marriage because I did not do it in church. I respect that view, but it seems to me that for practical purposes I belong as to a married couple—and my cohabiting friends see it just the same way as I do. Those two cases are a lot more in parallel than most people have readily admitted.
The noble and learned Lord said that the cohabiting couple had the same right to protection and that he did not think that Clause 36 prevented that; but the noble and learned Lord is on a fork here: either occupation orders are part of protection or they are not. If they are, the cohabitor clearly comes off worse; if they are not, what are they doing in the Bill? I simply do not understand why this distinction is relevant to a Bill which is concerned with physical safety. I would willingly withdraw the amendment. However, one cannot move that a clause do not stand part at Third Reading. This is the last chance that I have to ask for the opinion of the House. Regretfully, I must do so.
11.20 p.m.
On Question, Whether the said amendment (No.112A) shall be agreed to?
Their Lordships divided: Contents, 11; Not-Contents, 30.

Division No. 2

CONTENTS

Addington, L.

Irvine of Lairg, L.

Brightman, L.

Kilbracken, L.

Darcy (de Knayth), B.

Lawrence, L.

Graham of Edmonton, L. [Teller.]

Meston, L

Hamwee, B.

Monkswell, L.

Russell, E [Teller.]

NOT-CONTENTS

Addison, V.

Cranborne, V. [Lord Privy Seal.]

Annaly, L.

Elles, B.

Blatch, B.

Elton, L.

Chalker of Wallasey, B.

Faithfull, B.

Chesham, L.[Teller.]

Ferrers, E.

Clifford of Chudleigh, L.

Habgood, L.

Coleraine, L.

Lindsay, E

Courtown, E.

Long, V.

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Lucas, L.

Park of Monmouth, B.

Lyell, L.

Phillimore, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Shaw of Northstead, L.

Simon of Glaisdale, L.

Stoddart of Swindon, L.

Miller of Hendon, B.

Strathclyde, L. [Teller.

Mountevans, L.

Trumpington, B.

Northbourne, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
11.28 p.m.
Clause 40 [Ex parte orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 112B:
Page 27, leave out line 15 and insert ("(3) If the court makes an initial order, it must").
The noble and learned Lord said: My Lords, with this amendment I should like to take Amendments Nos. 112C, 112D, 113A and 130A.
My purpose in tabling Amendments Nos. 112B and 112C is to remove a possible anomaly regarding ex parte orders which has been drawn to my attention. In certain circumstances where the need for an order is very urgent it is possible for the court to make an order even when the respondent is not present. When that is done it will be usual for a full hearing, of which all the parties have had notice, to be held shortly afterwards.
If that initial hearing was considered to have made the first occupation order, the six-month time limit on first orders would be taken up by the first order. In addition, if that initial hearing was considered to have made the first order and the full hearing the second order, then applicants under Clauses 31 and 33 could have been limited to occupation orders for a maximum of just over six months instead of just over a year. That was never my intention. By treating the ex parte order and any order made at a subsequent full hearing as one order, it will ensure that the orders taken together will last for a maximum of six months in cases where Clauses 31 and 33 apply and it will be possible for the court to grant one more order also for a maximum of six months at a later date. In this way, applicants will be treated the same whether or not their first application is made ex parte.
Amendments Nos. 112D, 113A and 130A are intended to ensure that individuals can take advantage of the protection offered against domestic violence, even if they live in an unusual home and one which would not come within the legal definition of land. I am thinking in particular about such things as caravans and house-boats but there may be other homes which should also be included. Therefore, I have also included the broad term "structure".
Amendment No. 130A applies this new definition to the Children Act sections introduced by Schedule 6 which allow the abusing adult to be excluded from the home rather than the abused child where an emergency protection or interim care order is made. There are some clauses which use the term "dwelling house" which properly applies to land. For example, Clause 27 deals
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with matrimonial home rights becoming a charge on the property. In these clauses I have not changed the definition of dwelling house. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 112C:
Page 27, line 17, leave out from ("a") to end of line 18 and insert ("full hearing.
(4) If, at a full hearing, the court makes an occupation order ("the full order"), then—

(a) for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant section is to apply as if the period for which the full order will have effect began on the date on which the initial order first had effect; and

(b) the provisions of section 31(10) or 33(6) as to the extension of orders are to apply as if the full order and the initial order were a single order.

(5) In this section—
"full hearing" means a hearing of which notice has been given to all the parties in accordance with rules of court;
"initial order" means an occupation order made by virtue of subsection (1); and
"relevant section" means section 28(10), 30(10), 31(10), 32(5) or 33(6).").
On Question, amendment agreed to.
Clause 57 [Interpretation of Part III]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 112D:
Page 35, leave out lines 12 to 14 and insert—
(""dwelling-house" includes (subject to subsection (3A))—

(a) any building or part of a building which is occupied as a dwelling,

(b) any caravan, house-boat or structure which is occupied as a dwelling,

and any yard, garden, garage or outhouse belonging to it and occupied with it;").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Baroness Young: My Lords, in this amendment the noble and learned Lord gives the definition of a dwelling house. There appears to be a new concept in law about what constitutes a house. I am thinking, for instance, of the protesters at the Newbury bypass who seem to have made themselves a house in a tree. As a matter of interest, might that be included in the definition, or am I quite wrong? We need to clarify this point.
The Lord Chancellor: My Lords, I do not believe that the tree itself would be a structure. Of course, one has seen elaborate structures that may be based on trees but I do not think that living in a tree would qualify. It is a caravan, house-boat or structure—my noble and learned friend earlier spoke about the just and generous principle and that would apply here—
"which is occupied as a dwelling".
My noble friend can rest assured that the Newbury trees are not likely to be covered by this definition.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 112E:
Page 35, line 20, leave out ("a person") and insert ("an applicant").
The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 112F and Amendment No. 113 which is tabled by the noble Lord, Lord Irvine of Lairg. The amendments deal with two different but related issues to do with the definition of harm. Amendment No. 113ZA changes the definition of ill treatment so that it expressly includes forms of ill treatment other than physical ill treatment for both adults and children. Sexual abuse is limited to children.
Your Lordships may remember that the matter was discussed a little in Committee. We had brought in from the Children Act the definition of "harm" in relation to children which includes sexual abuse and other non-physical harm. The noble Lord asked me whether non-physical would apply to the adults too. There was a difficulty, therefore. Sexual abuse is limited to children and I do not intend to change that. The term is widely understood in terms of children and can include any form of sexual contact. I do not think it would be appropriately applied in the case of an adult.
The only difference between Amendment No. 113ZA and Amendment No. 113 is that Amendment No. 113 would extend the definition of harm for adults to include sexual abuse. As I said, I do not believe that that is necessary or appropriate.
Amendments Nos. 112E and 112F change the definition of harm in respect of an adult applicant. They provide that the harm in question will have to be the result of the conduct of the respondent, although the respondent need not be acting in a way deliberately intended to harm the applicant. "Harm" is used in the balance of harm test and in the question relating to the balance of harm. I believe that, in balancing the harm to the respondent if an order is made against the harm to the applicant if no order is made, it is reasonable that the respondent should be the cause of the harm to the applicant. "Harm" is also used by the court when considering the need to make an ex parte order or attach a power of arrest to an ex parte order. Again, I believe that it is reasonable to link the harm to the actions of the respondents since it is they who will potentially be disadvantaged if the initial order is made in their absence or if they become subject to the power of arrest in such circumstances. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 112F:
Page 35, line 21, at end insert ("attributable to conduct of the respondent, (b)
in relation to a respondent who has reached the a ge of eighteen years, means ill-treatment or the impairment of health,").
On Question, amendment agreed to.
[Amendment No. 113 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 113ZA and 113A:
Page 35, line 26, leave out from ("ill-treatment"") to end of line 27 and insert ("includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse;").
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Page 36, line 23, at end insert—
("(3A) For the purposes of sections 26, 27, 48 and 49 and such other provisions of this Part (if any) as may be prescribed, this Part is to have effect as if paragraph (b) of the definition of "dwelling-house" were omitted.").
The noble and learned Lord said: My Lords I spoke to these amendments with earlier amendments. I beg to move.
On Question, amendments agreed to.
Clause 58 [Rules, regulations and orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 114:
Page 36, line 35, leave out from ("instrument") to ("60(3)") in line 36 and insert ("containing an order, rules or regulations made under this Act, other than an order made under section 4(5) or").
The noble and learned Lord said: My Lords, with this I shall speak also to Amendment No. 115. Clause 4(5) allows the Lord Chancellor to vary the length of the period between the end of the period of reflection and consideration and the time limit for making an application for a divorce or separation order. I have tabled Amendments Nos. 114 and 115 to Clause 58 to provide that any order made for this purpose should be made under the affirmative resolution procedure. This matter was raised in Committee by my noble and learned friend Lord Simon of Glaisdale and supported by the noble Earl, Lord Russell. I indicated in Committee that I should be happy to table an amendment to alter the parliamentary procedure for making an order under Clause 4(5) and I am pleased now to be in a position to do so. My Lords, I beg to move.
Lord Simon of Glaisdale: My Lords, I am very much obliged to my noble and learned friend.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 115:
Page 36, line 37, at end insert—
("( ) No order shall be made under section 4(5) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.").
On Question, amendment agreed to.
Clause 60 [Short title, commencement and extent]:
[Amendment No. 116 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 116A:
Page 37, line 7, after ("Act") insert (", other than section (Division of pension assets)").
The noble Lord said: This amendment was spoken to by my noble friend Lady Hollis of Heigham when on Thursday, 29th February she successfully moved Amendment No. 10 and spoke, within the grouping, to that amendment, Amendment No. 86A and Amendment No. 116A. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Arrangements for the Future]:
[Amendment No. 117 not moved.]
Schedule 2 [Financial Provision]:
Lord Coleraine Lord Coleraine moved Amendment No. 118:
Page 40, line 41, at beginning insert ("Subject to section 22B of this Act").
The noble Lord said: I speak to Amendment No. 118, which stands in the names of my noble friend Lady Young and myself, and also to some of the amendments in a group which seems to amount to nearly fifty amendments. The amendments I shall speak to are Nos. 119, 120, 126 and 129. I understand that my noble and learned friend will be speaking to Amendments Nos. 120A and 126D, which deal with the same subject in this sub-group.
We have now reached Schedule 2, which deals with property matters on divorce, and the broad intention of these amendments is to alter the Bill in order to promote reconciliation and to give mediation and property settlements by agreement a chance to work out.
Under the Bill, once a statement has been made, a party may apply for and obtain a financial order. In the case of a property adjustment order, the order will be effective only on the granting of the divorce in due course, except in special circumstances.
As your Lordships will know, because we have referred to it before, under the existing law those financial orders are made only on decree nisi and come into effect on decree absolute. It is obviously entirely consistent with the thrust of the Bill and my noble and learned friend's intention, which I share entirely, that arrangements for the future should be completed before the divorce is granted. In this Bill, the question of financial arrangements should not be settled as late as they are under present law.
On the other hand, the effect of allowing the party to go to court immediately and obtain an order, whether that order comes into effect immediately or whether it is deferred until the divorce is granted, is really to create irretrievable breakdown in all but name. Once somebody has gone to court in that way at the very beginning of the period for reflection and consideration, thereafter there is really no practical chance of saving the marriage.
It is quite clear that one cannot preclude applications to the court for the entire period for reflection and consideration. Again, that would make it impossible for the future arrangements to be concluded in time. Therefore, these amendments try to strike a happy medium and provide that you cannot go to court until six months of the period has expired. The effect of that will be that, during that period, the parties involved in the divorce will have the opportunity of mediation and mediation will be given the opportunity to get off to a good head start over court applications; or the parties may attempt reconciliation; or they may go to their lawyers and try to reach agreement without going to court. That is bound to be beneficial to the ultimate divorce or to the reconciliation, if that takes place.
Amendment No. 118 is a paving amendment for Amendment No. 120. In short, it provides that no financial provision, other than interim periodical payments, shall be incorporated in an order during the first six months of the period. Amendment No. 126 provides similarly for property adjustments orders: they are not to be made during the first six months of the period.
Amendment No. 119 deals with lump sum orders. Amendment No. 120 provides that they are not to be made during the first six months but Amendment No. 119 provides that during the second six months an order for the payment of the lump sum is not to take effect until the divorce order is made, except in special circumstances. The amendment goes on to outline those special circumstances, including the case where the parties have agreed early on as to the terms of the proposed order. At this hour, I do not propose to go into any more detail about that amendment. I should explain that in relation to property adjustment orders, the Bill provides that they will not come into effect until the divorce is granted, except in special circumstances. The special circumstances defined in the Bill are defined in fairly broad terms. Amendment No. 129 seeks to expand and make clearer what those special circumstances are to be. I believe that the total effect of the amendments would be to make the provisions for financial provision in the Bill much more reasonable as between the parties and much more likely to promote a good divorce. I beg to move.
11.45 p.m.
The Lord Chancellor: My Lords, there are quite a number of amendments in the group. It may help at this late hour if I were to try to state my position in relation to them, giving such explanation as I think appropriate. Noble Lords who have tabled later amendments in the group would then at least know what I have in mind. However, whether or not your Lordships will be enlightened by what I say may be open to question.
I undertook in Committee to seek the advice of my Ancillary Relief Advisory Group (which is a group made up of experts, including members of the judiciary and practising barristers and solicitors, together with two leading academics) on the amendments tabled by the noble Lords, Lord Meston and Lord Clifford of Chudleigh to Schedule 2 to the Bill. I have now taken the group's advice and considered it carefully. As a result, I have tabled amendments to Schedules 2, 8, 9 and 10 to the Bill. I propose to speak to groups of the amendments which deal with particular aspects of financial provision. I shall, therefore, also deal with the amendments tabled by my noble friends Lady Young and Lord Coleraine, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Clifford of Chudleigh. At the same time, I shall speak to the Government amendments on the particular subjects.
Amendments Nos. 118, 119, 120, 120A, 126, 126D, 129, 133G and 133L all relate to the time when property adjustment orders and financial provision orders should take effect. Amendments Nos. 120A and 126D give effect to the intention that there should now be a general rule that financial provision and property adjustment

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orders should not take effect until on or after the making of the divorce order or separation order. The exception is that those orders can take effect before the making of the divorce or separation order where the court is satisfied that, in all the circumstances of the case, it would be just and reasonable to do so.
Amendment No. 133G ensures that, so far as the taking of the orders is concerned, where the court is varying the orders under Section 31 of the Matrimonial Causes Act 1973 it may only vary the time when the order is to take effect to a time earlier than the making of the divorce order or separation order where it would be just and reasonable in all the circumstances to do so. The amendments adopt the principles behind the amendments moved in Committee by the noble Lord, Lord Clifford of Chudleigh, and Amendment No. 119 tabled in the names of my noble friends Lady Young and Lord Coleraine.
On that one issue, however, I have not followed the views of my Ancillary Relief Advisory Group. The group's view was that those orders should always be made and be capable of taking effect before the divorce order or separation order was made. In particular, the group had in mind circumstances where the husband and wife are living in the same house with the children; there are insufficient funds to enable one spouse to seek alternative accommodation and the application for financial provision is contested. The couple are unlikely to agree a sale in those circumstances, yet the family could be living in a hostile environment for over six months until the divorce order or separation order is granted. The group considered that the availability of occupation orders in those circumstances would not provide assistance. The couple could feel forced to make allegations against one another so that occupation of the house could be regulated, or, alternatively, violence could actually result because of the tension in the home. The view taken was that there would be little to gain from having two sets of litigation proceeding at one time.
I considered the group's views carefully but decided that the rules should not generally permit orders to take effect before divorce. The making of the order itself should sufficiently focus parties' attention on the often grave financial consequences of divorce and the impact of divorce on their lives and those of their children to make them reflect further on whether divorce is really the right path for them to follow. Parties will not, therefore, generally sever financial links between them until divorce. Divorce settlements which take effect before the divorce order or separation order will not be the norm.
To accommodate the various circumstances where there may be a genuine need for an order to take effect earlier than the making of the divorce order or separation order such as those outlined by members of the advisory group, I have made the exception to the rule, which is that orders can take effect before that time where the court considers that it is just and reasonable that they should do so.
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Amendment No. 119 in the name of my noble friends Lady Young and Lord Coleraine states that financial provision orders can take effect in special circumstances. The special circumstances are listed for financial provision orders and, in Amendment No. 129, for property adjustment orders, and include where one or both parties urgently need to be rehoused. I hope that my noble friends Lady Young and Lord Coleraine will agree that the basic rule underlying those amendments and my own is the same. I have no longer referred to "special circumstances", which was the term previously used in relation to property adjustment orders, as my advisory group said that that term could be readily applied to most circumstances following divorce and it was therefore inappropriate to use the term "special". The term I have used is more likely to be effective in controlling the use of that power.
I have also received comments from certain members of the group on the specific circumstances referred to in my noble friends' amendments. I wondered whether they should be examples of circumstances when it would be just and reasonable for the order to take effect earlier than the divorce order or separation order. The views which I have received were against specifying those circumstances in the Bill. That is favourable towards trying to keep the orders' effect to the later stage. If one specifies circumstances then the court is likely to use those circumstances to make the order earlier, whereas if they are not specified the court's discretion is wider and, therefore, in the cases mentioned, the power will not necessarily be used to make the orders earlier. I suggest that the principle behind my noble friends' amendments would be better served by not specifying the particular circumstances. Fettering the court's discretion in that way is also out of line with the other discretionary powers in the 1973 Act. I accept the members' advice and urge your Lordships not to go down the road of specifying particular circumstances.
One of the circumstances specified in my noble friends' amendment is where both parties are agreed on the terms of the proposed order. I have given effect to that in Amendment No. 133L, which permits couples to obtain a consent order which takes effect before the divorce order or separation order where the exception to the general rule applies. I intend that rules should prescribe the type of information which the courts will require before making such an order. I do not wish generally to require court hearings when parties are agreed as that could lead to bitterness and hostility and incur costs. However, we need to ensure that the parties' agreement is properly recorded before the court proceeds on the basis that the order is agreed to.
I also asked my advisory group's views relating to my noble friend's amendments, Amendments Nos. 120 and 126, which prevent property adjustment orders and financial provision orders being made in the first six months of the period of reflection and consideration. Those members' views I received were that the new rule relating to the time when orders could be made and take effect was sufficient. It should ensure that couples do not rush into settlements. Where couples have agreed the financial settlement, they may well wish the court to

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approve the agreement as soon as possible to ensure that neither of them can renege from the agreement, which could lead to costly litigation. There are also other circumstances where one or more of the parties may want a court order within six months where, for example, one party is seriously ill or where a wasting asset needs to he sold. Other examples include the other circumstances outlined in Amendment No. 119. I therefore invite your Lordships not to agree that particular amendment of my noble friend.
I have also considered my noble friend's amendment, Amendment No. 118, which makes the new Section 22A(1) dealing with financial provision orders subject to the new Section 22B which contains restrictions on when these orders should be made. The amendment is unnecessary as the new Section 22A(11) already makes the new Section 22A(1) subject to these restrictions. I am sorry that this is a little dense, but I hope, nevertheless, that it is as sufficiently clear as the subject matter allows.
I now pass to interim lump sums, and Amendments Nos. 118C, 118D, 133A, 133B, and 138A. I have taken on board the amendment tabled in Committee by the noble Lord, Lord Meston, and Amendment No. 118D tabled by the noble Baroness, Lady Hamwee, and by Amendment No. 118 have given the court a statutory power to make interim lump sum payments until the application for a financial provision order can be heard. I believe that this was widely sought and I think that it is a considerable improvement. My Ancillary Relief Advisory Group's view was that the court's current inherent jurisdiction to grant interim lump sums was very limited and inadequate. There seems absolutely no reason to have great discussions about that if the circumstances of the case seem to require an interim lump sum. Amendments Nos. 133A, 133B and 138A are made as a result of conferring the power. They make necessary consequential amendments to the other provisions of the 1973 Act and among other things ensure that these lump sums can be paid by instalments. In addition, the criteria in the new Section 25(5) of the 1973 Act in Schedule 8 is extended so that it applies to interim lump sums and interim periodical payments.
I now refer to the deletion of new Section 22A(5) and (6) of the 1973 Act. Amendments Nos. 118E and 118F delete the new Section 22A(5) and (6) of the 1973 Act. The noble Lord, Lord Clifford of Chudleigh, drew my attention to the amendments when he tabled drafting amendments to them during the Committee stage. My Ancillary Relief Advisory Group considered that these provisions, which replace Section 23(3(a) and (b) of the 1973 Act, no longer added anything to the powers of the court to grant lump sum orders and that they should be deleted.
I now come to the question of interest on lump sums payable by instalments and deferred lump sums; Amendments Nos. 118G to 118L and 125A to 125F. Amendments Nos. 118G to 118L and 125A to 125F solve a technical problem with the wording of Section 23(6) of the 1973 Act, which is replaced by the new Section 22A(10) and (11) of Schedule 2. They ensure that the court can make an order for interest to be paid on lump sums payable by instalments or deferred lump
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sums from the date of the order to the date when it is due to be paid at any time on or after the making of the order. Equivalent amendments are made for the provisions relating to nullity. It is currently not possible to make such an order for interest after the making of the order.
The noble Lord, Lord Clifford of Chudleigh, tabled in Committee an amendment linking the rate of interest payable to the bank base rate. My Ancillary Relief Advisory Group considered this proposal but advised against it on the grounds that it was important that the court had complete discretion as to what rate of interest should be payable. The referral of the payment of a lump sum was of benefit to the payer and there were circumstances where the bank base rate may be wholly inappropriate as the court may consider a penal rate of interest is required or, alternatively, in other circumstances that a very low rate would be appropriate.
I turn now to the powers of the court on considering an application to vary a periodical payments order. Amendments Nos. 133H to 133K and 146A and 146B adopt, with technical adjustments, the amendments tabled in Committee by the noble Lord, Lord Meston. They give the court power, when dealing with an application for variation or discharge of periodical payments order, to make a property adjustment or lump sum order where it considers this appropriate in order to enable it to bring about a "clean break" by discharging or limiting the term of the periodical payments order. The amendments implement, with some minor modifications, the recommendation of the Law Commission in its report The Ground for Divorce and deals with the problems created by a lack of such a power which were highlighted in S v. S (1986), 1 Family Law Reports at page 71. My Ancillary Relief Advisory Group was in favour of the power.
The group was not, however, in favour of the other amendment to Section 31 of the 1973 Act tabled by the noble Lord, Lord Meston, at the Committee stage. It extended the power of the court to vary, discharge, suspend or revive a property adjustment order settling property, varying a settlement or extinguishing or reducing an interest in a marriage settlement. Some members of the group were reluctant to see any extension of the power to vary property adjustment orders in the interests of certainty.
The collective view of the group was that the question of when property adjustment orders should be varied was very difficult. The complexities surrounding it meant that this was one matter which could only be considered in the context of a major review of the substantive law relating to financial provision on divorce. In the meantime, where a question arose as to the variation of a settlement, use would have to be made, where appropriate, of the power to order a sale of the property under Section 24A of the Matrimonial Causes Act 1973 and the limited powers of the court to set aside orders, for example in Barder v. Caluori (1988), Appeal Cases,. page 20.
I turn to the question of conduct which was raised by the noble Lord, Lord Clifford of Chudleigh. His Amendment No. 129AB proposes that the court should

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take into account any conduct of the parties and the cause of the breakdown of the marriage. At present, one of the factors to which the court is to have regard when deciding whether, and if so how, to exercise its powers in relation to financial provision on divorce is the conduct of each of the parties if that conduct is such that in the opinion of the court it would be inequitable to disregard it.
Amendment No. 129AB is similar to the amendment which was tabled at Committee stage and on which I have sought my Ancillary Relief Advisory Group's advice. The group considered that the current provision worked well—it was reviewed in 1984, which led to the current provision—and there was no call for change. I accept that advice. Ancillary relief proceedings are not the appropriate means of identifying in detail the cause of marital breakdown. I am satisfied that it is right that conduct should be taken into account to the extent that is necessary to reach a proper distribution of the property between the parties and that the present test on which that is done is the appropriate one.
Costs, delay and litigation would be increased by extending the role of conduct. That test has been adopted as a result of very mature consideration of the matter over the years by the courts. I am not inclined to increase the role of anything that would cause unnecessary conflict when I believe that, where a substantial issue is raised by conduct, the courts can take account of it properly under the present arrangements.
Two other main amendments were tabled by the noble Lord, Lord Clifford, during the Committee stage of the Bill which my advisory group advised me against accepting: first, the proposal that periodical payments and secured periodical payments should automatically end when a party in whose favour the order is made starts to cohabit with another party as if married. This rule currently applies only on remarriage. The group was against extending the rule in the way in which the noble Lord suggested for two reasons. First, a cohabitee has no legal duty to maintain another cohabitee, in contrast with the position regarding spouses. Secondly, there are evidential difficulties in determining whether the payee is cohabiting as if married.
Secondly, the group was not in favour of the noble Lord's amendments to the provisions relating to variation on reconciliation. In particular, it was against removing protection to third parties who would be prejudiced if the order which had been made was varied or discharged.
There are then drafting amendments and amendments inserted for clarification: Amendments Nos. 118A, 118B, 126A, 126B and 126C. They are intended to ensure that the scope of financial provision orders should not be circumscribed by the making of an order in earlier proceedings and that the making of a property adjustment order in earlier proceedings should not prevent a further order being made in later proceedings subject to the restriction in the new Section 23A(2) of the 1973 Act.
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Amendments Nos. 122A and 129A clarify that applications have to be made for financial provision and property adjustment orders on nullity and bring the provisions into line with those on divorce in this respect.
Amendments Nos. 133E, 133F and 148A relate to the variation of property adjustment orders on or after the making of a separation order. They amend Section 31(2)(e) of the 1973 Act so that the powers to vary property adjustment orders made before or after the making of a separation order varying or settling property apply only where there is an application for a divorce order.
The new Section 31A of the 1973 Act in paragraph 8 of Schedule 2 which provides for variation on reconciliation could then be used where the separation order is rescinded. This had been my intention but the previous amendment to the provision did not put this properly into effect.
During the Committee stage, the noble Lord, Lord Meston, said he did not appreciate why the amendments to the 1973 Act were inserted by way of substitution. The reason, I understand, is that Parliamentary Counsel at the Law Commission who drafted the original Bill took this approach because of the complexities of the amendments necessary to take account of the change to the time at which the various orders could be made in relation to separation and divorce but not nullity. The separation and divorce provisions had to be "pulled" out of the existing relevant sections of the Matrimonial Causes Act and amended but the nullity provisions left as they are. Counsel took the view that to amend each section and subsection as it stood by distinguishing between the timing of orders during the separation and divorce process and those following nullity would have made the amended sections incomprehensible. (And if Parliamentary Counsel says they are incomprehensible, I am prepared to say that they are!) That is why the provisions relating to separation and divorce were separated out and redrafted.
Parliamentary Counsel's advice is that it is unlikely that the position will have changed in the developments that have taken place since then, but he has agreed to look again at the matter over the next few weeks as the Bill proceeds on its course in the light of the latest amendments to Schedule 2.
The Bill does not amend the law of nullity. For this reason, Schedule 2 to the Bill makes only minor modifications to the law relating to financial provision on nullity. I am accordingly unable to accept Amendments Nos. 122B and 122C by the noble Baroness, Lady Hamwee, to confer a statutory power on the court to make interim lump sum orders on nullity. Other amendments in the 1973 Act have also not been applied to nullity for the same reason. I will, however, take the need for a statutory power to make interim orders on nullity fully into account when I am reviewing the whole of the substantive law relating to financial provision on divorce and nullity in the future.
I hope that in the light of this explanation my noble friends Lady Young and Lord Coleraine will be able to withdraw the amendments to which I referred, and that Amendments Nos. 118D, 122B and 122C will not need

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to be moved. I hope that the noble Lord, Lord Clifford of Chudleigh, will feel that his Amendment No. 129AB need not be pursued in the circumstances.
I am sorry to take so long. On the other hand, I have been able as a result to give a reasonably comprehensive view of what all the later amendments in my name are about. I hope that noble Lords will feel that this is of some assistance.
Baroness Young: My Lords, I am bound to say to my noble and learned friend that I found it quite difficult to follow all the detail that we were given. Clearly, I shall have to read it. The amendments moved by my noble friend Lord Coleraine are, we believe, extremely important. I am not absolutely clear. I regret that that is entirely my own fault; however, it is quite late and the argument was rather complicated.
Perhaps I might extract two points on which I should like particular clarification. The first refers to our Amendments Nos. 120 and 126. I should like to know whether or not the court should have jurisdiction to make an order for financial provision or property adjustment other than interim maintenance at any time in the first six months.
This is, after all, a very important issue. As I understand it, if the court has the power to do that, it as it were indicates that the divorce is to take place at a time when I thought one of the principal points of this Bill was that the time of the operation at the beginning of the year would be a time for reflection, consideration and all of that. It is hardly likely to take place if the court is settling all the differences over property, which gives a finality to the situation which did not exist before.
It is probably entirely due to my failure to understand what my noble and learned friend said, but I should like to know whether his amendments put in a different way his very real point as to whether or not one can start the property settlements, as it were, virtually on day one. If that is the case, it negates a great deal of the whole idea of reconciliation, reflection, consideration and so forth.
The second point which I do not quite understand—again, it is probably entirely my own fault—concerns the question of whether a financial order other than an interim order should come into effect before the divorce or separation order on the just and reasonable test, which is the one to which my noble and learned friend referred, or only on the proof of special circumstances, which has been quite narrowly defined and included in Amendments Nos. 119 and 129 spoken to by my noble friend Lord Coleraine.
The point of my concern is that the just and reasonable test is not very tight. It implies that 12 months is not an absolute waiting period under the Bill but one which may be abrogated in certain circumstances. It is partnered with an earlier amendment. I should like to know how the courts would regard the just and reasonable test. For instance, would it be a fact that at the beginning they would confine it so that it has a limited effect? Over the passage of time would pressure from litigants and advocates be brought into effect to weaken the standard, so that it becomes a
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rule rather than the exception for orders to come into effect before the expiry of the 12 months? Then the 12-month period would become an empty formality with mounting proposals for abolition. That may be a very gloomy prospect for the future, but it seems to me central to all the provisions of the Bill that the 12-month period should stand as it is for a period of reflection and consideration.
I do not want to waste the time of the House at this late hour, but these are very important issues and I am not at all clear, from what my noble and learned friend said, whether his amendments, which cover very much the same ground about which we are all talking, satisfy my anxieties and those expressed by my noble friend Lord Coleraine on these matters.
The Lord Chancellor: My Lords, with the leave of the House, perhaps I could answer those two specific matters. I think I referred to them but I missed many other matters and I can bring them out now.
No order in this category will have effect before the divorce or separation takes place, unless it is just and reasonable in the opinion of the court that it should do so. The advice that I have been given by the Advisory Group on Ancillary Relief, constituted as I said, is that the phrase "special circumstances" will not be anything much in way of a protection. Almost any circumstances are special to the particular case and therefore that will not be much of a protection.
Noble Lords will have noticed that my noble friend Lord Coleraine, in Amendment No. 119, also states that:
"'special circumstances' may include the fact (if it be the case)",
and so on; and those are listed.
The advice that I received was that listing those would in fact promote the possibility that the court would have to give effect to an order before the divorce or separation order took effect if one of those circumstances applied, whereas the court might think that it was not in the interests of being just and reasonable that it should do so. The advice I have is that the amendment which I tabled would be more effective in achieving the purpose that my noble friend has in mind of keeping the general rule in favour of the orders taking effect only on divorce or separation rather than any alternative version which has so far been produced.
Perhaps I may say that, looking at that example, it can be seen how it would happen. The amendment says that:
"'special circumstances' may include the fact (if it be the case) that … both parties are agreed on the terms of the proposed order".
If that is a special circumstance, the court might find it very difficult to refuse to have the order made effective before the divorce or separation, if it had been agreed, whereas if the court can make it have this early effect only if it is just and reasonable to do so, even if the parties are agreed, it might not think that it was wise to do so in all the circumstances.
As regards the first six months, my proposal does not give effect to that. One of my most important points is that consideration of what will be the future terms on which the parties' property will be held can be a most important factor in deciding them to go back and try to make a go of the marriage. Therefore, while to have a

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sort of frozen period at the beginning has some attraction, I do not believe that that is in the ultimate interest of reconciliation in some cases. The truth is that some parties, when they get to this stage, are so much at loggerheads that there is really no prospect of them talking about anything which has to do with their present situation, but they might have to talk about the future and, in doing that, they might well come to talk again about their present relationship.
That is the effect of the amendments that I propose. The six months would not be sacrosanct. It would not be possible to have orders, apart from the interim orders, taking effect before the divorce or separation order was pronounced, except where it was just and reasonable to do so.
12.15 a.m.
Lord Meston: My Lords, perhaps I may briefly thank the noble and learned Lord for the very full and speedy way in which both he and the advisory group have responded to these amendments, and particularly to the amendments which, motivated by the Family Law Bar Association, I moved at Committee stage. I believe that I scored two out of three, which is not bad. As regards the amendments of my noble friend Lady Hamwee, I am not sure why it is that nullity proceedings are somehow discriminated against in connection with interim lump sum orders. I do not seek to explore that point at this late hour.
The only other matter I wish to comment on and welcome is the noble and learned Lord's indication about interest payments on lump sums. It seems appropriate to preserve the discretion of the court to set a rate. The disadvantage of linking interest to bank rate, for example, is that one might find oneself in the position whereby it was cheaper for the paying party to withhold payment of the lump sum than to borrow the necessary money at the usually friendly rate charged by banks, which is several percentage points above bank rate.
Lord Clifford of Chudleigh: My Lords, I wish to thank the noble and learned Lord for his summary and also for the letter he sent me today with advice from his advisory group. I shall certainly look at that with my legal advisers too before Third Reading. Before I sit down, I should like to accept the apology of the noble Baroness, Lady Trumpington. I believe that she was probably encouraged to make that slight error by the extraordinary reaction of another party in the House. I hope that that particular party will be noble enough to deliver the same form of apology.
Lord Coleraine: My Lords, I can probably speak for the whole House in saying how grateful we are that my noble and learned friend did take the trouble to put these matters to his advisory group and explain its advice to us in dense but, I believe, very important prose. There is a lot that he said that needs to be carefully considered.
As regards the amendments in the names of my noble friend Lady Young and myself, I feel sure that we shall want to consider carefully whether "reasonable and just"
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is a better way of expressing the matter than "in all the circumstances" or whatever the existing phrase is. Certainly, what my noble and learned friend said seemed to be correct.
On the question of proceedings in the first six months of the period, I am afraid that I cannot accept my noble and learned friend's idea that that is a frozen period. It is a period in which the parties can attempt reconciliation or mediation or attempt to reach agreement in some other way secure in the knowledge that if they do not reach agreement, if the mediation seems to be failing and if either party wishes to go to court, he or she may do so at the end of the period and get a court-ordered provision made. My noble friend Lady Young and I will want to reconsider this matter with a view to returning to it on Third Reading. In the meantime, I beg leave to withdraw Amendment No. 118.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 118A to 118C:
Page 41, line 19, after ("make") insert (", in favour of the same Party,").
Page 41, line 20, leave out ("in favour of the same party") and insert ("in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings.").
Page 41, line 24, after ("order,") insert ("an interim order for the payment of a lump sum").
The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
[Amendment No. 118D not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 118E to 118L:
Page 41, leave out lines 26 to 35.
Page 41, line 42, leave out ("subsections (5) to") and insert ("subsection").
Page 41, line 49, after ("section") insert ("("the main order")").
Page 42, line 3, leave out ("order that") and insert (", on or at any time after making the main order, make an order ("the order for interest") for").
Page 42, line 4, leave out ("are").
Page 42, line 5, after ("order") insert ("for interest)").
Page 42, line 6, after second ("the") insert ("main").
On Question, amendments agreed to.
[Amendments Nos. 119 and 120 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 120A to 122A:
Page 42, line 11, at beginning insert—
("( ) No financial provision order, other than an interim order, may be made under section 22A above so as to take effect before the making of a divorce order or separation order in relation to the marriage, unless the court is satisfied that that would be just and reasonable in all the circumstances of the case.").
Page 42, line 13, leave out from ("time") to ("the") in line 14 and insert ("while").
Page 42, line 15, at end insert ("is interrupted under subsection (6) of that section.").
Page 42, line 35, after ("may") insert (", on an application made under this section,").

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On Question, amendments agreed to.
[Amendments Nos. 122B and 122C not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 123 to 125F:
Page 43, line 37, leave out from ("by") to ("above") in line 38 and insert ("subsection (3)").
Page 43, line 41, leave out ("paragraph may") and insert ("subsection").
Page 43, leave out lines 44 to 46 and insert ("shall").
Page 44, line 5, after ("section") insert ("("the main order")").
Page 44, line 12, leave out ("order that") and insert (", on or at any time after making the main order, make an order ("the order for interest") for").
Page 44, line 12, leave out ("is").
Page 44, line 12, leave out ("are").
Page 44, line 13, after ("order") insert ("for interest").
Page 44, line 14, after second ("the") insert ("main").
On Question, amendments agreed to.
[Amendment No. 126 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 126A to 128:
Page 44, line 23, after ("makes") insert (", in favour of the same party to the marriage,").
Page 44, line 23, leave out ("in favour of the same party to the marriage") and insert ("in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings,").
Page 44, line 24, leave out ("of those orders") and insert ("order"). Page 44, leave out lines 34 to 42 and insert—
("(1) No property adjustment order may be made under section 23A above so as to take effect before the making of a divorce order or separation order in relation to the marriage unless the court is satisfied that that would be just and reasonable in all the circumstances of the case.").
Page 44, line 44, leave out from ("time") to ("the") in line 45 and insert ("while").
Page 44, line 46, at end insert ("is interrupted under subsection (6) of that section.").
On Question, amendments agreed to.
[Amendment No. 129 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 129A:
Page 45, line 17, after ("may") insert (", on an application made under this section,").
The noble and learned Lord said: My Lords, I think that I am right in saying that I have spoken to this amendment in connection with the others. I beg to move.
On Question, amendment agreed to.
Baroness Young Baroness Young had given notice of her intention to move Amendment No. 129AA:
Page 45, line 33, at end insert—
(". For section 25, substitute—
"Division of matrimonial property.
(1) The principles which the court shall apply in deciding what, if any, order to make under any of sections 22A to 24 above, are that—

(a) the net value of matrimonial property should be shared fairly between the parties to the marriage;

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(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) any economic burden of caring, after the marriage breakdown, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust over a period of time to the loss of that support after the marriage is dissolved or annulled;

(e) a party who seems likely to suffer serious financial hardship as a result of the marriage breakdown should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

(2) In subsection (1)(b) above—
"economic advantage" means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and `economic disadvantage' shall be construed accordingly;
"contributions" means contributions made whether before or during the marriage and includes indirect and non-financial contributions and in particular any such contribution made by looking after the family home or caring for the family.
(3) In applying the principles set out in subsection (1)(a) above, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.
(4) The net value of the matrimonial property shall be the value of the property at the time the court deals with the matter in exercise of its powers under this Part save that any appreciation or depreciation in value since the parties' separation which is primarily attributable to the acts of the party may be disregarded.
(5) Subject to subsection (6) below, in this Part 'matrimonial property' means all the property belonging to the parties or either of them which was acquired by them (otherwise than by way of gift or inheritance from a third party)—

(a) during the marriage: or

(b) before the marriage for use by them as a family home or as furniture and effects for such home.

(6) The proportion of any rights or interests of either party under a life policy or pension scheme or similar arrangement referable to the period beginning with the marriage and ending with the date of the parties' final separation shall be taken to form part of the matrimonial property subject to any discounts which the court thinks fit to apply (for example, in the case of an unfunded pension scheme, for the chance of receiving less than the quoted benefits).
(7) In subsection (3) above "special circumstances", without prejudice to the generality of the words, may include—

(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property or maintenance;

(b) the source of funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;

(c) any destruction, dissipation or alienation of property by either party;

(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;

(e) the actual or prospective liability for any expenses of valuation or transfer of property in connection with the proceedings.".").

The noble Baroness said: My Lords, this amendment introduces a completely different issue from those with which my noble and learned friend and my noble friend Lord Coleraine have been dealing and I think that it is far too late to embark on big situations, so I do not intend to move the amendment. I shall return to it on Third Reading.
The Lord Chancellor: My Lords, before my noble friend withdraws her amendment, it might be useful for us to have some discussion of these matters. The time is not particularly long but there may be an opportunity for some discussion between now and Third Reading which might be of assistance.
Baroness Young: My Lords, I am extremely grateful to my noble and learned friend for that. I shall be more than happy to talk to him as, I am sure, will my noble friends. As he will know far better than I, this proposal is taken from Scottish legislation and I believe that it works well in Scotland. In seeking leave to withdraw the amendment, I thank my noble and learned friend for offering a talk on the matter.
Lord Meston: My Lords, before the noble Baroness sits down, she is obviously right that this is an important amendment. It raises important topics which rightly should not be discussed at this hour. However, if the result of any discussions between now and Third Reading is that further amendments could be brought forward, I wonder whether that could be done as soon as possible before Third Reading because I know that practitioners are particularly concerned about this amendment and how it, or any variant of it, might work in practice. I hope that if there are to be discussions the outcome is known to all concerned as soon as possible.
[Amendment No. 129AA not moved.]
[Amendment No. 129AB not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 129B:
Page 45, line 37, leave out ("where an order is made under section 22A above,").
The noble and learned Lord said: My Lords, I have spoken to this. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Stay of Proceedings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 130:
Page 47, line 32, leave out ("to be treated as").
The noble and learned Lord said: My Lords, this amendment corrects an error in the definition of divorce proceedings in Schedule 3 to the Bill which deals with a stay of proceedings. The definition provides that divorce proceedings or marital proceedings are to be treated as divorce proceedings by virtue of this Bill. The Bill states that marital proceedings are divorce proceedings in certain circumstances and are not merely to be treated as such, and the definition in Schedule 3 therefore needs to be amended to reflect this. I beg to move.
On Question, amendment agreed to.
Schedule 6 [Amendments of Children Act 1989]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 130A:
Page 57, line 51, at end insert—
("4A. In section 105(1) of the Children Act 1989 (interpretation), after the definition of "domestic premises", insert—
"dwelling-house" includes—

(a) any building or part of a building which is occupied as a dwelling;

(b) any caravan, house-boat or structure which is occupied as a dwelling;

and any yard, garden, garage or outhouse belonging to it and occupied with it;").
The noble and learned Lord said: My Lords, I have spoken to this with Amendment No. 112B. I beg to move.
On Question, amendment agreed to.
Schedule 8 [Minor and Consequential Amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 131:
Page 62, line 34, after ("under") insert ("Part I of").
The noble and learned Lord said: My Lords, in connection with this amendment I speak also to a number of later amendments. The effect of these amendments is to make some small drafting corrections to Schedule 8 in the light of our consideration following Committee stage. Amendment No. 131 is pure drafting. Perhaps I should speak to Amendment No. 132 separately.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 132:
Page 63, line 18, leave out ("months") and insert ("weeks").
The noble and learned Lord said: My Lords, these amendments reduce the length of the statutory period between a decree nisi and decree absolute in nullity proceedings, and proceedings for presumption of death and dissolution of marriage from six months to six weeks. This brings the legislation into line with current practice as the period has actually been fixed at six weeks since 1972. The power of the High Court to reduce the period by order remains, as the noble Lord, Lord Meston, requested on the last occasion. I had rather inclined to take it away, but it is now left as the noble Lord requested. Amendments Nos. 132 and 133 are both designed to deal with this.
On Question,amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 133 to 143:
Page 63, line 50, leave out ("months") and insert ("weeks").
Page 64, line 26, after ("order") insert ("or an interim order for the payment of a lump sum").
Page 64, line 42, at end insert ("or an interim order for the payment of a lump sum)"").
Page 65, line 31, leave out ("and").
Page 65, line 33, at end insert ("and
( ) an application for a divorce order or a petition for a decree of nullity of marriage is outstanding or has been granted in relation to the marriage,".").

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Page 66, line 9, leave out ("sections 23A or 24 of a type of order") and insert ("section 23A of a kind").
Page 66, line 11, at end insert—
("( ) In subsection (4)—

(a) for the words from "for a settlement" to "24(1)(c) or (d)", substitute "referred to in subsection (2)(e)"; and

(b) for paragraphs (a)and(b) substitute "on an application for a divorce order in relation to the marriage";").

Page 66, line 11, at end insert—
("( ) After subsection (4) insert—
"(4A) No variation—

(a) of a financial provision order made under section 22A above, other than an interim order, or

(b) of a property adjustment order made under section 23A above,

shall be made so as to take effect before the making of a divorce order or separation order in relation to the marriage, unless the court is satisfied that that would be just and reasonable in all the circumstances of the case.".").
Page 66, line 13, after ("beginning,") insert (""Subject to subsections (7A) to (7F) below and").
Page 66, line 14, after ("(2)(d)") insert (",(dd)").
Page 66, line 19, at end insert ("and
( ) after "sufficient" insert "(in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below)".
( ) After subsection (7), insert—
("(7A) Subsection (7B) below applies where, after the dissolution of a marriage, the court—

(a) discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage, or

(b) varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.

(7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of—

(a) an order for the payment of a lump sum in favour of a party to the marriage;

(b) one or more property adjustment orders in favour of a party to the marriage;

(c) a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for—

(i) a periodical payments or secured periodical payments order, or

(ii) an extension of the period to which the original order is limited by any variation made by the court.

(7C) An order for the payment of a lump sum made under subsection (7B) above may—

(a) provide for the payment of that sum by instalments of such amount as may be specified in the order; and

(b) require the payment of the instalments to be secured to the satisfaction of the court.

(7D) Subsections (9) and (10) of section 22A above apply where the court makes an order for the payment of a lump sum under subsection (7B) above as they apply where it makes such an order under section 22A above.
(7E) If under subsection (7B) above the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above.
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(7F) Sections 24A and 30 above apply where the court makes a property adjustment order under subsection (7B) above as they apply where it makes such an order under section 23A above.").
Page 66, leave out lines 30 to 33.
Page 66, line 35, leave out ("subsection (5)") and insert ("subsections (6) and (7)").
Page 67, line 1, leave out ("In").
Page 67, line 2, leave out from ("children)") to ("subsection") in line 3 and insert ("is amended as follows.
(2) In").
Page 67, line 4, leave out from second ("order"") to ("subsection") in line 5 and insert—
("(3) In").
Page 67, line 7, at end insert—
("( ) After subsection (2) insert—
"(2A) In considering whether the circumstances are as mentioned in subsection (2)(a), the court shall have particular regard, on the evidence before it, to—

(a) the conduct of the parties in relation to the upbringing of the child;

(b) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by his having regular contact with those who have parental responsibility for him; and

(c) any risk to the child attributable to—

(i) where the person with whom the child will reside is living or proposes to live; or

(ii) any person with whom that person is living or with whom he proposes to live.").

Page 67, line 20, leave out (""education"") and insert (""maintenance assessment"").
Page 67, line 27, at end insert ("; and
(ii) in the case of a financial provision order or order for the payment of a lump sum, as including (except where the context otherwise requires) references to an interim order for the payment of a lump sum under section 22A above."").
Page 67, line 32, leave out ("the").
Page 69, line 17, leave out ("' of the orders"") and insert (""any" where it first occurs").
Page 69, line 17, after ("substitute") insert (""one or more").
Page 69, line 18, leave out ("Matrimonial Causes Act 1973") and insert ("1973 Act").
Page 69, line 30, leave out ("Matrimonial Proceedings Act 1973") and insert ("1973 Act").
The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 133 with Amendment No. 132. I have spoken to Amendments Nos. 133 to 133K with Amendment No. 118. Amendment No. 133M was spoken to with Amendment No. 118. Amendment Nos. 134 to 137 have been spoken to with Amendment No. 88. Amendments Nos. 138 and 138A have already been spoken to with Amendments Nos. 131 and 118. Amendments Nos. 139 to 143 have been spoken to with Amendment No. 131. I beg to move Amendments Nos. 132 to 143 en bloc.
On Question, amendments agreed to.
12.30 a.m.
Baroness Hamwee Baroness Hamwee moved Amendment No. 143A:
Page 72, line 3, at end insert—
("The Income and Corporation Taxes Act 1988 (c. 1)
In section 282 of the Income and Corporation Taxes Act 1988 there is inserted at the end of paragraph (b) "provided that the

143
separation shall not be regarded as likely to be permanent during the period of reflection and consideration provided by section 6 of the Family Law Act 1996.".").
The noble Baroness said: My Lords, I cannot be as swift as the noble and learned Lord but I shall be as swift as I can. At present a husband and wife can take advantage of the exemption for capital gains tax purposes only during the fiscal year in which they separate. That is the result of the definition in the Taxation of Chargeable Gains Act 1992 which in turn refers to Section 282 of the Income and Corporation Taxes Act 1988. That section provides:
"A married woman shall be treated for income tax purposes"—
as I said, that is transferred to capital gains tax purposes—
"as living with her husband unless they are separated under an order of a court…or by deed or separation or"—
and this is the relevant provision—
"they are in fact separated in such circumstances that the separation is likely to be permanent".
Given the Bill's objectives, it has been drawn to my attention that there may be a problem in that the period for reflection and consideration will not work in conjunction with tax considerations in the way in which the Bill is aimed.
If the parties are living separately but reflecting and considering, it would be sad if tax considerations forced them to make over-hasty arrangements for tax saving purposes or to make transfers of property at a time when they should be reflecting upon whether the marriage has broken down.
I understand that this is very much a matter of Inland Revenue practice rather than legislation. I move the amendment to provide that the period of separation shall not be regarded as likely to be permanent during the period of reflection and consideration as a probing amendment in the hope that the noble and learned Lord will be able to assist on the general point. I have realised that somewhere between my attempts to get my brain around the issue, providing a draft and it appearing on the Marshalled List it appears to have extended to income tax as well as capital gains tax. That was not what I intended. I beg to move.
The Lord Chancellor: My Lords, the amendment seeks to extend the married couples' allowance to couples who have separated during the period of reflection and consideration. The married couple's allowance is a tax allowance which goes to married couples who are living together. Broadly, in order to qualify for the allowance for a particular tax year a husband must be "living with his wife" (defined in Section 282 of the Income and Corporation Taxes Act). Couples who are separated by court order, or who are separated,
"in such circumstances that the separation is likely to be permanent"—
a question of fact—do not qualify. Once a couple fail the "living together" test, the allowance continues until the end of that tax year but then ceases. If they are subsequently reconciled and live together again, they can make a fresh claim.
144
I can see that if the couple have not separated during the period of reflection and consideration they will in all probability be entitled to the allowance. But it would not be right to make it automatically so, because we might have a couple who had been living apart for three or four years and who then decided to start divorce proceedings. It would not be right then artificially to say that they should receive the MCA as if they were living together.
The effect of the amendment would be to ensure that married couples who are in a period of "reflection and consideration" would continue to be entitled to the allowance, even if they fail the "living together" test. So physically separated couples (where one partner had left the matrimonial home) would be able to claim the allowance during that time.
One can see that there could be complexities about this as a general rule. The Bill seems to me to be an inappropriate place in which to change the tax allowance. If it were merely a matter of revenue practice, one might make something of it. To treat couples who have actually separated as if they were living together is contrary to the policy of encouraging couples to focus upon the financial consequences of divorce before they take the step of becoming divorced.
I do not believe that this is an appropriate amendment. Perhaps in the light of that explanation, the noble Baroness will consider whether she wishes to persevere with it. I shall be willing to draw the matter to the attention of the revenue authorities for their further consideration because I am sure that they would wish to promote the policy of the Bill so far as they can. Obviously, I cannot guarantee success if that is what the noble Baroness, in consideration of the matter, would like me to do. Perhaps in the light of my explanation she will give me a note to say what she proposes in this connection in the future.
Baroness Hamwee: My Lords, that explanation is extremely helpful. I understand that the Revenue interprets the section differently with regard to different taxes. I shall provide the noble and learned Lord with a note and I am grateful to him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 144 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 145:
Page 73, line 6, after ("6(2)(a)") insert ("and (3)(a)").
On Question, amendment agreed to.
Schedule 9 [Modifications, Saving and Transitional]:
[Amendment No. 146 had been withdrawn from the Marshalled List.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 146A and 146B:
Page 78, line 2, leave out ("4") and insert ("3A").
Page 78, line 12, at end insert—
("3A.—(1) Section 31 of the 1973 Act has effect as amended by this Act in relation to any order under Part II of the 1973 Act made after the coming into force of the amendments.

145
(2) Subsections (7) to (7F) of that section also have effect as amended by this Act in relation to any order made before the coming into force of the amendments.").
On Question, amendments agreed to.
Schedule 10 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 147 to 149:
Page 79, line 42, at end insert—

("1968 c. 63.

The Domestic and Appellate Proceedings

Section 2(1)(b).")

(Restriction of Publicity) Act 1968.
Page 80, line 14, column 3, at end insert ("in the first place where those words occur").
Page 81, line 7, at end insert—

1982 c. 53.

The Administration of Justice Act 1982.

Section 16.

Page 80, line 23, column 3, leave out ("and subsection (4)").
On Question, amendments agreed to.
House adjourned at twenty-four minutes before one o'clock.