Family Law Bill [H.L.]

HL Deb 04 March 1996 vol 570 cc77-146

Further consideration of amendments on Report resumed.

Clause 19 [Interpretation of Part I etc.]:

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 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 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 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 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 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, 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.

Amendment, by leave, withdrawn.

Clause 21 [Legal aid for mediation in family matters]:

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 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 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 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 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 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.

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 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 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 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—

1. (a) in relation to prescribed descriptions of proceedings; or
2. (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 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, 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 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 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 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 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 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 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—

1. (a) provision requiring the mediator to have arrangements designed to ensure—
100
1. (i) that the possibility of reconciliation is kept under review throughout mediation; and
2. (ii) that the parties are encouraged to consider the welfare, wishes and feelings of the children; and
2. (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 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 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 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 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 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.

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 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 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 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 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, 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 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, 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 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 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.

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 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 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, 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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—

1. (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
2. (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 moved Amendment No. 112D: Page 35, leave out lines 12 to 14 and insert— (""dwelling-house" includes (subject to subsection (3A))—

1. (a) any building or part of a building which is occupied as a dwelling,
2. (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 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 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 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;"). 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 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 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 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 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 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.

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 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 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 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.

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 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 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 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" 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 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 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 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,"). On Question, amendments agreed to.

[Amendments Nos. 122B and 122C not moved.]

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 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 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 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—

1. (a) the net value of matrimonial property should be shared fairly between the parties to the marriage;
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2. (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;
3. (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;
4. (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;
5. (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)—

1. (a) during the marriage: or
2. (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—

1. (a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property or maintenance;
2. (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;
3. (c) any destruction, dissipation or alienation of property by either party;
4. (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;
5. (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 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 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 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—

1. (a) any building or part of a building which is occupied as a dwelling;
2. (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 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 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 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,"."). 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)—

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

1. (a) of a financial provision order made under section 22A above, other than an interim order, or
2. (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—

1. (a) discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage, or
2. (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—

1. (a) an order for the payment of a lump sum in favour of a party to the marriage;
2. (b) one or more property adjustment orders in favour of a party to the marriage;
3. (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—
1. (i) a periodical payments or secured periodical payments order, or
2. (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—

1. (a) provide for the payment of that sum by instalments of such amount as may be specified in the order; and
2. (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. (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—

1. (a) the conduct of the parties in relation to the upbringing of the child;
2. (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
3. (c) any risk to the child attributable to—
1. (i) where the person with whom the child will reside is living or proposes to live; or
2. (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 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 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.

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 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 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. (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 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.