§ 6.50 p.m.
§ The right reverend Prelate said: My Lords, I am grateful to those noble Lords who will be speaking today, some of whom, I know, will share my concern about the delay in implementing the Family Law Act 1996.
§ In 1996 the report of a Church of England working party, Putting Asunder, was published. It recommended that the irretrievable breakdown of a marriage should be the sole grounds for a divorce. The report was highly influential, but not influential enough; for the 1969 Act still retained fault as an essential sign of such irretrievable breakdown. The Family Law Act 1996, however, sought to retrieve that 875 fundamental principle. I believe that it was right to do so. It was approved by both Houses, and it would be very sad to lose it once again at this stage.
§ Before the Act came into force it was necessary for research to be carried out in connection with the information meetings and associated provisions. I congratulate the Lord Chancellor's office on initiating that extensive research and the researchers on the thoroughness of their work.
§ The research tested out six models of information meeting, but a flaw that was fundamental to all of them was identified. Quite simply, it was that the proposed purposes of the information meetings and associated provisions were too varied, confused and in part contradictory. The researchers therefore proposed two alternative models, one based on a mandatory information meeting and one on a voluntary one, which, they believed, could meet the weaknesses that they had previously identified. They proposed that these models be tested.
What is remarkable about the research results, however, is that although there was that fundamental weakness in all the models tested, nevertheless a remarkably high level of satisfaction was recorded. During the pilot programme, 9,900 married people applied to attend an information meeting and 7,863 actually attended. The report notes on page 22:
Attendees' first impressions of the information meeting were overwhelmingly positive. Exit questionnaires revealed that only 1% of attendees said that they had not found the meeting useful in some way".
§ The same point is emphasised on pages 29 and 30.
It was generally acknowledged in the debates on the Family Law Act that information meetings and appropriate follow-ups with marriage counsellors would save only a few marriages. Nevertheless, it was also recognised that seeing an appropriately trained person could help people considering divorce to be much clearer about what they should do. The research shows that both aims were met. The report states at page 32:
Although relatively few attendees of information meetings subsequently saved their marriage through counselling, there is evidence that counselling helped people to cope with the ending of their marriage".
Between 17 and 12 per cent of people who attended an information meeting took up the offer of a meeting with a marriage counsellor, depending on the model that was used. Half of those went with the intention of saving their marriage. The report states at page 34:
The majority of people were positive about the meeting with a marriage counsellor, believing that it would help them move on and clarify the next steps…just under half of those who went to a meeting with a marriage counsellor made an appointment for counselling afterwards. Of those who did go to counselling, 72% indicated that it had helped them to gain a better understanding of their relationship, but only 19% said that it had helped them to save their relationship".
The report continues at page 35:
It is clear that counselling helped some people to save their marriage and others to end their marriage and/or come to terms with the fact that their marriage was over".
§ Research also tested out the value of a more conciliatory approach to divorce through mediation. The results here were less positive, mainly, it seems, because people did not really understand what mediation could do or its relationship to solicitors. Nevertheless, the report certainly does not rule out the value of mediation in particular circumstances and it sets out the three conditions which must be met for it to be useful.
When it comes to information given at the meetings about children, the report states at page 49:
Over 80% said that the information about how children feel had been useful, 65% had found the information about making arrangements for children useful".
§ The researchers concluded that none of the models tested was quite right but that a new model could be developed, learning from the pilot evaluation. The fundamental point was that the initial information meeting needed to be focused much more precisely upon the person's or couple's stated needs, whether they were trying to save their marriage, be more certain about what they should do, end their marriage more amicably, or get information about dealing with the children and so on. People come at very different stages, with different expectations, and a catch-all information session cannot provide for this. Nevertheless, the researchers put forward two possible models which they believe could do so.
One fundamental difficulty is whether the information meeting should be mandatory, as the Act states. People who attended information meetings as part of the pilot project were equally divided on the issue. But, as the report states:
There was overwhelming support for the continuation of meetings at which attendance would be voluntary".
The report does not, however, rule out the possibility of a mandatory meeting altogether. It states:
Although some people resent having to attend a mandatory programme, the majority appreciate the experience and get something positive from it when it has a clear focus (such as on parenting or on dispute resolution)".
Drawing lessons from the pilot, the report concludes—I am referring to the summary of the final evaluation report—at pages 77 and 78:
Looking at the evidence and the information meeting pilot it is reasonable to conclude that information provision and the meeting with a marriage counsellor did and can support the principles of the Family Law Act. Some attendees have reflected carefully on the decision to divorce and some took steps to save the marriage; messages about reducing conflict and being conciliatory were understood and respected; and parents were helped to consider the needs of their children…the vast majority of those attending an information meeting described it as useful".
§ The report offers two alternative models. One is based upon a mandatory information meeting, in which the people concerned, in dialogue with a trained presenter, would be helped to state whether this was an exploratory dialogue to ascertain the state of marital breakdown; whether they were certain the marriage 877 was over but not certain how to proceed; or whether the marriage was in trouble and they were not certain what to do. Depending upon what emerged, the meeting would then have a sharp focus appropriate to the person's situation, with relevant core information, both verbal and written, with additional information being provided by a video or CD ROM relevant to where they were. The other model, based upon a voluntary meeting, would involve people receiving information and then choosing whether they wanted to have a meeting with a marriage counsellor and then go for counselling, or whether they wanted simply an information meeting following which they might go to counselling or might simply decide to proceed with a divorce.
§ There is an important section in the Family Law Act on marriage support. I have deliberately not dealt with that this evening because of time factors and because my colleague, the right reverend Prelate the Bishop of Guildford, is in touch with the noble and learned Lord the Lord Chancellor on this issue.
§ I believe that the fundamental principle in the Family Law Act 1996—namely, that divorce should be based upon irretrievable breakdown—is important. Furthermore, I believe that the extremely thorough research bears out, as I have shown, the value of information meetings and the associated provisions within the Family Law Act, provided that they are much more sharply focused in either one of the ways which the researchers suggest at the end of their report.
§ The present system of divorce does nothing to encourage people to face up to their responsibilities. Divorce is not only about ending a marriage but about making people free to marry again if they so choose. If they have not sorted out arrangements in relation to children, property rights and so on, trouble is simply being stored up for the future. The Family Law Act, with its information meetings and associated provisions, provides the best framework for people to deal with these issues with the minimum of aggression.
§ What is remarkable is that, despite the basic confusion which the researchers rightly identified, the information sessions produced a high level of satisfaction. I believe that the next stage of research needs to be initiated—the report states that piloting need not be a lengthy or complex process—and the Family Law Act implemented in the light of that research as soon as possible afterwards.
§ 7 p.m.
§ Baroness Crawley
My Lords, we are grateful to the right reverend Prelate the Bishop of Oxford for allowing us the opportunity to examine the question of how family life is faring in 21st century Britain, with special reference to the Family Law Act 1996.
Although I appreciate the concerns set out by the right reverend Prelate, it is surely right that unless Part II of the legislation can fulfil the principles of Part I, it should not go ahead. We know that the principles of Part I are about rescuing those marriages that can be rescued and about ensuring that children are least 878 exposed to conflict, distress and trauma; and that civilised relationships between the two people in question beyond marriage are supported.
As I understand it, the findings of government research into Part II were very disappointing. Very few people responded to invitations to a meeting with a marriage counsellor, and even fewer committed themselves to the process of conciliation as a vehicle for saving their marriage. In the light of such findings, it is important for the Government not to become "hung up" on the rigid question of whether the system ensures fault or no-fault divorce. Instead, they should look coolly and calmly for solutions that work, especially those that work in favour of the children of divorcing parents.
Children and families have been at the forefront of government policy. As chair of the Women's National Commission, I certainly make my views clear to government if I believe that they are dragging their feet over any aspect of policy that could improve family life in this country. Our recent response to the DTI's maternity review is a case in point.
But I have to say that on many aspects of family policy we are pushing at an open door with this Government. We have seen a number of significant improvements in the support given to families over the past four years. Expectant mothers have improved rights at work through a whole package of improved maternity measures. Childcare places will be created for 1.6 million children by 2004, as well as guaranteed nursery places for every four year-old who needs one. From 2003, fathers will receive paid paternity leave for two weeks for the first time ever. Mothers and fathers will have the right to take three months' parental leave in order to spend more time with young children under five—although I should like to see that leave paid for, because that would work far more effectively for low-income parents. Children and families in vulnerable areas will have access to £540 million of Sure Start programme funding; there is help for lone parents through the New Deal; and the working families' tax credit helps 1.5 million families, guaranteeing them an income of £214 a week. In addition, there is the increase in the rate of children's tax credit, from £8.50 per week to £10 per week for standard rate taxpayers from April this year. So this is not the record of a government whose cupboard is bare in terms of initiatives to promote and support family life in Britain.
There are those who would have us believe—and I assure the right reverend Prelate that I do not include him in this category—that family life in this country is disintegrating. I refer such people to the latest figures in this area issued by the Future Foundation. The majority of households in Britain see themselves as family units. Half of the population live within half-an-hour's journey of the place where they grew up. At least 50 per cent of those with a living mother or father see them at least once a week. Seventy per cent of those asked believe that family members should stay in touch, even if they do not have much in common.
879 So while it is important for us to ensure that divorcing families get the best deal possible through our legislation, we need to keep a cool head over the context in which our discussions take place.
§ 7.6 p.m.
§ Baroness Billingham
My Lords, I, too, thank the right reverend Prelate the Bishop of Oxford for initiating the debate. Like all his contributions, this one was sensible and sensitive.
My view is that we have to be realistic about what is achievable in this complex area. Not only statistics but our own experience and observations indicate that divorce is a sad and increasing factor in society today. Time does not stand still; nor should our role in government fail to respond accurately to current needs. We must be mindful not only of the need for planned legislation to be apt, but of the need for it to remain effective against a background of change and new circumstances.
When looking at research into Part II of the Family Law Act one is driven to the conclusion that, although the measures were well intentioned, the facts as presently assessed speak for themselves. The intention was to focus on saving saveable marriages and to attempt to lessen the trauma and stress, not only to the principal parties but most crucially to the children in the family. However, research indicates that only 12 per cent of those who received an invitation to a meeting with a marriage counsellor actually turned up; and of those who did, fewer than half were determined to save their marriage. Most damning of all is the finding that only 7 per cent of those who attended information meetings subsequently took part in mediation.
The process clearly failed, and the Government must be credited with acknowledging that and acting accordingly. It is therefore with confidence that I voice approval of the Government's strategy, which puts the needs of children at the core of the dealings with this acrimonious situation. We must never underestimate the trauma for young children in a domestic situation that is intolerably threatening. Children can be scarred and damaged for ever.
I make no claims to be remarkable in this distinguished. House—far from it. But in just one area I hazard a guess that I may be unique. I was brought up in care. I was an only child. My father was killed in the war and my mother contracted TB in the late 1940s, which in those days was almost a death sentence. My uniqueness lies in the simple fact that for four years, from five to nine years of age, I was brought up in care—fortunately in a jolly and down-to-earth family. But memories of my terror at the prospect of being alone in the world will never leave me. My story ended happily. A scientist somewhere discovered a drug called streptomycin. My mother was cured, she returned home and enjoyed a further 30 years of life.
But for some children, traumatised in a brutal, violent divorce process, the outcome is not so happy. So I know that the Government are sound in their approach, whether in focusing on the child's 880 opportunities in early years and on better economic conditions, or whether in providing stability and security for the child's future. The Government are right to focus their family strategy on ensuring that the next generation has the best possible start in life.
My noble friend Lady Crawley outlined a number of initiatives: Sure Start; Parent Network; family service units; the uprating of child benefits; the introduction of the working families' tax credit; the New Deal for Lone Parents; and reform of the Child Support Agency. All these and many other measures brought into play in the past four years are helping to lay the foundations of a decent chance for children caught up in a situation over which they have no control. I am confident that this strong, compassionate approach to family life will remain the cornerstone of the Government's actions.
In conclusion, I reiterate the fact that children must come first. That is the Government's view. This clear-sighted approach is right for today's families and today's children. It will form the basis of a better future for all of them.
§ 7.10 p.m.
§ Lord Goodhart
My Lords, the right reverend Prelate the Bishop of Oxford has raised some very important issues in this Question. I am in entire agreement with the general principles laid down in Section 1 of the Family Law Act 1996, which are: first, that the institution of marriage is to be supported; secondly, that the parties to a marriage that may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage; and, thirdly, that a marriage that has irretrievably broken down and is being brought to an end should be brought to an end with minimum distress to the parties and to the children affected. I also strongly support the right reverend Prelate in calling for the removal of "fault" as the basis for divorce and its replacement by "irretrievable breakdown of the marriage".
I have read a number of the speeches that were made in the debate on Second Reading of the Bill. which became the Family Law Act, on 30th November 1995. It was introduced by the noble and learned Lord, Lord Mackay of Clashfern, in a speech that demonstrated his profound religious beliefs and his commitment to the objectives of the Act. It was strongly supported by the right reverend Prelate, along with other Bishops, by the noble Lord, Lord Flabgood, and the late Lord Jakobovits. From these Benches, the Bill was supported—admittedly, I think, with somewhat varying degrees of enthusiasm—by my noble friends Lord Russell and Lady Hamwee and by Lord Meston. Had I been a Member of your Lordships' House at that time, I strongly suspect that I, too, should have supported it. However, we have to accept that the pilots have been discouraging. The comments that shall now make are mine, not those of my party: plainly, the issues involved are issues of conscience on which there is no question of there being a whipped vote.
881 With a degree of hindsight, I have to say that some of the provisions of Part II of the Act seem unrealistic. Section 8 requires the party making a statement of marital breakdown to have attended an "information meeting" at least three months before making that statement. That meeting must give the party attending the meeting an opportunity to have a meeting with a marriage counsellor. Many couples go through difficulties in marriage and receive great help from counselling. I should strongly support counselling; indeed, my wife was president of the London branch of the Marriage Guidance Council for several years. But by the time a party to a marriage gets to the point of wanting to serve a statement of marital breakdown it will almost certainly be too late in all but a small proportion of marriages to save it. Therefore, many people who are required to attend an information meeting as a condition precedent to making a statement will regard the meeting as a tiresome and pointless formality.
The right reverend Prelate proposes that there should be further pilot tests. Indeed, I realise that there is perhaps point in giving that process a further try. But it also has to be said that the pilots were carried out on a voluntary basis, and it is likely that those who are compelled to attend will be more hostile than those who have agreed to attend voluntarily.
I am also concerned about further defects in Part II of the Act. After the three-month period between the information meeting and filing the statement, there has to be a further nine-month period for reflection and consideration under Section 7 of the Act before a divorce order can be made. This means that the divorce takes a minimum of a year from the time that one of the parties first decides to proceed with the application. I do not believe that that reflects modern habits. In past years, there was a strong social pressure against cohabitation without marriage. If one of the parties to a marriage had formed a relationship with a new partner, he or she wanted a quick remarriage to legitimise that relationship and, indeed, to legitimise any possible children of it.
However, now that there is little or no stigma in cohabitation, divorce may not be sought for some years after the marriage has broken down—and, perhaps, not until after both parties have formed long-term, new relationships. In such a case, the requirement for the divorce process to take a minimum of a year seems to me to be pointless and likely to increase distress.
Finally, there is the question of mediation. I regard this as a welcome provision of the Act because there is no doubt that it can greatly reduce the cost and stress of resolving disputes over property and children. But it will work only if both parties are willing to participate. Section 13 of the Act enables the court to order a party to attend a meeting, even if he or she is unwilling to do so at that point. That is not necessarily unreasonable because a good many people misunderstand the purpose of mediation and may be persuaded by a meeting with a mediator to accept it. Many people 882 confuse mediation and counselling. Mediation is no doubt particularly desirable in cases that involve children.
It is important that mediation should not be carried out on the cheap. As the noble and learned Lord the Lord Chancellor said in the debate to which I referred earlier,fair arrangements … depend on skilled legal advice and representation.".—[Official Report, 30/11/95; col. 708.]As the noble and learned Lord has since become the hammer of legal aid, I wonder whether he would be willing to guarantee the provision of funds from the Community Legal Service to enable mediation to be effective.
The research report to which the right reverend Prelate referred suggested that only 10 per cent of the couples in the pilot scheme actually went to full-scale mediation, and that 37 per cent of those settled the issues through that mediation. This indicates that, in fact, the overall success rate was a little under 4 per cent, which is disappointing. Nevertheless, it would be regrettable if the option for mediation in some form or another—and, indeed, the availability of financial support for it—was not made available in any future legislation on the subject.
There is no doubt that the existing law, which dates from 1969, needs revision. As I have already said, it is long past the time to remove "fault" as the basis for divorce and replace it by "irretrievable breakdown". In a little more detail, the need for a five-year separation as a ground for divorce where one party objects to the divorce certainly seems to me to be unjustifiable and to give an opportunity to the non-consenting spouse to blackmail the other spouse.
I should just like to raise a short point that my noble friend Lord Lester of Herne Hill would have made had he spoken in tonight's debate. There is a particular problem with Jewish marriages, which was raised by Lord Jakobovits in the Second Reading debate of the Act and, indeed, raised again by my noble friend in a Private Member's Bill during the previous Session. I believe that the noble and learned Lord is sympathetic to the problem. When there is a review of divorce law, I hope that that can be dealt with at that stage.
I have to say—I regret not to be able to concur entirely with what the right reverend Prelate said, although I agree with him in many respects—that I am not convinced that Part II of the Act as it now stands is the way forward. But we unquestionably need to move on from the position in 1969. We need a further family law Act to bring divorce up to date. I wonder whether the noble and learned Lord the Lord Chancellor can offer us any prospect of doing so.
§ 7.20 p.m.
§ Baroness Buscombe
My Lords, I thank the right reverend Prelate the Bishop of Oxford for raising this important issue. I join him in looking to the noble and learned Lord the Lord Chancellor to tell us the 883 Government's intention with regard to any new legislation that may be brought forward to repeal this Act.
I start by asking when that will happen. I suggest that, given recent announcements by the noble and learned Lord the Lord Chancellor, to which I shall return, and to which I think we can all assume that the noble and learned Lord will allude in his response, my question may be otiose.
There is considerable evidence to suggest a fundamental decline in the traditional British family way of life. The number of marriages is declining every year, with 62 per cent in 1999 being conducted as civil ceremonies. Cohabitation comprises 70 per cent of first partnerships, with an increase in the number of women having children within such unofficial unions. Some 22 per cent of children were born to cohabiting couples in 1997, compared with 2 per cent in 1977. The number of lone parent families has increased dramatically from 570,000 in 1971 to 1,900,000 in 1999. In 1999, 144,600 divorces were recorded, representing a rate of 12.9 per cent of people divorcing per 1,000 of married population. Britain has the highest divorce rate in the European Union and the marriages of those previously married are more likely to end in divorce than are first-time marriages.
The noble and learned Lord the Lord Chancellor may refer to a report recently published by his department which confirms that,Fewer people are getting married than at any time in the past 40 years. These trends have caused considerable social concern motivating the previous government to put forward its proposals for divorce reform, in the firm belief that the current system does little to support marriage in trouble or to minimise the risks, particularly to children, when couples split up.There exists a great deal of uncertainty about what role law should play in family relations. It is generally agreed that the law cannot create happy, stable marriages or sustain unhappy ones, but it is expected that it should create a framework and appropriate processes which buttress and support family relationships in a variety of ways".As has already been said, the aim of the 1996 Act was to meet the twin objectives of saving saveable marriages and promoting a conciliatory approach to divorce, if divorce is the only option. It represented a watershed in divorce legislation, acknowledging divorce as a process rather than a finite event. Part I of the 1996 Act covers general principles. Part III covers mediation and legal aid and Part IV covers domestic violence.
Those parts have all been implemented and with some considerable success. For example, reforms introduced by Part IV, including the mandatory attachment of a power of arrest in the face of a threat of violence, as opposed to having to demonstrate that the applicant has suffered actual bodily harm, are much welcomed.
In addition, those measures set out in Schedule 6 relating to amendments to the Children Act 1989, which introduce the power to include an exclusion requirement in an interim care order and the power to include an exclusion in an emergency protection order, 884 have wide support. Also, the recent legislation concerning the division of pension rights has been warmly welcomed by those who practise in the field.
Part II, as your Lordships know, has not been implemented. Part II contains arrangements for information meetings, on the principle that parties to a divorce should be given quality, objective and factual information at an early stage. It provided for a preliminary cooling off period of three months after an information meeting, during which there could be no divorce proceedings. It also provided for an extension to that period of six months and required that the parties' financial arrangements should be finalised in advance. Pursuant to Part II of the Act, divorce could be granted only when all the financial arrangements had been finalised and were in place.
As has already been said, implementation of Part II was delayed pending the results of pilot schemes carried out between June 1997 and May 1999. The provisions which the pilot schemes were designed to test were the following. A party making a statement of marital breakdown must (except in prescribed circumstances) have attended an information meeting not less than three months beforehand; and those attending an information meeting should be encouraged to have a meeting with a marriage counsellor which, it was proposed, should be free for those eligible for non-contributory legal aid.
The pilot schemes examined different models of information meetings and meetings with the marriage counsellors. The aim was to direct a person's attention to the issues which should be considered when contemplating steps to end the marriage and to provide information on the various options for the resolution of difficulties, including the availability of marriage support services, mediation and legal services. It had also been hoped that the schemes might help to save perhaps not many but a number of marriages.
In summary, the results of the pilots showed that almost half of those who went to counselling attended alone, primarily, it seems, because their partner was unwilling to participate. The evidence suggested that counselling which follows an information meeting was of limited success in saving marriages and that the predictions of 5 per cent suggested in Parliament during the passage of the Family Law Act seem to have been a realistic target.
Sadly, by the time most people went to an information meeting it was too late for them to save their marriage. If the objective of providing information is to facilitate marriage saving, the evidence suggested that it would be more effective if it was provided while spouses were still together and before they made a decision to live apart. However—I believe that this point is crucial—although relatively few attendees at information meetings subsequently saved their marriage through counselling, there was evidence that counselling helped people to cope—I believe that the word "cope" is important—with the ending of their marriage.
885 In February 1998 the Lord Chancellor's Department decided that it would test the provision of the meeting with a marriage counsellor and that that should be evaluated as part of the research programme. In summary, the meetings with marriage counsellors seemed to be particularly helpful to those who were uncertain about their marriage and had attended an information meeting not knowing where to turn. We should remember that many people in this situation suffer tremendous isolation and the meetings offer a possibility for communication. Some attendees felt that the one-off intervention of the meeting was enough to help them to work on their marriage without the need for further counselling. Others saw the meeting as a gateway to the counselling process as it dispelled preconceived ideas about counselling and enabled them to view it as a positive intervention in helping to restore their marriage.
It was hoped that the Family Law Act 1996 would help to encourage more conciliatory divorce, placing increased emphasis on providing alternative dispute resolution mechanisms, such as mediation, which promote private ordering and consensual decision-making.
The pilot schemes were not set up specifically to divert people into family mediation, but there were expectations that the delivery of information would encourage greater numbers of people to use it. Those who went to mediation did not always find that it was successful, particularly if both parties were not working towards similar goals. The research concluded that in essence many factors need to be in place before mediation works successfully.
Following consideration by the Government of the results of the research, the final report on the pilot schemes was published by the Lord Chancellor's Department earlier this year. It concluded that none of the models tested should be implemented, but recommended—as has already been said by the right reverend Prelate the Bishop of Oxford—that several positive findings from the pilots could be incorporated into a new model.
For example, there was overwhelming support for the continuation of meetings at which attendance would be voluntary. The report also stated that information meetings had a lot to offer and that attendance at an information meeting led to increased knowledge about marriage support and the options available.
However, the report also stated,What emerged strongly in the pilots across all the models was the stark reality that a standardised 'one size fits all' approach to the provision of information will be much less effective than a model of information provision which is designed with an element of flexibility, and which allows for some personal tailoring in the content of the information to be delivered by a presenter".Such a conclusion seems somewhat predictable given that no one person's experience and needs will be the same as another.
Turning to the present, it is unclear whether the Government intend to reintroduce the principles behind Part II, albeit with a different approach, to 886 reflect the positive findings of the pilot schemes, or whether they are minded to abandon its aims altogether. The government press release issued on 16th January 2001, wherein the noble and learned Lord the Lord Chancellor confirmed that he would be asking Parliament to repeal Part II of the Family Law Act 1996, did not, with respect, make clear the intention of the noble and learned Lord.
Do the Government intend to reintroduce the principles behind Part II, albeit with a different approach, to reflect the positive findings in the research; or do they propose to abandon its aims altogether? I hope that the noble and learned Lord the Lord Chancellor will make clear the Government's intentions. There is considerable disappointment among many who believe that Part II should be implemented, certainly in principle, while others, including the Solicitors Family Law Association, although supporting moves towards no-fault divorce, said that,all those who have struggled to understand how it was supposed to work will be pleased to see the back of it".In contrast, the Family Law Consortium stated that,this U-turn arrives from out of the blue and will be an enormous disappointment to those who support the development of an environment in which there are constructive resolutions to the problems of separation and the Government has not yet given mediation a chance to work".Sara Robinson, a member of a London-based firm, said:The Act has much public support and the support of the vast majority of professionals working with families involved in family breakdown. It provides a formal structure for a way of helping clients and families that our practice shows can and does work".David Hodson, a solicitor and mediator with the Family Law Consortium, said that,the new system would have put the process of divorce firmly where it belongs"—and I think that this is well put—in the hands of the married couple rather than in the hands of the lawyers".He went on to say that this is a wasted opportunity.
Only yesterday I had the benefit of a long conversation with a senior member of the Family Bar with the benefit of 20 years' experience in the field who is also a board member of the Family Mediators Association. He said:Looking at the balance of the Act, I, for one, see great advantage in the statement of marital breakdown. It eliminates the business of fault finding, which rarely achieves much and, in certain cases, can be the cause of tremendous resentment".He went on to say that those sections of the Act which deal with information meetings and arrangements for the future seem to be sensible and eminently achievable. Parties should settle their financial affairs and the arrangements for the children before they are entitled to a divorce order. I think that it is fair to say that that happens generally in good practice at the moment.
It is also right to say that there is a view among practitioners that some of the confusion and misgivings about Part II arise because of unclear and 887 thereby unsatisfactory drafting of the Act. For example, there seems to be a misconception that the legislation, if implemented, would force parties down the mediation route and into an unsatisfactory negotiated settlement, particularly in relation to financial aspects. Section 13, which relates to the resolution of disputes, is in fact couched throughout in the permissive not the mandatory. However, Section 29, relating to mediation and legal aid, is couched in the mandatory. That is a problem.
It is also felt by some that Section 7(1)(a) and (b) of the Act relating to a period for reflection and consideration are quite meaningless provisions. What is it thought that the parties are otherwise doing? Are they positively looking forward to the date when they can obtain the divorce order, ignoring their financial arrangements and responsibilities towards the children? I think not.
It quickly becomes clear that whatever our own personal view with regard to the way forward, we must legislate with extreme care. On balance, there is much to be said in favour of supporting the implementation of Part II subject to the various caveats which I have just raised. That said, translating good practice and common sense into legislative provisions does not always work. I therefore join other noble Lords who have spoken this evening in looking forward to hearing from the noble and learned Lord the Lord Chancellor whether it is the Government's intention to bring forward Part II in a new, much improved and thereby workable format which implements the principles of Part I, or to scrap it altogether.
I close by making a brief reference to the remarks of the noble Baroness, Lady Billingham. She rightly referred to the priority of the children. I entirely agree with her that the interests of the children should be paramount. Section 11(3) of the 1996 Act states:In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount".That is already stated clearly in Part II of the Act.
§ 7.36 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, some of your Lordships may have been a little puzzled by the terms of this Question for two reasons: first, because I announced on 16th January by a parliamentary Answer that the Government were not satisfied that it would be right to proceed with the implementation of Part II and that we would invite Parliament to repeal the relevant sections once a suitable opportunity arose; and, secondly, because we have already brought many of the provisions of the Act into force. We have implemented Part I which establishes the principles underlying the Act; Section 22 in Part II which gives me the power to make grants to marriage support services; Part III which enables public funding to be made available for mediation—perhaps I may say to the noble Lord, Lord Goodhart, that this has now been incorporated into the Legal Services Commission funding code so that funding is available for mediation; and Part IV (with the exception of Section 60) which improves and 888 strengthens the law relating to domestic violence, which I was pleased to hear was welcomed by the noble Baroness, Lady Buscombe. All of these provisions will remain in force and are unaffected by my decision not to implement Part II. None the less, I am grateful for the opportunity the Question has provided to debate these issues.
The family is the bedrock of a strong society in which children can grow up to fulfil their potential. We are firmly committed to supporting marriage and stable relationships and to save marriages wherever possible. Unavoidably, some marriages break down. When they do, we must enable families to receive the advice, support and information they need to help them make arrangements for the future with the minimum of acrimony and in a way which safeguards the welfare of their children.
These objectives are in Part I of the Act, and we are committed to them. However, as I explained to the House in January, the Government do not believe that Part II would have met these objectives. This view is shared by among others the President of the Family Division, the Senior District Judge, the Law Society the Solicitors Family Law Association and the Family Law Bar Association; and we heard from the noble Lord, Lord Goodhart, many of his criticisms well articulated.
Unfortunately, Part II is drafted in such a way that it must be implemented as a whole. It is not an à la carte menu but table d'hôte: you take it all or not at all. I have to confess that the decision I had to make was not an easy one. However, the research on the information meeting pilots showed that the meetings were not effective in helping most people save their marriages. They came too late; they did not provide people with information tailored to their personal circumstances, as has already been mentioned; they tried to achieve the incompatible objectives of saving marriages and informing people about divorce; and they failed to secure the involvement of both parties.
Also, the delay and complexity of the procedures in Part II, to which the noble Lord, Lord Goodhart, referred, would have meant families undergoing a protracted period of uncertainty before the arrangements for the future could be resolved and the marriage ended. Anyone wanting a divorce would first have had to attend an information meeting, whether they wanted it or not, and then would have had to wait three months following the meeting before the statement of marital breakdown could be filed with the court, then 14 days for the other party to he informed, then nine months for reflection and consideration before the divorce order could be made, and six months on top of that if there were children or if the other party asked for further time to reflect.
Those are just the statutory minimum periods. In reality, a divorce would have been likely to have taken at least 15 months if the couple did not have children and 21 months if they did, and it could have taken much longer. Those delays could have added to the stress experienced by parting couples and might well 889 have increased acrimony. Prolonged uncertainty and lack of settled arrangements would not have been in the best interests of the children.
There are strong views that divorce must continue to be fault-related to mark responsibility for marriage failure and equally strong views on the other side that divorce should not be fault-related because irretrievable marriage breakdown is a fact and the truth is more complex than that one party was to blame and the other not.
Fewer than 10 per cent of divorce cases are fought out through the courts. The majority are uncontested and dealt with on paper. My Ministers and I receive voluminous correspondence on the broadest range of legal subjects, but we receive no letters at all from the public asking for changes in the grounds of divorce. The focus should be not on dogma, either way, but on the principles set out in Part I of the Family Law Act.
Preventing petitioners for divorce from alleging fault against their spouse would not influence the way in which the parties conducted themselves during the divorce process, nor are the fault grounds for the proceedings any cause in practice for acrimony in divorce. There will have been acrimony in plenty before the proceedings started. The current system is sometimes described as though it involved courtroom battles in which the parties were obliged to make ever more outrageous allegations against each other in order to obtain a divorce. That is not true. In the very small number of cases that are fought, this is probably because of the bitterness and unhappiness that had built up before proceedings were begun.
It is much more important to have family policy focused on practical measures that help families and improve the lives of children. I have increased funding to marriage and relationship support organisations to £4.5 million in 2001–02 and £5 million in 2002–03 and have established an advisory group on marriage and relationship support to develop a new strategy and to advise on how the funding should be spent. Improved ancillary relief procedures were implemented in June 2000 and pension sharing in December. There will be consultation and piloting of procedural changes to improve the consideration given by the courts under the current law to the arrangements made by parents for their children following divorce.
We have recently announced plans to pilot family advice and information networks from October 2001. The networks will act as the first port of call for people 890 seeking advice and information on family problems and disputes. They will provide families with or refer them to a range of co-ordinated services, including legal advice, information, marriage counselling, contact centres and family therapy—whatever meets their individual needs.
One of the services available through the networks will be family mediation. Some in the media presented my decision not to implement Part II as signalling a withdrawal of support for mediation. That is not so. The research on family mediation published by the Legal Services Commission in December 2000 indicated that, while it is likely to remain a minority choice, mediation has a valuable role to play in resolving some family disputes.
Relationship breakdown and the fate of the children involved can be part of a cycle of social exclusion, debt, unemployment, poor housing and child poverty. The Government are committed to ending child poverty in 20 years and halving it in 10. We are working across Whitehall on initiatives such as Sure Start and the Children Fund to ensure that we help families in greatest need and mobilise the resources available in local authorities and community-based groups, as well as central government.
We have created the Children and Family Court Advisory and Support Service—CAFCASS—which will provide a child-focused service that will serve children better and will ensure that their views and interests are made known to the courts when decisions are made on issues relating to their welfare and upbringing. Financial support has also been given to the National Association of Child Contact Centres. Contact centres are an increasingly important part of the process of enabling children and their parents to make the practical arrangements necessary on divorce.
I welcome the initiative of the right reverend Prelate in raising the issue today. As he said, I have also benefited recently from a most useful discussion with the right reverend Prelate the Bishop of Guildford. I acknowledge that the Church has a vital role to play in this area.
Part II of the 1996 Act would not have given families the help that they need. It was not the answer. It would have made matters worse. Our new focus and these initiatives will be more effective in helping to support families and improve the lives of children.
§ House adjourned at twelve minutes before eight o'clock.