SPECIAL CHILDREN'S OFFICER (Hansard, 4 March 1996)

HL Deb 04 March 1996 vol 570 cc22-44 22

§ (".—(1) The Lord Chancellor may make regulations for a special children's officer attached to the family court care centres and divorce hearing centres.

§ (2) The regulations shall make provision for the special children's officer to make appropriate arrangements on behalf of children whose parents—

(a) have made a statement of marital breakdown under this Act; or
(b) have taken or are taking proceedings under Part II of the Children Act 1989.

§ (3) Arrangements mentioned under subsection (2) shall include the provision of information, advice or assistance, including applying to the court for the separate representation of the child.").

§ The noble Baroness said: My Lords, this amendment was moved on the last occasion that we sat. Therefore, I do not move the amendment.

§ [Amendment No. 60 not moved.]

§ 3.45 p.m.

§ Clause 8 [Arrangements for the future]

§ [Amendments Nos. 60A to 62 not moved.]

§ Baroness David moved Amendment No. 63: Page 5, line 28, at end insert— ("( ) Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned.").

§ The noble Baroness said: My Lords, on behalf of my noble friend Lord Archer of Sandwell I should like to move Amendment No. 63 as an amendment to Clause 8. The amendment inserts at the end of the clause subsection (6), which reads: 23 Where a divorce order is granted on the basis that the provisions of subsection (2) or Schedule 1 are satisfied and it is subsequently shown that those provisions were not in fact satisfied this shall not operate to invalidate the divorce order concerned".

§ This is a probing amendment which I believe raises a new point. It is unclear from the Bill what the effect on a divorce order will be if someone falsely declares that arrangements have been made for the future, or falsely states that he or she comes within the exceptions provided for in Schedule 1. The amendment is designed to clarify whether the Government intend that false declarations will make any subsequent divorce bogus or will have no effect upon a subsequent divorce order. I hope that the noble and learned Lord will be able to enlighten us on the point. I beg to move.

§ The Lord Chancellor
My Lords, it is a fundamental procedural requirement of the Bill that evidence of arrangements must be produced to the court in order to satisfy the requirements of Clause 8, unless one of the exemptions in Schedule 1 applies. If a divorce order is made and it is subsequently found that the requirements of Clause 8 have not been met, that is to say, evidence of arrangements has not been put before the court, that order should be void.
I have carefully considered this amendment. Although I believe that if faced with a case where Clause 8 has not been complied with it is likely that a court will declare an order void, nevertheless I believe that this should be made clear on the face of the Bill. I will bring forward a Government amendment to reflect the intention that a divorce or separation order that is obtained without the provisions of Clause 8 and Schedule 1 having been complied with shall be void, but no person shall be entitled to challenge the validity of the order on the ground that the information contained in the declarations mentioned in Clause 8(2)(c) and (d) is incorrect. The courts would still be able to pronounce an order void or voidable in other circumstances according to general principles, for example complete lack of service. I hope that I have explained what I have it in mind to do in answer to Amendment No. 63. We may be able to deal with that by Third Reading.

§ Baroness David
My Lords, I am extremely grateful to the noble and learned Lord for his response. I feel that putting down the amendment has been worthwhile. I look forward to an amendment from the noble and learned Lord, hopefully at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Baroness David moved Amendment No. 64: Leave out Clause 8.

§ The noble Baroness said: My Lords, it may be that the last response will carry some weight also in relation to Amendment No. 64. However, I believe that I should move this amendment in order to find out the response of the noble and learned Lord. Clause 8 provides, in conjunction with Schedule 1, that arrangements for the future must be made during the period for consideration and reflection, subject to limited exceptions. This clause 24 represents a change from the Law Commission's original proposals and should be removed for the following reasons. First, it will place a considerable bargaining chip in the hands of a recalcitrant or spiteful spouse. He or she will be able to insist that certain arrangements are made as the price of granting the other party a divorce.

§ Secondly, a number of problems exist with the exceptions to the rules as currently drafted as they are unclear and incomplete. The net effect is that uncertainty will be increased. That is likely to lead to increased litigation. Examples of possible difficulties are that the provisions in Clause 8(2)(c) and (d), which relate to the financial arrangements, as supplemented by Schedule 1, may lead to fraud. Thirdly, these proposals are untested. The proposed provisions are not duplicated in other common law jurisdictions where a system of no fault exists. In Australia, for instance, arrangements for finance and children are dealt with entirely separate from the divorce itself. I should say that I am speaking also to Amendment No. 117 which is consequential upon the removal of Clause 8. I beg to move.

§ The Lord Chancellor
My Lords, the provisions of Clause 8 and the schedule are essential to what is in contemplation here. It is vital that before a divorce is granted the parties should face up to the responsibilities that have arisen in their marriage in such a way as to make all the necessary provisions for the future. That does not happen at the moment. So far as I know, it has not been provided for in other jurisdictions at present, as the noble Baroness said. I cannot think of a more practical way of facing up to the responsibilities of marriage than this way.
To have the divorce first and to leave over these matters is to leave over the essential dealing with the responsibilities of the marriage, which are fundamental. For example, it is clear that if someone is going to undertake new relationships and new responsibilities, it is important that, so far as possible, before that is done that person should know the nature of the commitments they have arising out of the earlier marriage.
It is sometimes said against me by those who are not minded to accept the approach of the Bill that I am seeking in some way to depart from forcing people so far as possible to face up to their responsibilities before a marriage is dissolved. This is the provision that does that. It is an important and practical one.
The noble and learned Lord, Lord Archer of Sandwell, referred on the last occasion to Professor Cretney. Professor Cretney has indicated to me that he regards this as an important improvement and modification to what the Law Commission proposed. It is sometimes said that all of these proposals are the Law Commission's proposals. Of course they are not. In this respect there is a most important departure from them. It is necessary to have this. It will require a different approach to divorce from that which is available under the present system.
I am of course always willing to consider whether improvements to the drafting of these provisions can be made, but on the principle of the provisions, as challenged in Amendments Nos. 64 and 67, I hope that 25 your Lordships will feel that the provisions are vital and an important and desirable part of the proposals contained in the Bill.

§ Earl Russell
My Lords, before the noble and learned Lord sits down, I wonder whether he can clarify a point raised by the noble Baroness about what happens if a party wilfully refuses to agree to any financial arrangement.

§ The Lord Chancellor
My Lords, that point is dealt with in the schedule of exceptions. The court is pretty astute and can deal with such a situation. Schedule 1 deals with it. That is why I said that drafting matters are different, but in cases where that has happened and the court thinks that that is what is happening, the court has power to deal with the matter. There is always a difficulty about such problems. The only way to deal with them is to leave them to the court to handle in the light of all the circumstances that obtain.

§ Baroness David
My Lords, I thank the noble and learned Lord for his full and positive response which was not entirely unexpected. I see the importance that he attaches to the clause. I noted also that he said that he is always willing to consider drafting improvements. I think I should discuss this with my noble and learned friend Lord Archer of Sandwell. It was his amendment that I moved. In the light of his reading of the noble and learned Lord's reply he might want to suggest drafting improvements and bring the matter back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Clause 9 [Hardship: orders preventing divorce]:

§ The Lord Chancellor moved Amendment No. 65: Page 5, line 35, leave out ("grave") and insert ("substantial").

§ The noble and learned Lord said: My Lords, I should like to speak also to Amendments Nos. 66, 67, 68, 69 and 70. As your Lordships will appreciate, in Committee there was a full and valuable debate about the provisions and workings of the hardship bar on divorce. I intimated in Committee that I wished to consider in more detail the points made and I have now tabled these amendments to address some of the concerns which were raised.

§ One of the main concerns which was expressed in Committee centred around the rarity with which the hardship bar is invoked. The view was expressed, in particular by the noble Lord, Lord Irvine of Lairg, and my noble and learned friend Lord Simon of Glaisdale, that the bar was currently something of a "dead letter", and amendments were tabled to test whether the language of the clause could be amended to make its application less rigid.

§ Your Lordships will recall that the bar provisions at the moment apply to five-year separation divorces only, which form a small proportion of the total number, the vast bulk presently being based on fault grounds with no bar applicable to them. The Bill extends the bar provisions to all divorces. I share the concerns that the hardship bar should be a meaningful provision. I have 26 therefore decided to amend the clause in the direction suggested in Committee by replacing the word "grave" in relation to the hardship experienced on dissolution of the marriage with the word "substantial", which is a less strict test.

§ In terms of the relevance of the hardship bar, I have mentioned that it is intended to apply to all divorces. Your Lordships will be aware that it is not just financial hardship that is in question but other hardships as well. People have sometimes not understood that fully. It is a bar that applies to substantial financial or other hardship.

§ The other amendments which I propose to make relate to children. This again arises out of the Committee stage. The welfare of children in divorce was referred to in Committee in the context of the hardship bar, in particular by my noble friends Lady Young and Lady Elles and the noble Lord, Lord Irvine of Lairg. Although they mentioned it in particular, I am sure that they are concerns which we all share. In the light of those considerations and the remark of my noble friend Lord Boyd-Carpenter when the question of children was being discussed, I have decided to propose these amendments to extend the provisions of the bar on divorce to encompass the children of the family as well as the parties to the marriage. In that context, I would emphasise that in all cases in order for the hardship to be applied the court must be satisfied that the actual dissolution of the marriage will cause substantial financial or other hardship to a child or children.

§ I should also emphasise that an application for an order preventing divorce can be applied for only by a party to the marriage, even if this application is asserting that the dissolution will result in hardship to children. In my view, it would place an intolerable burden on children to provide that they themselves might be involved in making such an application, as we discussed earlier. They could easily be put under pressure by one or other parent to apply for such an order—indeed, by other well-meaning persons—without any regard to the enormous responsibility that that would place on such a child. We cannot have a situation in which we pitch child against parent in a battle about whether the marriage should be legally dissolved.

§ Amendments Nos. 67 and 70 are intended simply to emphasise that where there are children in the family their interests must be taken into account when the court is considering all the circumstances of the case in order to determine whether it is wrong to dissolve the marriage. I beg to move.

§ 4 p.m.

§ Baroness Young
My Lords, I thank the noble and learned Lord the Lord Chancellor for the amendments that he has tabled to Clause 9. They are in response to points raised in Committee and I am glad to see them. I am sure that he was completely misinterpreted in his comments relating to Amendments Nos. 67 and 70 concerning children and that there was never a suggestion that children should appear in court. I support the noble and learned Lord in what he said.
However, I should be grateful if he would clarify a major issue of principle. He said that one of the criticisms in respect of what was originally Clause 10, 27 but is now Clause 9, was that the hardship bar had never been used or, as I understand it, had been used on only one occasion. I also understood him to say that it applied only to five-year separations and that under the Bill it would apply to all divorces. I do not understand how the same principle can be seen to work in respect of all divorces when it failed to work in respect of five-year divorces. I understand that the issue was not a question of time but the interpretation of the law.
The noble and learned Lord mentioned Dr. Cretney from whom I have received a letter on this matter. As there is a legal point which I am not sure I fully understand I hope that the noble and learned Lord will explain it to me and that he will forgive me if I quote from the letter. Dr. Cretney refers to the fact that the hardship bar is designed to help in grave financial or other hardship and I take the point that that has been amended. He states: These words appear in the existing law; but are rarely invoked—largely because the courts have consistently held that hardship must result from divorce (i.e. the ending of the legal status of marriage) rather than from the breakdown of the relationship and the circumstances which led to it. There is no reported case in which a defence based on hardship other than financial hardship has been successful". Dr. Cretney goes on to state: The 1969 concordat between the Law Commission and the Archbishop of Canterbury's group (which led to the enactment of the present divorce law)" — that is, the 1969 law— envisaged that the court would be required to refuse divorce if satisfied that, having regard to the conduct and interests of the parties and the interests of the children, it would be wrong to end the marriage; but the terms of the legislation are much narrower. The court has no power under the existing law to refuse a divorce merely because the applicant has been guilty of outrageous behaviour; and it will have no such power under the Bill currently before the House of Lords". I see that there is a distinction between hardship which must result from divorce and hardship resulting from the breakdown of the relationship. However, as someone who is not a lawyer that seems a narrow point of law. If that is the point of law on which it has not been possible to operate the hardship bar—and it is a most serious point—I would be grateful if my noble and learned friend the Lord Chancellor could explain the difficulty and assure me and the House that Clause 9 will not suffer from the defects from which a similar clause suffered in the preceding Bill.

§ Lord Northbourne
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor, as I am sure is every Member of your Lordships' House and the organisations concerned with the welfare of children, for the introduction of the amendments, which serve an important purpose in improving the Bill.

§ Lord Simon of Glaisdale
My Lords, when the 1969 Act was before your Lordships strong objections were voiced to the requirement that in order to halt a divorce after five years' separation a wife against whom nothing substantial could be alleged had to show grave hardship before she was cast off to her detriment. That anxiety was voiced by Lord Hodson, the foremost matrimonial 28 judge of the time, and by Lady Summers who was ever vigilant of the interests of married women. They asked: why should it be grave hardship? Indeed, they asked: why should she be required to show any hardship, but in any case why grave hardship?
As my noble and learned friend has explained, that bar in the 1969 Act, which was consolidated in 1973, was relevant only to divorce after five years' separation; the divorce by repudiation. The issue became much more serious when one found that the requirement to show grave hardship appeared in this Bill; in other words, where there could be repudiation of a spouse against whom nothing substantial could be alleged after one year's notice. Those voices, those considerations and those concerns were raised in Committee and my noble and learned friend has gone a long way towards meeting them.
I have only one question about the substitution of the word "substantial" for the word "grave". That is on the ground that the law does not generally take any account of insubstantial consideration. It is always expressed in a Latin tag, which I shall not repeat because I know that lawyers' pronunciation of Latin is highly offensive to your Lordships. The fact remains that the law does not regard taking any account of insubstantial consideration. It seems to me that the court might be alerted, therefore, that something more is required by the use of the word "substantial". Why cannot one simply leave it out and provide for only hardship? That argument relates to Amendments Nos. 65 and 68.
As regards Amendments Nos. 66, 67, 69 and 70, it remains only to express appreciation for the way in which my noble and learned friend has met our views.

§ Baroness Elles
My Lords, if I may continue for a moment with what I was going to say earlier, I understand what my noble and learned friend has said about the interests of the children, but I would like to ask him a couple of questions.
When we were discussing Amendment No. 9 which brought in criteria from the Children Act, it was mentioned that this might have been considered within the terms of Clause 9. Whether that aspect is covered by the interests of the children I am not sure. What criteria are the court to use when assessing the interests of the child? Will Section 1 of the Children Act automatically apply? As I understand it, the Children Act works only where there are disputes between the parents or where, as set out in Section 1: a court determines any question with respect to … the upbringing of a child; … or the administration of a child's property or the application of any income arising from it". Would the interests of the child, therefore, under Clause 9 be confined to those aspects or would there be a general view taken of the interests of the child? If so, what criteria would be used? Could my Amendment No. 9, discussed in Committee, be taken into consideration?
Obviously my noble and learned friend cannot give me an answer straightaway but I would be grateful if he would consider this. At the moment there is no definition of what the interests of the child are.
29 Secondly, could we have some slight explanation of what my noble and learned friend considers would cover hardship? There will probably be quite a lot of variation in what a court or a judge might decide would include hardship. Would it include where a child had to be removed from the home in which he or she was living and the mother and the child had to apply for a council flat after having lived in a rather luxurious house? Would that change of style and general quality of life be considered as hardship? Would that be a ground for preventing a divorce being granted; or does my noble and learned friend intend to leave a great deal of latitude to the court in defining both the interests of the child and the hardship? At the moment, although there are very good intentions, I wonder how in fact it will work out.

§ Lord Phillimore
My Lords, would the noble and learned Lord indicate how he proposes that hardship to a child of a family be established to the satisfaction of any court? The noble Baroness, Lady Young, referred to the fact that it is undesirable—and I am sure we all agree—that a child should attend court and give evidence. But even the intervention of a third party such as a welfare officer could cause considerable distress to a child. Children are quick to perceive that they may be being asked to decide matters. That occurs, of course, in residence and contact matters where a welfare officer intervenes. I suggest that that is to be avoided, and I would welcome some indication as to how this will be avoided.

§ Lord Habgood
My Lords, I would welcome a little clarification from the noble and learned Lord about Clause 9(2)(b): "that it would be wrong, in all the circumstances (including the conduct of the parties), for the marriage to be dissolved". In our earlier discussions we said that this was the area of the Bill in which the concept of fault might come back into the arrangements for divorce. It is a little curious to discuss this entirely under the heading of hardship. There are two issues here—hardship and justice—and Subsection (2)(b) is basically about justice. Is it envisaged that a court might decide that arrangements made under Clause 8 of the Bill, although agreed by the parties, seem manifestly unfair in the light of the conduct of the parties, and that one could build into the Bill at this point some safeguard against the manipulation of one of the parties by the other?

§ 4.15 p.m.

§ The Lord Chancellor
My Lords, let me take these matters in order. My noble friend Lady Young asked about the reason for the previous bar not working. Of course, it did work to some extent and it was used in a few cases—for example, when there was a loss of a pension which was considered a grave financial hardship. It was also used in practice as affecting the course of negotiations. Some would call it a bargaining factor. Your Lordships will remember that the noble Lord, Lord Mishcon, in Committee spoke of the existence of a bar as something that could influence 30 parties even though they had not got to the stage of invoking the bar in connection with the settlement arrangements between the parties.
This is a convenient point to answer the question raised by the noble Lord, Lord Habgood. The question of conduct is relevant to the settlement of financial matters between the parties under the rules which presently exist and which, so far as this is concerned, I am not proposing to change; namely, that where there is conduct which it would be inequitable to leave out of account, that should be taken into account in considering the nature of the financial arrangements between the parties following a divorce. So that is fully taken account of in the present arrangements, in my submission.
My next point, in amplification and answer to my noble friend Lady Young, is this: the court has no power to prevent parties separating. If people decide to live apart there is nothing the court can do about it, and therefore hardship arising from that is not something that the court can be expected to control. The hardship that the court can deal with is hardship resulting from something that is within the court's power; namely, the power to make an order dissolving the marriage. I have sought to make that as ample as it can be. The word "hardship" is a very general word which would cover a variety of circumstances; and I have put in the word "substantial" for the reason that my noble and learned friend Lord Simon of Glaisdale gave—that this is a Bill which I expect, when it becomes an Act, to be read by ordinary people, and we have tried to couch it in ordinary language.
My noble and learned friend was kind enough to say at an earlier stage that the Bill was well drafted. This is one of the objectives—that it should be capable of being read and easily understood by those who are not familiar with the law. It may well be that an intelligent lay person may not be aware of the rule to which my noble and learned friend referred, and therefore I felt it right to put in the word "substantial" to indicate to a lay person that he or she would have to be able to identify something on which the court could find as occasioning hardship.
The reason that this is a more ample provision than the previous one is that the word "grave" indicates a higher standard of hardship. I propose to reduce it to as low a standard as it can go to consistent with the point of principle that my noble and learned friend Lord Simon of Glaisdale has mentioned.
My noble friend Lord Phillimore asked about the involvement of children. The hardship that this provision refers to is objective hardship of some kind. It is not just what the children feel about it but is something in the nature of objective hardship. There is a case in the books which illustrates in one particular example how this might arise. There was a case of a child in the books, but that child was older than would be classified as a child under this Bill. However, I take the example of a child who had a particular disability. The family home in which he lived was adapted in order that that disability could be catered for. When the husband and wife split up, they could not afford to keep 31 that home. As very often happens, the total available to the family was less than was available for the house. Therefore, they had to sell the house as a consequence of the break-up of the marriage. It would take some time to adapt another house for the purposes of the child's disability.
That is an example of an objective type of hardship to a child of the marriage occasioned by the granting of a divorce at a particular time. Therefore, under this amendment, the divorce may well be postponed until new arrangements have been made, if it is possible at all to make them.
Of course, it is important that all the hardship which that provision deals with must be hardship occasioned by the order which the court may or may not make. Sadly, no one—courts nor anyone else—can remove the hardship which is caused by the breakdown of a marriage.
Those are the main matters which were raised. I believe strongly that the proper approach to this matter is the objective approach in relation to the hardship criterion. The hardship criterion is a necessary condition for this clause to be involved. Once that criterion is satisfied, the court takes account of all the factors mentioned in the later subsection.
I take account of what my noble friend Lady Elles says and I think that it would be advisable to leave this matter very much in the hands of the courts—and it is very difficult for us to envisage all circumstances—as to what they consider to be the interests of the child affected. As my noble friend said, the Children Act is designed specifically to deal with matters affecting children; for example, where they should stay, with whom they should have contact, to which schools they should go, and so on. The Children Act is an elaborate and satisfactory framework for dealing with that.
In this regard, I believe that the word "interests" is a good word to describe that to which the court should have regard in relation to children. I feel fairly strongly that it would be inadvisable for us to try to define it further. It leaves the matter open to the courts to do justice in the particular circumstances which may come before them. Therefore, I hope that your Lordships will feel that this is a good step forward and that it would be wise to leave the matter as open as possible.

§ Lord Renton
My Lords, before my noble and learned friend sits down, perhaps I may mention the fact that he has drawn attention to a very important drafting principle which we too often neglect. He has said, and rightly said, that this matter should be stated in terms of the principle to be applied by the courts. The alternative is to spell out in detail all the kinds of hypothetical circumstances which lengthen and ruin much of our legislation.

§ Baroness Young
My Lords, before my noble and learned friend sits down, perhaps he will clarify still further the very important point about how the clause would be interpreted so that we can be quite sure that it would operate.
32 If I recall it correctly, he said that it had been used in a number of cases in the past and, if a couple had decided to separate, the court could not make a judgment on that because that is something which is freely entered into. However, I have reread Dr. Cretney's letter and that is not the point which he is making. I do not wish to take up the time of the House but I would find it extremely helpful if my noble and learned friend could write to me on this matter. I am extremely concerned. I believe that this amendment is a great improvement to the Bill but I wish to make quite sure that it will be operative when the Bill becomes law.

§ The Lord Chancellor
My Lords, assuming that the Bill becomes law with this amendment in it, as I certainly hope it will, it will become operative in the sense that the courts will have to apply it if the jurisdiction of the court is invoked in any particular case.
As I understood the letter from Dr. Cretney which my noble friend read, he makes the point that the hardship must be related to the order dissolving the marriage. That is a factor which limits the application of its jurisdiction. But that is an inevitable limitation on the jurisdiction. I have lowered the standard of hardship required from "grave" to "substantial", which, in the circumstances, is as low as it can go. It is then left to the courts to decide whether there is hardship in any particular case and whether or not an order should be made in the light of the circumstances referred to in the later part of the clause.
I believe that that is all that I can say in dealing with the letter from Dr. Cretney and that I have dealt with the point he makes, which I understand entirely.
I am extremely grateful to my noble friend Lord Renton, who is such an authority on the matter of statutory construction, for the comfort of his support. I agree that it is wise not to attempt to have too much detailed definition of such phrases. Apart from cluttering the statute book, it may well prevent the courts from doing justice in a particular case where otherwise they may be able to do so.

§ Baroness Faithfull
My Lords, before my noble and learned friend sits down, on several occasions he has made cross-references to the Children Act 1989. It may be helpful to those who must administer the Act to have those cross references to that Act in this Bill. That Act is extremely clear in relation to some of the points that have been raised this afternoon.

§ The Lord Chancellor
My Lords, it is extremely important that it is recognised generally that the Children Act is a comprehensive framework which deals with matters concerning the upbringing of children. That applies where the parents are divorced or whatever is the situation. To my mind, it is extremely important that that is preserved.
Of course, there is a link with the Children Act in the provisions of the modified Clause 41 with which we shall deal later. Earlier today, I was looking with my colleagues who are helping me at the possibility of 33 having a much earlier reference to the Children Act in this Bill. This Bill is not intended to deal exhaustively with the interests of children. On the contrary, I wish to point to the fact that the Children Act is a very useful and practical framework which deals with that. I am grateful to my noble friend for that suggestion and I shall try to pursue it. I cannot say for certain that I shall be successful, but I hope that I shall be.
On Question, amendment agreed to.

§ The Lord Chancellor moved Amendments Nos. 66 and 67: Page 5, line 36, after ("party") insert ("or to a child of the family"). Page 5, line 38, after ("parties") insert ("and the interests of any child of the family").

§ The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 65. I beg to move.

§ On Question, amendments agreed to.

§ [Amendment No. 67A not moved.]

§ The Lord Chancellor moved Amendments Nos. 68 to 70: Page 5, line 42, leave out ("grave") and insert ("substantial"). Page 5, line 43, at end insert ("or to a child of the family"). Page 6, line 2, after ("parties") insert ("and the interests of any child of the family").

§ The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 65. I beg to move.

§ On Question, amendments agreed to.

§ [Amendment No. 70A not moved.]

§ Clause 10 [Lord Chancellor's rules]:

§ The Lord Chancellor moved Amendments Nos. 71 and 72: Page 6, line 14, at end insert— ("( ) requiring a copy of a statement made by one party to be served by the court on the other party; ( ) as to circumstances in which such service may be dispensed with or may be effected otherwise than by delivery to the party;"). Page 6, leave out lines 35 and 36.

§ The noble and learned Lord said: My Lords, I spoke to these amendments when I moved Amendment No. 30. I beg to move.

§ On Question, amendments agreed to.

§ 4.30 p.m.

§ The Lord Bishop of Oxford moved Amendment No. 73: Page 6, line 37, after ("any") insert ("marriage").

§ The right reverend Prelate said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 76 and 78 which are tabled in my name. They relate to Clause 10(2) which deals with rules that may be made by the Lord Chancellor requiring a legal representative to discuss certain matters with, a party to a marriage", 34 or to make various pieces of information available to that party.

§ Paragraph (c) of the clause refers to: whether he has given that party names and addresses of persons qualified to help…to effect a reconciliation". My question is quite a simple one: namely, what kind of people are qualified to effect a reconciliation? Of course, along with other noble Lords, I very much hope that we can reconcile as many people as possible. But those who are actually qualified to help bring about a reconciliation—that is, if a reconciliation is at all possible—are marriage counsellors. I can certainly see the need for people to be given the names and addresses of qualified marriage counsellors and also of qualified mediators. I shall be glad to hear from the noble and learned Lord the Lord Chancellor what he has in mind when he refers to people who might be "qualified to help" in such a reconciliation. That is the purpose of Amendment No. 76.

§ Amendments Nos. 73 and 78 refer to Clause 10(2).At present, paragraph (a)(iii) refers to, the availability to the parties of any counselling facilities". Amendment No. 73 proposes the insertion of the word "marriage" before "counselling". Similarly, Amendment No. 78 which refers to paragraph (c)(iii) also requires the insertion of the word "marriage" before "counselling".

§ There is an important matter of principle involved. It is, quite simply, whether people should be told about the availability of counsellors in general, or whether they should be told about the availability of people who are trained and qualified to offer marriage counselling. I yield to no one in my respect for, and realisation of, the need for counsellors of all kinds; but this Bill deals with divorce and trained and qualified marriage counsellors, as well as trained and qualified mediators, have a special role to play.

§ The noble and learned Lord the Lord Chancellor gave a very substantial address recently to Relate in which he expressed his difficulty in accepting the amendments. For example, he put forward the possible case where the friend of a husband dies and the husband goes through a very deep depression as a result of his bereavement. That might drastically affect the marriage and may lead to a lack of communication, and so on. In such a situation, what a person really needs is a bereavement counsellor rather than a marriage counsellor. However, perhaps I may quote from the letter that Dr. Jack Dominian wrote to the noble and learned Lord. Dr. Dominian is a psychiatrist and the country's leading specialist on marriage and on how marriages can be kept together, enriched and saved. He thought that the example of the noble and learned Lord was especially good. In the letter he says: One of the classic triggering factors in marital breakdown is bereavement and so this example is highly relevant. You suggest that bereavement counselling may be what this man needs, 'by being able to tackle the source of a depression, the ability to communicate can be restored to the couple'. I would say that the chances of reconciling such a couple would be far higher if they saw a marriage counsellor than a bereavement councillor. A trained marriage counsellor should be able to tackle the husband's depression and his 35 wife's response to it; in such situations, while the individual spouse has a specific problem the marriage clearly needs some attention too. The bereavement counsellor would be focusing on the individual's needs alone and not those of the couple. For me this is the central concern when a marriage is in trouble—what is the most appropriate help for the marriage? A marriage counsellor focuses on the marital relationship and attempts to find the minimum needs of both partners, to make them conscious, to remove obstacles to their realisation and to help the couple to fulfil those needs. A counsellor will focus on the individual's needs which of course to some extent are compromised in a marital partnership. Some individual counselling may actually reduce the opportunities for reconciliation".

§ There is a very specific need for marriage counsellors at that point. I believe that we will take away from the distinctive contribution which marriage counsellors can make if they are, so to speak, simply subsumed within the general category of counsellors. I ask the noble and learned Lord the Lord Chancellor, to reconsider that point. I beg to move.

§ Baroness Faithfull
My Lords, I have one comment to make. The British Association for Counselling has an accreditation programme for counsellors covering different areas. Perhaps we should discuss the matter with the association.

§ Baroness Gardner of Parkes
My Lords, I should like to follow the point made by the right reverend Prelate. He referred to "trained and qualified mediators". I should like to know exactly who those people will be. We had a meeting in this place with the Law Society during which we asked that same question. We were told about a college of mediators. When we asked who had set up the college, where it was and what were the necessary qualifications, the answers we received were all extremely vague. We were told that there were about 700 people involved in the work at present; indeed, it seems to be a great growth industry. However, no one really knew what qualifications were required. I wonder whether any part of the Bill sets out what a mediator is, in particular a "trained and qualified mediator".

§ Baroness David
My Lords, I had intended to say a few words, but I believe the noble Baroness, Lady Faithfull, is about to cover what I would have said.

§ Baroness Faithfull
My Lords, I should point out to the House that Amendment No. 96A deals with the whole question of accreditation as regards training, as will Amendment No. 94 tabled in the name of the noble Lord, Lord Habgood.

§ The Lord Chancellor
My Lords, I should say, first, that I am most grateful to the right reverend Prelate for having paid some attention to my address to Relate. It is always a thrill when something one has said is read by someone who was not there, especially if that person quotes accurately. I am also grateful to Dr. Jack Dominian for his contribution in which he, as it were, puts me right on the matter. I would certainly wish to try to give effect to his suggestion.
I wish to try to ensure that marriage counsellors are available, but I believe that there should not be too much restriction in that respect. Indeed, the variety of services 36 is something that I would not wish to restrict at present. I hope that the Bill will regulate the law for a considerable time to come. I cannot envisage—and I doubt whether your Lordships can—every possible development and innovation that there may be in improving services. Dr. Jack Dominian is a leading exponent of the need to innovate and develop services to help.
I certainly wish to take account of those considerations in developing the current draft of the rules. One way to do so is, I believe, to include a statement in the nature of the information that must be available that would at least be exemplary of what might be available. Of course, that might not include all that is available, but the information would at least reflect those considerations. I believe that I will probably be able to do that without too much difficulty.
One of the purposes behind Amendments Nos. 72, 74, 77 and 79 is to respond to the concerns expressed by the right reverend Prelate in Committee. The amendments reorder the provisions of Clause 10(2) to give greater priority to the references to "counselling" within the clause. I believe that I can make it possible to accommodate the concerns expressed by the right reverend Prelate and also those expressed by Dr. Dominian in this letter by reordering the wording without damaging what I want to keep; namely, considerable flexibility.
My noble friend Lady Gardner of Parkes wishes to know about mediators. There are a number of trained mediators who have come together to bring forward the standards of the profession and it may be that we will have a better opportunity of discussing that under one of the later amendments which my noble friend Lady Faithfull has proposed. My noble friend Lady Gardner of Parkes would have learned from the Law Society that there are a number of trained mediators who are members of the Law Society and I am sure that at the meeting she attended she would have been assured of just what high quality they are. I have no doubt that others will seek to emulate them, perhaps from a slightly different professional base. In the light of the assurance that I have given to the right reverend Prelate the Bishop of Oxford I hope he will feel that he need not press his amendment.

§ The Lord Bishop of Oxford
My Lords, I beg leave to withdraw the amendment standing in my name.
Amendment, by leave, withdrawn.

§ The Lord Chancellor moved Amendment No. 74: Page 6, line 38, at end insert ("or ( ) the opportunities for the parties to take part in mediation;").

§ The noble and learned Lord said: My Lords, this is an amendment which, as I have explained, is an attempt to reorder the provisions of Clause 10(2) to give greater priority to the references to counselling within that clause and is brought forward in response to the right reverend Prelate's concern. I beg to move.

§ On Question, amendment agreed to.

§ Baroness David had given notice of her intention to move Amendment No. 75: Page 6, line 38, at end insert ("or ( ) the need for the parties to have regard to the welfare of any children of the family and to have regard to the ascertainable views of such children (considered in the light of their age and understanding when making arrangements for their future;").

§ The noble Baroness said: My Lords, I spoke to this amendment last Thursday and the noble and learned Lord was kind enough to say that he would take it away and would probably bring back an amendment himself at Third Reading to deal with the point. Therefore, I am not moving this amendment.

§ [Amendment No. 75 not moved.]

§ [Amendment No. 76 not moved.]

§ The Lord Chancellor moved Amendment No. 77: Page 6, leave out line 43.

§ The noble and learned Lord said: My Lords, I spoke to this amendment earlier. It is one of the amendments brought forward to meet the right reverend Prelate's concerns. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 78 not moved.]

§ The Lord Chancellor moved Amendment No. 79: Page 6, line 44, at end insert ("or ( ) in connection with mediation.").

§ The noble and learned Lord said: My Lords, this amendment is in the same connection. I beg to move.

§ On Question, amendment agreed to.

§ 4.45 p.m.

§ Baroness David moved Amendment No. 80: Page 6, line 44, at end insert— ("( ) The Lord Chancellor may make rules requiring a person who is or has been a marriage guidance counsellor assisting one or both of the parties to the marriage with respect to which a statement has been made, or is proposed to be made, to certify at such time or times as may be specified—

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

(i) the possibility of reconciliation;
(ii) the opportunities for the parties to take part in mediation; and
(iii) the opportunities for the parties to receive legal advice and representation;

(b) which, if any, of those matters he and the party or parties have discussed; and
(c) whether he has given the party or parties the names and addresses of persons qualified to help—

(i) in connection with mediation; or
(ii) by providing legal advice and representation.

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

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

(i) the possibility of reconciliation;
(ii) the availability to the parties of any counselling facilities; and
(iii) the opportunities for the parties to receive legal advice and representation;

(b) which, if any, of those matters he and the party or parties have discussed; and
(c) whether he has given the party or parties the names and addresses of persons qualified to help—

(i) to effect a reconciliation;
(ii) by counselling; or
(iii) by providing legal advice and representation.").

§ The noble Baroness said: My Lords, I move this amendment on behalf of my noble friend Lord Archer of Sandwell. This is a long amendment, but it can be a very short explanation. It will extend the Lord Chancellor's power to make regulations specifying the type of requirements, as appears in subsection (2) of Clause 10. It places a requirement upon solicitors concerning information to be given to clients, so that the requirements will also apply to marriage guidance counsellors and mediators. It is important that all service providers should be under similar obligations to provide their clients with information. I beg to move.

§ The Lord Chancellor
My Lords, I am very appreciative of the principle behind Amendment No. 80 which seeks to apply both to marriage guidance counsellors and mediators the Lord Chancellor's power to make rules in relation to information which legal representatives may be required to give to the court.
I am not sure that this is a wise provision for marriage counsellors. I believe that it suggests that marriage counsellors might stray more into the area of information on divorce, separation, and so called divorce counselling, than I believe the House might wish to see on the face of the Bill which has, as one of its stated general principles, the wish to support the institution of marriage. Your Lordships may have heard the suggestion that some organisations which are concerned principally with marriage guidance counselling fall all too easily into the idea of divorce counselling. I am not saying for one single moment that these allegations are justified, but I certainly would not wish to do anything to encourage them.
I believe that when somebody goes for guidance and help in relation to their marriage, on the whole it is not right for the initiative of suggesting divorce to be taken by the marriage guidance counsellor. It is quite right that marriage counsellors should discuss the possibility of reconciliation with the parties. I do not, however, see that their role involves discussing the possibility of legal representation or mediation with couples. If marriage counselling is not successful and one or both of the parties decides to proceed with divorce, they will be able to get information on all the services available to help them at the information meeting.
I am also concerned especially that the low take up of marriage support services could suggest that couples may be put off counselling if they feel that their counsellor is somehow involved in reporting their discussions to the court. I know that is not the principle behind this amendment, but it is one of the 39 risks that one must take into account in making such a provision. This might make marriage support services seem more like agents of the divorce court rather than organisations whose focus will be on looking at how the marriage can be sustained.
In relation to mediation, it is of course important that mediators, too, have in place arrangements to ensure that important matters such as reconciliation are kept under review during the course of mediation. It is to this end that I have tabled Amendment No. 99A, which is intended to ensure that mediators are in a position to practise in accordance with the principles of the Bill. Your Lordships see that that provides that the Legal Aid Board may not contract with mediators unless they have arrangements in place to ensure that reconciliation is kept under review throughout mediation and that parents are encouraged to consider the welfare, wishes and feelings of the children. I believe that is a good way to indicate the sort of principles we expect mediators to follow.
I should like to consider whether it might be appropriate to add a further provision to Amendment No. 99A to provide that mediators should have in place arrangements designed to ensure that parties are informed about the availability of independent legal advice. I am minded to bring forward an amendment to that effect at Third Reading. That is, mediators should be able to tell the parties that if they want independent legal advice on any matter, then, of course, they can consider that.
On reflection, it does not seem right that mediators are to be required to ensure that arrangements are in place with regard to matters such as reconciliation, children and the availability of legal advice whereas legal representatives merely need to self-certify whether or not they have discussed reconciliation and mediation with parties. I am minded, therefore, to bring forward a government amendment at Third Reading which would strengthen the provisions in Clause 10 by requiring legal representatives to inform not only about marriage counselling and mediation but also about the need for parents to consider the welfare, wishes and feelings of their children when they are deciding arrangements for the future. I referred to that earlier.
I would not seek to place any such requirements on counsellors. The primary objective of counsellors is to help people with marriage difficulties. They are not involved in advising on legal process or negotiating financial settlements, nor in disputes relating to children, and should not be required to certify that they have discussed these matters. Both lawyers and mediators, on the other hand, must have regard to the primary principles of this Bill, one of which is that the parties to a marriage which may have broken down are to be encouraged to take all practical steps to save it. I therefore have no hesitation in making amendments which will more strictly enforce the role of lawyers and mediators in that respect.
In the light of that explanation and that I accept the principle of the amendment, insofar as I have described it as acceptable, I hope the noble Baroness may feel able to withdraw it.

§ Baroness David
My Lords, I am very grateful indeed for that very full and indeed interesting answer from the noble and learned Lord. I quite understand that he is taking a different attitude to marriage guidance counsellors and to mediators as far as the amendment is concerned. I am very grateful that he intends to bring forward amendments, possibly at Third Reading. That is a substantial concession from the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Clause 11 [Directions with respect to mediation]:

§ The Lord Chancellor moved Amendment No. 81: Page 7, line 7, leave out ("the parties") and insert ("each party").

§ The noble and learned Lord said: My Lords, in moving Amendment No. 81 I wish to speak also to Amendments Nos. 82 to 84, and to Amendment No. 85 in the name of the noble Earl, Lord Russell.

§ The amendments are intended to clarify the provisions with regard to meetings. I have tabled the amendments to make it clear that where parties are directed to attend meetings with a mediator for an explanation of mediation under Clause 11 they can attend those meetings separately, either at their own request or at the direction of the court. Concern was expressed at Committee stage by the noble and learned Lord, Lord Archer of Sandwell, on the possibility of intimidation where parties are required to attend together. I agree that that is something we should take all practical steps to avoid.

§ In addition, Amendment No. 82 makes it clear that each party should be given the opportunity to express his or her own view as to whether he or she wishes to pursue mediation at or after that meeting.

§ The noble and learned Lord, Lord Archer of Sandwell, also sought to make amendments to this part of the Bill, which makes special provision where there has been domestic violence. However, I am wary of imposing too many conditions in these matters. Mediation is not always inappropriate in cases of domestic violence; for example, where the violence occurred a long time in the past. In any case, people can be intimidated by their partners in many more ways than simply by physical violence. I therefore think it more valuable to make these broad amendments which allow parties to attend meetings separately in all cases if they wish to do so or the court considers it appropriate, and allow them to express their individual views as to whether or not they wish to proceed with mediation, having heard about and, better still one hopes, having understood what mediation is about.

§ The noble Earl, Lord Russell, sought to address this matter. From a communication that I have received from him, I think he was reasonably content with the way that I have addressed it. I beg to move.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendments Nos. 82 to 84: Page 7, line II, leave out ("the parties with an opportunity") and insert ("an opportunity for each party"). 41 Page 7, line 17, at end insert — ("( ) The parties are to be required to attend the same meeting unless —

(a) one of them asks, or both of them ask, for separate meetings; or
(b) the court considers separate meetings to be more appropriate.").

Page 7, line 20, after ("meeting") insert ("or meetings").

§ The noble and learned Lord said: My Lords, I have already spoken to the amendments, and I beg to move them en bloc.

§ On Question, amendments agreed to.

§ [Amendment No. 85 not moved.]

§ Clause 12 [Adjournments]:

§ Lord Irvine of Lairg moved Amendment No. 86: Page 7, line 30, at end insert ("provided that no adjournment may be ordered by the court with a view to inducing a party who has declined to participate in mediation to do so").

§ The noble Lord said: My Lords, I rise to move Amendment No. 86 to Clause 12 (1)(b), which provides for the court's power to adjourn for the purpose of enabling disputes to be resolved amicably.

§ There is a mistake in the Marshalled List. It states incorrectly that the amendment is at page 7, line 40. It is not: it is at page 7, line 30, at the end of Clause 12(1)(b), where the amendment proposes to add the words as moved.

§ The unquestioned general principle, which the Government assert time and time again, is that participation in mediation must be voluntary and not compulsory. The purpose of the amendment is to ensure that there are no restrictions—direct or indirect—on the generality of the proposition that mediation must be voluntary.

§ We know that the parties are to be informed about mediation facilities. They are also to be given an opportunity to avail themselves of those facilities. However, let us suppose that a party declines because, if a woman, she is intimidated by her husband, she fears that she will be unable to give a good account of herself, unrepresented, in front of the mediator, and perhaps not be able to speak up for herself as she would wish, both for herself and for the children. Let us suppose that she would prefer to be legally represented in court.

§ As I mentioned in Committee, the distinguished family lawyer, Ruth Deech, who is also the Principal of St. Anne's College, Oxford, has called attention to the dangers that mediation may hold for women. There are many who agree with her. The proposition that mediation, however hard the mediator tries, is always even-handed between the parties does not win universal acceptance from those who know about mediation in practice.

§ I come to the amendment. I understand only too well that, in the ordinary way, a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. Courts do say in practice to parties that there may not be much sense in going on with the battle and suggest that the parties go off to see if they can settle the matter between themselves. That often happens. However, I am 42 assuming a state of affairs in which there has been a prior refusal to participate in mediation—a position which a party is entitled to adopt if mediation is truly voluntary. It is critical that a court should never be entitled to adjourn court proceedings with a view to inducing a party whom the court thinks should be mediating to participate in mediation when that party has already decided not to do so. The point of the amendment is that it should be made plain that no court pressure of any kind may be brought on individuals to induce them to participate in mediation after they have decided not to do so.

§ In Committee the noble and learned Lord said: if the court feels that the parties, notwithstanding our efforts to inform them, do not really appreciate or have understood the efforts that have been made or realise how mediation could help them in the circumstances of their particular case, the court should invite them to attend a meeting at which that would be clearly explained to them—[Official Report, 23/1/96; col. 1023.] I may have misunderstood the noble and learned Lord, but to me that sounds uncomfortably as if he were approving of the court granting adjournments to pressure people into mediation when they have taken a principled decision not to take part in mediation—a process which we are constantly assured is voluntary. The principle of voluntariness is undermined if the court is empowered to adjourn court proceedings for the purpose of enabling a dispute to be resolved through mediation when mediation has been refused by one party. I beg to move.

§ The Lord Chancellor
My Lords, this is not the right time to go into detail about the research on mediation. However, the general findings with regard to mediation are that men and women both describe the process as fair, and women have reported a sense of empowerment and feel that their interests are articulated and treated with respect during the mediation process.
I agree entirely that mediation should be voluntary. That is the basis on which I have put all this forward. Coercive mediation such as, for example, some of the programmes one sees in the United States, may result in women feeling under pressure to reach unsatisfactory settlements. Much of the criticism of mediation that has been voiced from some quarters is based on mandatory, settlement-orientated programmes, in the United States, which are quite different from those which are in operation here.
I do not accept that the amendment is necessary. I feel sure that the court would not seek to impose mediation on people who did not want it. I think it inappropriate that we should, in a sense, limit the powers of the court in a way that I do not think anyone suggests the court would be likely to act. A court "inducing" someone to do something strikes me as perhaps not as appreciative of the fairness and impartiality of the court as some other form of words might be. I believe that our judges who deal with these matters are very sensitive to the attitudes of parties.
Therefore, while I entirely subscribe to the view that if mediation is to be successful it must be entirely voluntary, I do not agree that it is necessary that we put 43 the amendment into the Bill. So far as I know, there is no suggestion whatever in the Bill that the court may adjourn for any purpose analogous to this.
I wish to correct something. It has been drawn to my attention that, a few moments ago when speaking to an earlier amendment, I referred to Amendment No. 99A as my amendment. The propriety in that amendment belongs to the noble Lord, Lord Stallard. The Marshalled List has changed slightly since what I said was put together. I should have referred to Amendment No. 99B. Delighted as I am to refer to the noble Lord's amendment, on this occasion I had in mind to refer to my own.
I hope that, in the light of the explanation, the noble Lord, Lord Irvine of Lairg, may feel it appropriate not to press his amendment.

§ 5 p.m.

§ Lord Irvine of Lairg
My Lords, I confess that I am somewhat disappointed. I believe that it is important that mediation be voluntary. The sole purpose of the amendment is to ensure that it is. If "inducing" is a hard word to use of a court seeking to persuade an individual into a course of action which the court thinks more appropriate, I should be happy to soften the provision by using "encouraging" rather than "inducing" if that removes the offence.
However, I take it that the noble and learned Lord does not accept the amendment, and I certainly do not press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Baroness Hollis of Heigham moved Amendment No. 86A: After Clause 13, insert the following new clause— DIVISON OF PENSION ASSETS (".—(1) Section 25B of the Matrimonial Causes Act 1973 (benefits under a pension scheme on divorce, etc.) is amended as follows— (a) in subsection (2), after paragraph (b), there is inserted ", and (c) in particular, where the court determines to make such an order, whether the order should provide for the assets in respect of which the rights of the party with pension rights have accrued ("the pension assets") to be divided between the party with pension rights and the other party in such a way as to reduce the pension rights of the party with pension rights and to create pension rights for the other party;"; (b) in subsection (4), after "pension rights", there is inserted "or if the court makes an order that the pension assets should be divided"; and (c) at the end of subsection (4), there is inserted "save that, in the case of an unfunded pension scheme, no order may be made which would allow assets to be removed from the scheme earlier than would otherwise have been the case". (2) Section 10 of the Family Law (Scotland) Act 1985 (sharing of value of matrimonial property), is amended as follows— (a) in subsection (5) at the end of paragraph (b), there is inserted ", and (c) in the assets in respect of which either party has accrued rights to benefits under a pension scheme"; and. 44 (b) after subsection (5) there is inserted— (5A) In the case of an unfunded pension scheme, the court may not make an order which would allow assets to be removed from the scheme earlier than would otherwise have been the case.".").

§ The noble Baroness said: My Lords, Amendment No. 86A is consequential upon Amendment No. 10, which the House has debated and accepted. I beg to move.

§ Lord Clifford of Chudleigh
My Lords, share and share alike is an ideal which is fostered at the beginning of a marriage, through a marriage, and with children. However, because of the very presence of the children—

§ Baroness Hollis of Heigham
My Lords, I hope that the noble Lord will forgive my intervention. I defer to the noble Baroness, Lady Trumpington.

§ Baroness Trumpington
My Lords, may I ask whether the noble Lord is speaking to the amendment? He must do so.

§ Baroness Hollis of Heigham
My Lords, if noble Lords will forgive me, the amendment has already been spoken to in the debate on Amendment No. 10. Therefore I assumed that the consent of the House was in that sense a formal consent.

§ Baroness Trumpington
My Lords, I apologise to the noble Baroness. She is perfectly correct. The noble Lord will now have heard what she said. He cannot continue.

§ On Question, amendment agreed to.

§ [Amendment No. 87 had been withdrawn front the Marshalled List.]

§ Baroness Elles moved Amendment No. 88: Before Clause 15, insert the following new clause—