§ 3.5 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS SEROTA in the Chair.]
Clause 1 [Welfare of the child]:
Lord Meston moved Amendment No. 1:
Page 1, line 15, at end insert ("and whether any improper pressure has been exerted on the child to ascertain his wishes and feelings.").
§ The noble Lord said: Amendment No. 1 draws our attention to the wishes of children in disputes either between their parents or involving third parties, usually local authorities. Clause 1 provides that the child's welfare shall he paramount. There is nothing new about that. What is new for legislation in this country is that the Bill provides in Clause 1(1) a checklist of factors for the court to consider. That was the recommendation of the Law Commission.
The first factor in Clause 1(2) is,
the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)".
As the law stands already, the wishes of the child in every case are given due weight according to the circumstances. What is new is the express duty on the court. The purpose of Amendment No. 1 is to protect children from the possible consequences of having the consideration by the court of the wishes of the child being expressly spelt out in this way.
§ Lawyers discussing with a mother or father client an application or a possible application for residence or contact orders—as we must learn to call them under the Bill—are likely to go through the checklist with the client. The first matter a lawyer will ask about is the wishes of the child. If the parent concerned says that he or she does not know what are the wishes of the child, the lawyer is likely to advise the client to find out what those wishes are. Indeed he may well be tempted to advise the client to make perfectly sure that the child wishes to stay with the mother or father concerned. Even if the lawyer does not give that advice, the client, realising that the wishes of the child are an important consideration, may well be tempted to persuade the child to stay with him or her. The client may well have an ulterior motive, realising that if he or she keeps the child or children he or she may well be able to keep the house as well. One can see the kind of pressure that may be created for the child.1131
§ As the law stands, lawyers, courts and welfare offices are already well used to being presented with letters from children (said to have been freely written), tape recordings and even home videos in which the children are said to display their wishes and feelings for the benefit of whoever may be listening or reading. The consequence is that the other parent is likely to allege that the child has been unfairly persuaded or bribed. It is all very common to those who practise in this area
The wishes of the child are important the older the child is. The voice of the child should not be ignored. However, experience shows that children prefer not to have to choose. It has been wisely said that they have a right not to decide between their parents. They want to remain loyal to both parents. Indeed they may well say one thing to one parent and something else to the other parent. They may say one thing in one home and another thing in another home; they do not want to hurt either parent, and what is received is a very mixed message. Many children prefer to say absolutely nothing; they clam up. Some children become very angry at having to choose. Indeed this problem was well put—if I may trouble Members of the Committee by reading an extract from the decision of the Court of Appeal—in the case of Adams v. Adams in 1984. That decision said:
There was a passage in the welfare report with which I entirely agree, where the welfare officer stressed the importance of not allowing children to feel that they have to take the decision as between the father and the mother, with which of them they shall live. The pressures on children are quite sufficient when the marriage has broken down and one of the parents has left home without putting on them the additional burden of being made to feel that they have to decide their own future. The welfare officer said: 1 think that a decision about custody, care and control should therefore clearly be seen to be made by their parents or the court so that the responsibility does not rest on them.'
—that is to say, the children.
§ If the wishes of the children are to be a factor on the face of the Bill, I suggest that there should be a warning in the Bill which prevents anyone being tempted to exert unfair pressure on children. If the balance is struck in that way it will strengthen the value of the child's views and enable the child's views to be communicated to the court through the proper channels; that is, through a welfare officer or a social worker. I beg to move.
§ Lord Elwyn-Jones
Members on this side of the Committee are in full sympathy with the amendment moved by the noble Lord, Lord Meston. The importance of taking the child's wishes and feelings into account in family and related proceedings has been increasingly recognised by law, and by policy-makers, in recent years. But it is clearly a matter which must be handled with sensitivity and with care. We need to ensure that the children who wish to express their views are enabled to do so, while those who are reluctant are not subjected to pressure.
As a matter of language, I am not sure that I am totally wedded to the language chosen by the noble Lord, Lord Meston—much as I admire his skill in such matters—and perhaps something rather simpler, for example, 1132provided no child should be compelled to express his wishes and feelings",may cover the point with less complexity.
Perhaps at this stage I should conveniently refer to Amendment No. 7 which provides that:Whenever the court is under a duty to have regard to a child's wishes and feelings, or the level of his understanding, Rules of Court shall provide for the procedure to be followed".That is a matter which the noble and learned Lord the Lord Chancellor may care to contemplate either now or at a later stage of the Bill's proceedings. We fully support the purpose of the amendment, while not being absolutely wedded to the language which has been used therein.
§ 3.15 p.m.
§ Lord Simon of Glaisdale
Before venturing to comment upon the amendment, perhaps I may disclaim the very kind remarks that were made about me by the noble Lord, Lord Campbell of Alloway, and by my noble and learned friend the Lord Chancellor, on Second Reading. Although of course I have experience of such problems, that was some time in the past and the noble Lord, Lord Meston, is much more conversant with the current practice in such matters.
Certainly throughout my time, and in contradistinction to what was the custom at the beginning of the century, where the child was of sufficient age to be relied upon the courts took into account the wishes and feelings of the child. That is entirely right. However, I venture to think that that kind of matter is much better left to the court without any statutory direction, because circumstances vary almost infinitely.
I entirely agree with the noble Lord, Lord Meston, that there is a danger in all such matters of pressure being brought to bear on the child. I think that that relates especially to Amendment No. 2. I must say that I do not like the amendment. It seems to me impossible that it should go into the Bill as it stands, because what it means is pressure to influence and not to ascertain. As my noble and learned friend Lord Elwyn-Jones said, at present it does not really stand up to examination. Therefore I hope that the noble Lord, Lord Meston, will not press the amendment. I further hope that my noble and learned friend the Lord Chancellor will be somewhat guarded in his response to it.
§ Lord Renton
The observations of the noble and learned Lord, Lord Simon of Glaisdale, have enabled me to shorten my own remarks, because I agree with what he said. I simply add this. The relevant words in the Bill are as follows:A court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child".Those are fairly widely drawn words. It is unthinkable that the court, in trying to ascertain the wishes and feelings of the child, should not take account of any improper pressure which has been exerted. I agree with the noble and learned Lord in that I do not think it is necessary to write that provision into the Bill.
§ Lord Kilbracken
This raises an important question upon which I should like to speak for a moment or two. I remember when I was a ward of court, not so long ago as the noble and learned Lord, Lord Simon of Glaisdale, mentioned—namely, at the beginning of the century—but 50 to 55 years ago, when I was 12 or 15. The judge on any important occasion wanted to know what I wanted. To the best of my knowledge on every occasion he made an order in accordance with what I had asked. I found that an admirable arrangement. I must say that neither of my parents ever tried to influence me in any way. I was brought straight from school to the judge's chambers. However that situation does not always apply in the case of every parent.
Although one automatically feels that a child's wishes should be extremely important, I feel that in some cases a great deal of danger can arise. To give an obvious and perhaps foolish example, if you ask a child, "Do you want to go to school this afternoon, or do you want to go to the pantomime?" he will, without doubt, choose the latter.
But more important than that is the fact that a child is enormously influenced, without any improper words from either parent, by the parent with whom he happens to have been most recently. I think that we all agree that a parent who tries to change a child's mind in his or her favour is doing something which is deplorable and is most regrettable. If a child comes from one parent to the court—as he must—he will always be greatly influenced by the parent with whom he has last been. The child's wishes, although highly Important, must be treated with great caution.
I agree with the noble Lord, Lord Renton, who said that the word "ascertain" should be changed to "influence", but I would go further and leave out the word "improper". Any pressure would be improper and should not be permitted.
§ Lord Campbell of Alloway
I oppose the amendment because it adds words to the Bill without adding substance. That is not a good way to draft legislation. Of course there is a danger, but it is a danger which is well known to the court, and the court is well placed to deal with the danger to which the amendment adverts. In any event, a child is susceptible to his environment and pressure, whether proper or improper, and perhaps that is not entirely the total approach. The child may be influenced, but those are all matters within the competence and expertise of the court. As the noble and learned Lord, Lord Elwyn-Jones, pointed out, there are drafting difficulties with the amendment. However, that is not a problem. I support the concept of the amendment but, having regard to the expertise of judges, surely it is otiose.
§ Baroness Faithfull
I understand the reason for putting forward the amendment, but like the noble and learned Lord, Lord Simon of Glaisdale, and other noble Lords, I do not agree with it. As my noble friend Lord Renton has said, the Bill advises the court to have regard to:the ascertainable wishes and feelings of the child".First, it is important to know the wishes and feelings of the child; and, secondly, to know that the child has 1134 been asked. But one matter has been left out. If the court has to go against the child's wishes, it should be explained to the child why the court has done so.
With regard to pressure being put upon a child, in the case of a single parent she or he will fight hard for the child. I give one example, of a small boy whom I removed at the age of six. When he was grown up he told me that for four years he had hated me for removing him from his home, but now that he was 24 he realised that I had done the right thing. Children cannot always say what is the right thing for them. What is important is that they understand.
§ Lord Prys-Davies
We have great sympathy with the principle of the amendment. What is important however is that the expressed wish of the child should be genuine and freely arrived at. That is one of a number of considerations. I agree with my noble and learned friend Lord Elwyn-Jones that that idea should not be converted into a provision in the Bill. What is important is that when the magistrates or the court come to decide the issue, they should be aware of the child's view, which should be a genuine view. We on these Benches believe that that matter can best be provided for in the amendment tabled by my noble friend Lady David which we shall be discussing later.
§ Baroness Macleod of Borve
Perhaps I may ask, is it the view that the child should be represented? I know that in most courts the child will be represented separately from either of the parents; but if the child's view is to be known to the court, surely the Committee does not intend that the child should be asked in court what he wants to do. It is important that the child be represented. I believe that separate representation is dealt with later in the Bill. I hope that we do not decide upon the amendment intending that the child himself or herself would have to say what he or she wants in open court.
§ The Lord Chancellor
The background and reality of this matter was explained by the noble Lord, Lord Meston, when he moved the amendment. There is no doubt that in some cases there is a problem where one parent seeks to influence the child. In practice, there are more forms of influence than pressure; for example, by treating the child well. I have come across cases in which a child has been showered with gifts and other excellent treats shortly before a court case, no doubt in the hope that as a result the child will be favourably disposed towards the person providing the entertainment. That result can be reached by more ways than pressure.
Secondly, as I am sure the noble Lord, Lord Meston, would be the first to agree, the word "ascertain" in the amendment does not fit well with "ascertainable" in the Bill, having regard to the fact that it is proposed that the amendment will follow immediately what is in the Bill at line 15. It would not make a great deal of sense as it stands. Some further drafting would be required.
I suggest that the Bill is best left as it is on that aspect. The Bill does not make the child's wishes absolutely determinative of the matter; it puts the child's wishes at the forefront of the circumstances to which the court shall have regard. That is a valuable 1135 position for those wishes. It shows how important they are and yet shows that they may not determine the matter absolutely. That has two results. First, the fact that the child's wishes are not made determinative is important. It shows parents that to try to secure the child's support is not a valuable exercise. The less we elevate those wishes the better, from the point of view of making them a goal which a parent seeks to attain by influencing the child by pressure or otherwise. We want the child's free wishes—the wishes of a child as a person in his or her own right in all the circumstances and in as balanced a position as possible as between the parents, if it is the parents who are in dispute.
It is extremely detrimental to encourage the view that a parent who seeks to influence or put pressure upon a child is likely thereby in any way to advance that parent's own interest. The less encouragement for that idea there is the better. I believe that it is damaging and dangerous for the child. We have put:the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)",at the forefront of the matter. I believe that to put in anything of the kind referred to here would be to introduce into the checklist a different kind of consideration. The checklist is intended to draw attention to the matters at which the court should look. I should have thought it was obvious that if the child's wishes (so far as they are ascertained) are in some way improperly influenced, that would be a factor which the court should take into account. But the use of the word "wishes" is quite important in this context. It suggests something fairly deeply held by the child. We have used this phrase in an attempt to underline the point that it is what the child wishes—so far as that is ascertainable by the court—that has to be looked to. The general view which has been expressed by a good number of your Lordships is in accordance with that.
I agree with my noble friend Lady Faithfull that it is important that the child should understand what is going on and what the attitude of the court has been. The experience of the noble Lord, Lord Kilbracken, that the court gave effect to his wishes reflects what would happen very often unless there were some very strong feature in the other direction. The court's practice would be that, where the court was satisfied that these were the child's wishes and that the child was of sufficiently mature years and experience to have wishes, that would probably rule the matter.
I feel that the balance which has been struck in the Bill is a good balance. It takes account of the factors which the noble Lord, Lord Meston, has raised and which I acknowledge are important. They are factors which are quite difficult fully to describe in legislation which takes account of all the possible ways of securing that a child's wishes are in a certain direction. Therefore the matter is best left as it is.
The noble and learned Lord, Lord Elwyn-Jones, referred to Amendment No. 7 on procedure and we shall come to that. I think it may be that a fairly open way of arriving at the ascertainment of the child's wishes is appropriate, depending on what the court 1136 thinks is best in certain circumstances. As regards representation, we shall come to that also. In many cases I believe that the child's wishes would be ascertained by a reporting officer, a welfare officer or someone of that type who gives an account of what the child has said to him or her. I invite your Lordships not to agree to this amendment. I hope that the noble Lord will feel able to withdraw it.
§ Lord Meston
I am grateful to noble Lords for their support in this debate, at least of the sentiment underlying this amendment. 1 accept that the wording of the amendment leaves something to be desired and if I come back to the matter at a later stage it will be with improved wording.
The basic proposition which I sought to advance was that if the wishes of the child concerned are to be respected, they are wishes which should not be forced from that child. The pressure and the danger of pressure are well known and they arise in the early stages, before the case gets to court. If the Bill is enacted in its present form, a person looking at it will not necessarily realise that the wishes of the child are not to be determinative of the case. That person will see the wishes of the child as the first in the checklist of considerations for the court. Of course it is unthinkable that a judge would give undue weight to improperly expressed or improperly influenced wishes. But it is not unthinkable that parents will be tempted to exert pressure, as I have suggested.
Therefore with respect to the noble Lord, Lord Campbell of Alloway, I suggest that this amendment or something like it does more than simply add words to the Bill. It adds a warning on the face of the Bill. The child concerned should be spared the pressure to which I have alluded. I hope that this amendment will not distort the checklist, but I accept that the wording leaves something to be desired. I wish to consider the matter further, and for that reason I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Dundee
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.